Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

WESTERN DIVISION

NATIONAL ASSOCIATION OF THE DEAF, on behalf of its members, C. WAYNE DORE, CHRISTY SMITH, LEE NETTLES, and DIANE NETTLES, on behalf of themselves and a proposed class of similarly situated persons defined below,

CIVIL ACTION NO.
CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs,

v.

MASSACHUSETTS INSTITUTE OF TECHNOLOGY,

Defendant.

Plaintiffs, the National Association of the Deaf, on behalf of its members, and C. Wayne

Dore, Christy Smith, Lee Nettles, and Diane Nettles, on behalf of themselves and a proposed

class defined below, by and through undersigned counsel, file their Class Action Complaint for

Declaratory and Injunctive Relief and respectfully allege as follows:

INTRODUCTION

1.

Defendant Massachusetts Institute of Technology (“MIT” or “the Institute” or

“Defendant”) makes available a variety of online content on websites that have received, to date, at least 125 million visitors.1 MIT makes thousands of videos and audio tracks publicly available

for free to anyone with an Internet connection, on broad-ranging topics of educational or general

interest. With only a few keystrokes, anyone can access videos ranging from campus talks by

President Obama, Noam Chomsky and other “Laureates and Luminaries,” to introductory classes

1
2015).

MIT, About OpenCourseWare, http://ocw.mit.edu/about/ (accessed February 3,

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 2 of 32

in topics such as computer programming, to higher-level classes in topics such as business and

mathematics, to educational videos made by MIT students for use by K-12 students.

2.

While MIT claims to make this online content -- which constitutes important

services, privileges and advantages that it provides to the general public -- “open and available to

the world,” it has largely denied access to this content to the approximately 48 million -- nearly

one out of five -- Americans who are deaf or hard of hearing. Many of these individuals require captioning to meaningfully access the audio component of online audiovisual and audio content.2

Much of MIT's online content is either not captioned, or is inaccurately or unintelligibly

captioned, making it inaccessible for individuals who are deaf or hard of hearing. Just as

buildings without ramps bar people who use wheelchairs, online content without captions

excludes individuals who are deaf or hard of hearing.

3.

MIT is fully aware that captioning is necessary to make online content accessible

to deaf and hard of hearing people. Indeed, MIT, through its News Office, recognized years ago that “[c]losed captions make videos accessible to those who are deaf or hard of hearing . . . .”3

4.

Plaintiffs the National Association of the Deaf (“NAD”), on behalf of its

members, and C. Wayne Dore, Christy Smith, Lee Nettles, and Diane Nettles, all on behalf of

2

See, e.g., Resolution Letter in Case No. 15-13-6001 from U.S. Dep’t of Educ.,

Office for Civil Rights, Region XV, to Santa J. Ono, President, at 9-10 (Dec. 18, 2014),

http://www2.ed.gov/documents/press-releases/university-cincinnati-letter.pdf (“Captioning for

the audio portion of a video is important, as individuals who are deaf or hard of hearing may not

be able to hear the auditory content. Synchronized captioning is also necessary so that a person

reading captions can watch the speakers on a video and associate relevant body language and

actions with the speech.”); World Wide Web Consortium (W3C)’s Web Content Accessibility

Guidelines (“WCAG”) 2.0, Understanding Success Criterion 1.2.2,

http://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-captions.html

(documenting that captions enable people who are deaf or hard of hearing to watch media).

3

Robyn Fizz, With Move to Kaltura, MIT TechTV now supports closed captions,

MIT News (Dec. 2, 2010), http://newsoffice.mit.edu/2010/techtv-captions (accessed February 6,

2015).

-2-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 3 of 32

themselves and a proposed class defined below, bring this civil rights action against Defendant

MIT to enforce the requirement of Section 504 of the Rehabilitation Act of 1973 (“Section 504”)

that an educational institution receiving federal financial assistance -- such as the millions of

dollars in federal financial assistance that MIT receives each year -- must not deny persons with

disabilities the benefits of its programs and activities, an obligation that applies to “all of the

operations of . . . a college, university, or other postsecondary institution . . . .” 29 U.S.C. §

794(b)(2)(A).

5.

Plaintiffs also seek to enforce Title III of the Americans with Disabilities Act

(“Title III”), which requires, among other things, that a public accommodation: (1) not deny

persons with disabilities the benefits of its services, facilities, privileges and advantages; (2) not

provide such persons with benefits that are unequal to those provided to nondisabled persons; (3)

provide auxiliary aids and services -- including captioning -- where necessary to ensure effective

communication with individuals with a disability, and to ensure that such persons are not

excluded, denied services, segregated or otherwise treated differently than other individuals; and

(4) utilize administrative methods, practices and policies that provide persons with disabilities

equal access to its online content. Under Title III, places of accommodation include an

“undergraduate, or postgraduate private school, or other place of education.” 42 U.S.C. §

12181(7)(J).

6.

Because Defendant MIT receives federal financial assistance and is a place of

public accommodation, it is subject to Section 504 and Title III.

7.

By not providing captioning, MIT deprives deaf and hard of hearing individuals

the benefits of its online content, benefits afforded to nondisabled individuals, thereby increasing

the sense of isolation and stigma that Title III, as well as Section 504, were meant to redress for

-3-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 4 of 32

individuals with disabilities. As the Department of Justice has stated, “[b]eing unable to access

websites puts individuals at a great disadvantage in today’s society, which is driven by a dynamic electronic marketplace and unprecedented access to information.”4

8.

Despite requests by the NAD to MIT to ensure that its online content has timely,

accurate captioning, MIT has done so only with regard to a fraction of such content, and even

then inadequately.

9.

MIT’s denial of much of its publicly available online content to deaf and hard of

hearing persons violates Section 504 and Title III. Remedying these violations is critical to these

statutes’ goal of ensuring that people with disabilities have the same access that others take for

granted.

10. Accordingly, Plaintiffs seek injunctive and declaratory relief to ensure that deaf and

hard of hearing individuals have equal, effective, and timely access to MIT’s publicly available

online content.

JURISDICTION AND VENUE

11. The claims alleged arise under Section 504 and Title III such that the jurisdiction

of this Court is invoked pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has jurisdiction

over Plaintiffs’ claims for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and

2202 and Rule 65 of the Federal Rules of Civil Procedure.

12. Venue over Plaintiffs’ claims is proper in the District of Massachusetts because

Defendant resides in the District of Massachusetts within the meaning of 28 U.S.C. § 1391, and

4

U.S. Dep’t of Justice, Statement of Eve L. Hill Before the Senate Comm. on

Health, Educ., Labor & Pensions, at 3 (May 14, 2013), available at

http://www.justice.gov/iso/opa/ola/witness/05-14-13-crt-hill-testimony-re-the-americans-with-

disabilities-act-and-entertain.201372314.pdf.

-4-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 5 of 32

because the events, acts, and omissions giving rise to Plaintiffs’ claims occurred in the District of

Massachusetts.

13. Assignment to the Western Division is appropriate pursuant to Rule 40.1(D) of

the Local Rules of the United States District Court for the District of Massachusetts.

PARTIES

14. Plaintiff the NAD is the nation’s premier civil rights organization of, by, and for

deaf and hard of hearing individuals. The NAD is organized as a non-profit corporation under

the laws of the State of Maryland and has its national headquarters in Silver Spring, Maryland.

The NAD’s membership includes individuals and associations from all fifty states and

Washington, D.C. The NAD is also the United States member of the World Federation of the

Deaf, which comprises more than 120 national associations of deaf people.

15.

The NAD’s mission is to preserve, protect and promote the civil, human and

linguistic rights of deaf and hard of hearing people in the United States of America. This

mission includes ensuring that important tools of daily life -- such as websites conveying useful

and educational information to the general public -- are accessible to deaf and hard of hearing

people.

16. The NAD furthers this mission in a variety of ways. For example, the NAD

provides guidance about effective captioning on its website and administers the Described and

Captioned Media Program (“DCMP”) through a cooperative agreement with the U.S.

Department of Education. The DCMP promotes equal access to communication and learning

through described and captioned educational media. The DCMP provides services designed to

support and improve the academic achievement of students who are blind, visually impaired,

deaf, hard of hearing, or deaf-blind. The DCMP has a library of more than 4,000 titles of

-5-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 6 of 32
described and captioned educational media available for loan to teachers, parents, and students who are deaf, blind, hard of hearing, visually impaired, or deaf-blind.
17. Additionally, the NAD works for passage of legislation guaranteeing equal access and effective communication for individuals who are deaf and hard of hearing. For example, the NAD has been instrumental in the passage of the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”), P.L. No. 111-260.
18. The NAD also devotes resources to educating its members and members of the public regarding their right to access educational programs by publishing position papers on its website.
19. Further, NAD has strongly advocated for access to online video content through captioning of audio and audiovisual material in all distribution methods, including internet streaming and downloading. NAD filed suit against Netflix, alleging that the company’s failure to provide closed captioning on its streaming video content violated the ADA, which resulted in a consent decree requiring Netflix to provide captions on 100% of its on-demand streaming content by September 30, 2014. Nat’l Ass’n of the Deaf v. Netflix, Inc., No. 11-cv-30168-MAP (D. Mass. Oct. 11, 2012) (Dkt. No. 88). Similarly, in June 2013, NAD announced that it was working with Apple on captioning of Apple’s iTunes library of television and movie offerings to ensure that every title in the iTunes library will contain closed captioning or subtitles by June 2015. More recently, the NAD reached an agreement with VUDU, Inc., for VUDU to caption 100% of its online content by January 16, 2015, and all newly acquired content thereafter.
20. Plaintiff C. Wayne Dore is a resident of Amherst, Massachusetts. Mr. Dore is substantially limited in the major life activity of hearing, and he requires materials to be in an
-6-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 7 of 32

accessible format -- including captioning -- to be able to participate in and receive the benefit of

MIT’s online content.

21. Plaintiff Christy Smith is a resident of Colorado and is substantially limited in the

major life activity of hearing. Ms. Smith requires materials to be in an accessible format --

including captioning -- to be able to participate in and receive the benefit of MIT’s online

content.

22. Plaintiff Lee Nettles is a member of NAD and is a resident of Westfield,

Massachusetts. Mr. Nettles is substantially limited in the major life activity of hearing, and he

requires materials to be in an accessible format -- including captioning -- to be able to participate

in and receive the benefit of MIT’s online content.

23. Plaintiff Diane Nettles is a member of NAD and is a resident of Westfield,

Massachusetts. Ms. Nettles is substantially limited in the major life activity of hearing, and she

requires materials to be in an accessible format -- including captioning -- to be able to participate

in and receive the benefit of MIT’s online content.

24. Defendant MIT is one of the country’s most distinguished institutions of higher

education. Defendant MIT is a corporation incorporated and with a principal place of business in

Massachusetts.

25.

On information and belief, MIT has received at all times relevant hereto, and

continues to receive, significant federal financial assistance. 29 U.S.C. § 794(a)-(b). This

financial assistance has in the past included federal funding related to web accessibility and,

separately, to study learning in the context of massive online open courses (“MOOCs”).

-7-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 8 of 32

26. For example, MIT has received federal funding from the National Science Foundation to study, beginning in 2012, learning in the context of, and data generated by, MIT’s first MOOC.5
27. As an “undergraduate, or postgraduate private school,” MIT is a place of public accommodation under the ADA. 42 U.S.C. § 12181(7)(J).
FACTS APPLICABLE TO ALL CLAIMS I. MIT’s Online Content.
28. MIT creates and produces online content that is made available for free to the general public, and also controls, maintains and/or administers webpages, websites and other Internet locations (“MIT Platforms”) on which online content is made available to the general public. For at least the last decade, MIT has made “open and available to the world” this online content, which consists of courses, as well as other educational and general interest content.6 Millions of people across the globe now access the online content produced and/or made available by MIT.7
29. MIT Platforms include without limitation: a. MIT OpenCourseWare (“OCW”); b. MIT Video; c. MIT on YouTube;

5

Lori Breslow et al., Studying Learning in the Worldwide Classroom: Research

into edX’s First MOOC, Res. & Prac. Assessment, Summer 2013, at 13,

http://www.rpajournal.com/dev/wp-content/uploads/2013/05/SF2.pdf.

6
2015).

MIT, About OpenCourseWare, http://ocw.mit.edu/about/ (accessed February 3,

7

Id.

-8-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 9 of 32
d. MIT on iTunes U; e. MIT Museum’s online content; f. MIT TechTV; and g. edX / MITx. 30. Public comments on some of MIT’s Platforms reveal the breadth of the audience benefitted by these videos and how enthusiastic that audience is for the opportunity to access the content. For example, public comments on the computer science course that MIT makes available on iTunes U state, “Five stars for simply allowing me the opportunity to learn from such a great school.”; “Welcome to the future of self taught education. I get the benefit of an amazing education and I don’t have to take out $150,000 in student loans to pay for it!”; “Anyone who wants to be educated can have this information for free! Thank you MIT and Apple.”; “I wanted to learn Python for a new project I was thinking about doing, so I figured I would give this course a chance since it is taught in Python. Very glad I did it . . . . It has changed the way I think about programming, and I am looking forward to taking the Algorithms course next.”; “Wow. This is AMAZING!!! And he was right when he said you can’t be under qualified. Im [sic] only 14 and learned a ton from this.”; and “I attended law school. Soon after graduation I realized I had trained myself in arts outdated. Thanks to MIT for giving me the opportunity to ‘attend’ world class CS courses. Sharing is the beauty of the Internet.” Similarly, in response to the Lean Six Sigma video that MIT makes available on YouTube, public commenters note, “Please upload more videos. I really love to learn from your world class professors.”; “please more videossssssssssssssss”; and various commentators thanking MIT for
-9-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 10 of 32

making the content publicly available. Also of note among the comments on this video are multiple requests for subtitles, i.e., captioning.8
31. In addition, via many of the MIT Platforms, including MIT Video, MIT Tech, and MITx, MIT encourages and facilitates viewers sharing its online content on social media.
32. However, much of the online content produced by MIT, and/or made available on MIT Platforms, has no captioning, or has captioning that is so inaccurate as to make the content inaccessible to deaf or hard of hearing individuals.
33. MIT has frequently failed to provide accurate captioning to online content that it creates and/or produces.
34. Further, on information and belief, MIT uses administrative methods, practices, procedures and policies which result in online content that it creates and/or produces failing to have accurate captioning.
35. Also on information and belief, MIT fails to have in place administrative methods, practices, procedures and policies that ensure that online content that it creates and/or produces has accurate captioning.
36. MIT has also frequently failed to ensure that online content made available on MIT Platforms has accurate captioning.
37. On information and belief, MIT uses administrative methods, practices, procedures and policies which result in online content lacking accurate captioning being made available on MIT Platforms (regardless of whether that content was produced or created by MIT).

8

MIT OpenCourseWare, Ses 1-2 | MIT 16.660 Introduction to Lean Six Sigma

Methods, January (IAP) 2008 (July 6, 2009), https://www.youtube.com/watch?v=PQspf3q12mo

(accessed February 3, 2015).

-10-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 11 of 32

38. MIT also on information and belief fails to have in place administrative methods, practices, procedures and policies that ensure that online content made available on MIT Platforms has accurate captioning.
39. For example and without limitation, on information and belief, MIT has not attempted to require that online content created by MIT personnel or professors be accurately captioned as a condition of that content being made available on MIT Platforms.
40. In addition, MIT often makes uncaptioned or inaccurately captioned online content available on its Platforms without itself first adding accurate captioning.
41. A review of some examples of MIT’s publicly available online content reveals the breadth of content available, the benefit that content confers to members of the general public, and that much of the benefit of that content is denied to deaf and hard of hearing persons because it does not have accurate captioning.
A. MIT OCW 42. MIT describes its OpenCourseWare (“OCW”) as a “web-based publication of virtually all MIT course content. OCW is open and available to the world and is a permanent MIT activity.”9 MIT further states that “[t]hrough OCW, educators improve courses and curricula, making their schools more effective; students find additional resources to help them succeed; and independent learners enrich their lives and use the content to tackle some of our

9

MIT, About OpenCourseWare, http://ocw.mit.edu/about/ (accessed February 3,

2015); accord MIT OpenCourseWare, 2006 Program Evaluation Findings Report (June 5, 2006),

at 1, available at http://ocw.mit.edu/ans7870/global/05_Prog_Eval_Report_Final.pdf (hereinafter

“2006 Program Evaluation Findings Report) (“MIT OpenCourseWare (OCW) is a large-scale,

web-based electronic publishing initiative, accessible on the Internet at ocw.mit.edu. Through

OCW, MIT makes its core teaching materials—lecture notes, problem sets, syllabi, reading lists,

simulations, etc.—openly available for non-commercial educational purposes. OCW publishes

those materials in standards-based formats for anyone with access to the Internet.”).

-11-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 12 of 32

world’s most difficult challenges, including sustainable development, climate change, and cancer eradication.”10

43. OCW’s online content is not limited to students. In fact, according to MIT, the majority of OCW’s audience is not students.11

44. As early as 2005, OCW’s impact was clear: as of that date, “[i]ndividual

educators and learners report high levels of current impact on their learning goals, and

expectations for even higher impact in the future; institutions worldwide are both using MIT

OpenCourseWare materials and publishing their own materials openly—with more than 2,000 courses representing over 50 institutions currently available online.”12

45. website.13

As of March 2014, there had been more than 150 million visits to the OCW

46. MIT OCW makes its content available on its own website, www.ocw.mit.edu, and

also has a YouTube channel, further described below, that posts content.

47. The courses available on OCW’s website include video lectures and other

materials, such as written course materials. Many of the video lectures are uncaptioned. For

example, no captions exist for several of the 26 lectures in the course the “Theory of City

10
2015).

MIT, About OpenCourseWare, http://ocw.mit.edu/about/ (accessed February 3,

11 MIT, Open CourseWare Site Statistics, http://ocw.mit.edu/about/site-statistics/ (accessed February 3, 2015).

12 2006 Program Evaluation Findings Report, at 1.

13 MIT, Site Statistics: Monthly Report for March 2014, http://ocw.mit.edu/about/site-statistics/monthly-reports/MITOCW_DB_2014_03.pdf (accessed February 3, 2015).

-12-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 13 of 32
Form”;14 several of the 25 lectures in the course “Mathematics for Computer Science”;15 or any
of the three lectures posted in a course titled “Documenting Science Through Video and New
Media”.16 Similarly, audio-only tracks entirely lack transcription for the 21 available lectures in
a course on “Creating Video Games.”17
48. On its OCW website, MIT makes available versions of its OCW courses
translated into foreign languages; the translated versions average an additional 500,000 visits per
month.18 To provide these translations, MIT “has formally partnered with seven organizations
14 See, e.g., MIT, Theory of City Form - Lecture 2, http://ocw.mit.edu/courses/architecture/4-241j-theory-of-city-form-spring-2013/videolectures/lec-2-normative-theory-i-the-city-as-supernatural/ (accessed February 6, 2015); MIT, Theory of City Form – Lecture 3, http://ocw.mit.edu/courses/architecture/4-241j-theory-of-cityform-spring-2013/video-lectures/lec-3-normative-theory-ii-the-city-as-machine/ (accessed February 6, 2015); MIT, Theory of City Form – Lecture 8, http://ocw.mit.edu/courses/architecture/4-241j-theory-of-city-form-spring-2013/videolectures/lec-8-transformations-i-london/ (accessed February 6, 2015).
15 See, e.g., MIT, Mathematics for Computer Science – Lecture 2, http://ocw.mit.edu/courses/electrical-engineering-and-computer-science/6-042j-mathematics-forcomputer-science-fall-2010/video-lectures/lecture-2-induction/ (accessed February 9, 2015); MIT, Mathematics for Computer Science – Lecture 7, http://ocw.mit.edu/courses/electricalengineering-and-computer-science/6-042j-mathematics-for-computer-science-fall-2010/videolectures/lecture-7-matching-problems/ (accessed February 9, 2015); MIT, Mathematics for Computer Science – Lecture 17, http://ocw.mit.edu/courses/electrical-engineering-and-computerscience/6-042j-mathematics-for-computer-science-fall-2010/video-lectures/lecture-17-countingrules-ii/ (accessed February 9, 2015).
16 MIT, Documenting Science Through Video and New Media, http://ocw.mit.edu/courses/anthropology/21a-550j-dv-lab-documenting-science-through-videoand-new-media-fall-2012/lecture-and-lab-videos/ (accessed February 6, 2015).
17 MIT, Creating Video Games – Audio Lectures, http://ocw.mit.edu/courses/comparative-media-studies-writing/cms-611j-creating-video-gamesfall-2013/audio-lectures/ (accessed February 6, 2015).
18 MIT, Translated Courses, http://ocw.mit.edu/courses/translated-courses/ (accessed February 3, 2015); Open CourseWare Site Statistics, http://ocw.mit.edu/about/site-statistics/ (accessed February 3, 2015).
-13-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 14 of 32
that are translating OCW course materials into Spanish, Portuguese, Simplified Chinese, Traditional Chinese, Thai, Persian, Turkish, and Korean.”19 However, few closed captioned OCW courses are available and no American Sign Language translations of any OCW materials are available.
49. MIT OCW also operates “Highlights for High School,” which is posted on its OCW website and “features MIT OpenCourseWare materials that are most useful for high school students and teachers.”20 The teacher audience is intended for high school teachers, parents with homeschooled children, high school administrators, and “[a]nybody interested in high school education.”21 Uncaptioned videos are part of this program, for example, uncaptioned videos on an introduction to cognitive neuroscience.22
B. MIT Video 50. MIT states that “[t]he MIT Video website — developed and maintained by the MIT News Office — aggregates and curates video produced by the Institute’s offices, laboratories, centers and administration. This includes feature and editorial videos, event

19 MIT, Translated Courses, http://ocw.mit.edu/courses/translated-courses/ (accessed February 3, 2015).

20 MIT, Highlights for High School, http://ocw.mit.edu/high-school/ (accessed February 3, 2015).

21 MIT, Highlights for High School – For Teachers, http://ocw.mit.edu/highschool/more/for-teachers/ (accessed February 3, 2015).

22

MIT, Introduction to Cognitive Neuroscience – Video Lectures,

http://ocw.mit.edu/high-school/biology/introduction-to-cognitive-neuroscience/video-lectures/

(accessed February 6, 2015).

-14-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 15 of 32

recordings, academic content and more.”23 The website has more than 150 channels and more than 12,000 videos.24
51. MIT Video has many uncaptioned videos, including the following examples: a 2013 discussion presented by the MIT Center for International Studies in which MIT professor Noam Chomsky and civil rights lawyer Chase Madar discuss the leaks attributable to Chelsea (formerly Bradley) Manning; various talks focusing on the Arab World from a recent conference hosted by the Center for International Studies called the Starr Forum; a talk aimed at women scientists titled “How to Communicate to Establish Credibility and Authority Part 1”; a discussion with artist Olafur Eliasson; and a 2013 talk by a MIT graduate and budding brain researcher on “Participating in MOOCs.”25
52. Of the few MIT Video items that have captions, some of the captioning is unintelligible. For example, a video of MIT professor and novelist Junot Diaz discussing his 2012 MacArthur Fellowship has only inaccurate, unintelligible captioning, as does a SXSW (South by Southwest) panel that included members of MIT’s Computer Science and Artificial

23 MIT, About MIT Video, http://video.mit.edu/about/ (accessed February 6, 2015).

24

Id.

25 MIT, Book Talk – Chase Mador [sic] & Noam Chomsky, http://video.mit.edu/watch/book-talk-chase-mador-a-noam-chomsky-26036/ (accessed February 4, 2015); MIT, STARR Forum – Arab Spring and its Impact on the Israeli-Palestinian Conflict, http://video.mit.edu/watch/starr-forum-arab-spring-and-its-impact-on-the-israeli-palestinianconflict-11113/ (accessed February 6, 2015); MIT, Center for International Studies Starr Forum – Libya: War and its Aftermath, http://video.mit.edu/watch/center-for-international-studies-starrforum-libya-war-and-its-aftermath-10403/ (accessed February 6, 2015); MIT, How to Communicate to Establish Credibility and Authority Part 1, http://video.mit.edu/watch/how-tocommunicate-to-establish-credibility-and-authority-part-1-25149/ (accessed February 6, 2015); MIT, Olafur Eliasson at MIT: The Art and Science of Solar Lights, http://video.mit.edu/watch/olafur-eliasson-at-mit-the-art-and-science-of-solar-lights-27704/ (accessed February 6, 2015); MIT, Participating in MOOCs, http://video.mit.edu/watch/participating-in-moocs-25044/ (accessed February 6, 2015).

-15-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 16 of 32
Intelligence Laboratory (“CSAIL”).26 Such unintelligible captioning fails to provide equal
access or effective communication for individuals who are deaf and hard of hearing.
C. MIT on YouTube
53. MIT makes online content available through a number of channels on YouTube.
For example, the MIT News channel has, as of February 2015, more than 56,970 subscribers and
more than 18 million views; the MIT OCW channel has more than 661,000 subscribers and more
than 60 million views; MIT’s CSAIL’s channel has more than 15,400 subscribers and more than
2 million views; and MITK12 Videos, a channel “[s]erved up fresh from MIT’s Office of Digital
Learning” that features STEM videos for K-12 students made by MIT students, has more than 21,400 subscribers and more than 2.8 million views.27 These numbers, and MIT’s reach to a
global audience, are growing daily.
54. Deaf and hard of hearing persons, however, are denied the benefit of many of
these videos. For example, MIT has posted on YouTube a highlight video of a 2009 visit by President Obama to campus that contains unintelligible captioning;28 numerous lecture videos
26 MIT, Fiction Writer Junot Díaz: 2012 MacArthur Fellow, http://video.mit.edu/watch/fiction-writer-junot-diaz-2012-macarthur-fellowmacarthurfoundation-12723/ (accessed February 6, 2015); MIT, CSAIL at SXSW: Computing the Future, http://video.mit.edu/watch/csail-at-sxsw-computing-the-future-27590/ (accessed February 6, 2015).
27 MIT News Office YouTube Channel - About, https://www.youtube.com/user/MITNewsOffice/about (accessed February 6, 2015); MIT OpenCourseWare YouTube Channel – About, https://www.youtube.com/user/MIT (accessed February 6, 2015); MIT CSAIL YouTube Channel – About, https://www.youtube.com/user/MITCSAIL/about (accessed February 6, 2015); MITK12Videos YouTube Channel - About, https://www.youtube.com/user/MITK12Videos/about (accessed February 6, 2015).
28 MIT, President Obama at MIT (Jan. 31, 2012), https://www.youtube.com/watch?v=rnIlVOAspb8 (accessed February 6, 2015).
-16-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 17 of 32
that lack captioning entirely;29 and other content that is inaccurately captioned, such as a clip
about microthruster-propelled satellites that has over 45,000 views and a lecture on Lean Six
Sigma Methods that has nearly 150,000 views.30
D. MIT on iTunes U
55. MIT offers a variety of content on iTunes U, much of which is entirely
uncaptioned, such as videos from a collection of 41 STEM Concept Videos “designed to help
students learn a pivotal concept in science or engineering” such as entropy or torque, and a series
of 12 videos instructing on how to launch a successful startup titled “New Enterprises.”
E. MIT Museum
56. The MIT Museum posts videos and audio tracks of lectures and talks, including
videos of its lunchtime series Lunch with Laureates and Luminaries, which features MIT
professors and students discussing their research;31 videos of its Soap Box series, a series of
29 See, e.g., MIT OCW, Mind vs. Brain: Confessions of a Defector (Mar. 4, 2014), https://www.youtube.com/watch?v=6Px0livk6m8 (accessed February 6, 2015); MIT OCW, Writing Workshop (Jan. 30, 2014), https://www.youtube.com/watch?v=G7p3lFMmDiQ (accessed February 6, 2015); MIT OCW, 1. Finance Growth, and Volatility (Mar. 6, 2014), https://www.youtube.com/watch?v=0hA7nbRzOy0 (accessed February 6, 2015); MIT OCW, 7. Capital Asset Pricing (Mar. 6, 2014), https://www.youtube.com/watch?v=h6Ok8CNVOaE (accessed February 6, 2015); MIT OCW, 5. Dynamic Optimality I (Dec. 18, 2013), https://www.youtube.com/watch?v=DZ7jt1F8KKw (accessed February 6, 2015); MIT OCW, 11. Integer Models (Dec. 18, 2013), https://www.youtube.com/watch?v=u-HHY1ylhHY (accessed February 6, 2015).
30 MIT, Microthrusters propel small satellites at MIT (Aug. 16, 2012), https://www.youtube.com/watch?v=BHVkc2JwAuI (accessed February 6, 2015); MIT OCW, Ses 1-2 | MIT 16.660 Introduction to Lean Six Sigma Methods, January (IAP) 2008 (July 6, 2009), https://www.youtube.com/watch?v=PQspf3q12mo (accessed February 6, 2015).
31 MIT Museum, Lunch with Laureates and Luminaries (Series Archive), http://web.mit.edu/museum/multimedia/luncharchive.html (accessed February 6, 2015). See, e.g., MIT Museum, Lunch with a Luminary: Peter Diamond, http://web.mit.edu/museum/multimedia/csf11-lunch-diamond.html (accessed February 6, 2015) (uncaptioned video).
-17-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 18 of 32
salon-style talks with MIT scientists;32 and videos of other MIT Museum programs.33 These include videos that are entirely uncaptioned as well as videos that are inaccurately and unintelligibly captioned.
F. MIT TechTV 57. MIT states that “MIT Tech TV is the video-sharing site for the MIT community. It supports the community through the aggregation and distribution of science, engineering, technology, and a lot more MIT-related video on the web.”34 “The ability to upload videos is limited to people with an mit.edu e-mail address (MIT students, faculty, staff, alumni, etc.), but anyone will be able to watch videos posted to MIT TechTV.”35 “Content uploaded to MIT TechTV [is] moderated by a combination of individual MIT TechTV moderators and the members of the MIT TechTV website in accordance with the Terms of Use and Principles and Mission. Content that does not adhere to this website's Terms of Use and/or Principles and Mission will be rejected or removed from the website.”36

32 MIT Museum, Soap Box Archives, http://web.mit.edu/museum/programs/soapboxarchives.html (accessed February 6, 2015). See, e.g.,MIT Museum, Soap Box: How Does Stress Drive PTSD?, http://techtv.mit.edu/collections/mitmuseum/videos/27021-soap-box-how-does-stress-drive-ptsd (accessed February 6, 2015) (uncaptioned video).

33

See, e.g., Life in the Universe (Series Archive),

http://web.mit.edu/museum/multimedia/arewealone.html (accessed February 6, 2015); MIT

Museum, Life in the Universe: Are We Alone?, http://techtv.mit.edu/videos/14977-life-in-the-

universe-are-we-alone (accessed February 6, 2015) (uncaptioned video)

34 MIT Tech TV, About MIT Tech TV, http://techtv.mit.edu/about (accessed February 6, 2015).

35 MIT Tech TV, Terms of Use, http://techtv.mit.edu/terms-of-use/ (accessed February 6, 2015).

36

Id.

-18-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 19 of 32
58. MIT Tech TV includes videos that are entirely uncaptioned, including for
example two talks on the “Life Cycle of Stars” selected to be video-recorded as part of an ongoing MIT Libraries and MIT Academic Media Production Services project,37 and multiple videos from an annual workshop on “The Social Brain.”38
G. edX / MITx
59. Together with Harvard University in 2012, MIT founded the edX learning
platform. “Through edX, the two institutions [have] collaborate[d] to enhance campus-based teaching and learning and build a global community of online learners.”39
60. MIT publishes its edX courses on an edX platform titled MITx. MIT states that “[t]hrough MITx, the Institute furthers its commitment to improving education worldwide.”40
37 MIT Kavli Institute, Outreach Efforts, http://space.mit.edu/outreach/outreachefforts (accessed February 6, 2015) (see “Outreach” tab); MIT, The Life Cycle of Stars – Session 1 (Jan. 31, 2013), http://techtv.mit.edu/videos/bdacfb08b2ef57d6585276973c06fccbab263a8c/private (accessed February 6, 2015); MIT, The Life Cycle of Stars – Session 2 (Jan. 31, 2013), http://techtv.mit.edu/videos/f67cae6198c9d360032600d9f7b3965828c4ffe5/private (accessed February 6, 2015).
38 See, e.g., Simons Center for the Social Brain, Simons Center Annual Workshop 2014: Dr. Elizabeth Norton, MIT, http://techtv.mit.edu/videos/29727-simons-center-annualworkshop-2014-dr-elizabeth-norton-mit (accessed February 6, 2015); Simons Center for the Social Brain, Simons Center Annual Workshop 2014: Dr. Isaac S. Kohane, http://techtv.mit.edu/videos/29724-simons-center-workshop-2014-dr-isaac-s-kohane (accessed February 6, 2015); Simons Center for the Social Brain, Simons Center Annual Workshop 2014: Workshop Open Discussion, http://techtv.mit.edu/videos/29728-simons-center-annualworkshop-2014-workshop-open-discussion (accessed February 6, 2015).
39 MIT News, MIT and Harvard announce edX (May 2, 2012), http://newsoffice.mit.edu/2012/mit-harvard-edx-announcement-050212 (accessed February 6, 2015).
40 edX, About MITx, https://www.edx.org/school/mitx/allcourses (accessed February 6, 2015).
-19-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 20 of 32

On MITx, MIT offers a variety of courses as well as “Xseries programs, related sequences of MITx courses within a specific domain.”41
61. MITx’s offerings include general interest courses, such as computer programming courses for those with no experience, a course on entrepreneurship, and a course on architecture.
62. All MITx courses are free to all, with options for auditing or earning a “certificate” after completing the course. Some courses, including the MIT Xseries courses, have the additional option to pay a fee to earn a verified certificate of achievement.
63. Upon information and belief, MITx includes courses that are uncaptioned or contain inaccurate captioning. II. Harm to the Plaintiffs.
64. NAD has standing to sue as an association on behalf of its members. NAD members, including Mr. and Mrs. Nettles, would have standing to sue as individuals because they have been, and continue to be, harmed by Defendant’s discriminatory actions, as set forth herein. Moreover, as set forth above, advocating on behalf of its members on this issue is germane to the NAD’s interests of ensuring that important tools of daily life, such as websites and online educational courses, are accessible to people who are deaf or hard of hearing.
65. Because NAD seeks only declaratory and injunctive relief, individual participation by NAD members is not required.
66. Plaintiff C. Wayne Dore, motivated both by his personal interests and in his role as a tester in this case, has attempted to use Defendant MIT’s website(s). Because of MIT’s failure to provide accurate captioning, he was unable to understand, and thus denied the benefit of, many of the videos he tried to watch.

41

Id.

-20-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 21 of 32
67. Mr. Dore has tried to access the following platforms of Defendant MIT, but found uncaptioned or erroneously captioned content on each of them: MIT OCW, MIT Video, and MIT on iTunes U.
68. In the future, Mr. Dore would like to, and intends to, attempt to access Defendant MIT’s online content.
69. Plaintiff Christy Smith, motivated both by her personal interests and in her role as a tester in this case, has attempted to use Defendant MIT’s website(s). Because of MIT’s failure to provide accurate captioning, she was unable to understand, and thus denied the benefit of, many of the videos she tried to watch.
70. Ms. Smith has tried to access the following platforms of Defendant MIT, but found uncaptioned or erroneously captioned content on each of them: MIT OpenCourseWare, MIT Video, MIT content on YouTube, MIT on ITunes U, MIT Museum’s online content, and online content posted on MIT TechTV by faculty or staff on topics of general interest.
71. In the future, Ms. Smith would like to, and intends to, attempt to access Defendant MIT’s online content.
72. Plaintiff Lee Nettles, motivated both by his personal interests and in his role as a tester in this case, has attempted to use Defendant MIT’s website(s). Because of MIT’s failure to provide accurate captioning, he was unable to understand, and thus denied the benefit of, many of the videos he tried to watch.
73. Mr. Nettles has tried to access the following platforms of Defendant MIT, but found uncaptioned or erroneously captioned content on each of them: MIT on YouTube and MIT on iTunes U.
-21-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 22 of 32
74. In the future, Mr. Nettles would like to, and intends to, attempt to access Defendant MIT’s online content.
75. Plaintiff Diane Nettles, motivated both by her personal interests and in her role as a tester in this case, has attempted to use Defendant MIT’s website(s). Because of MIT’s failure to provide accurate captioning, she was unable to understand, and thus denied the benefit of, many of the videos she tried to watch.
76. Ms. Nettles has tried to access the following platforms of Defendant MIT, but found uncaptioned or erroneously captioned content on each of them: MIT on YouTube and MIT on iTunes U.
77. In the future, Ms. Nettles would like to, and intends to, attempt to access Defendant MIT’s online content.
78. All Plaintiffs have been, and in the absence of an injunction will continue to be, injured by MIT’s failure to provide timely, accurate captioning of its publicly available online content. III. Prior Notice to MIT
79. MIT has long known that captioning is necessary to make its online content accessible to deaf and hard of hearing persons, and that it was legally responsible to provide such captioning.
80. For example, in 2010, MIT, through its News Office, recognized that “[c]losed captions make videos accessible to those who are deaf or hard of hearing . . . .”42
42 Robyn Fizz, With Move to Kaltura, MIT TechTV now supports closed captions, MIT News (Dec. 2, 2010), http://newsoffice.mit.edu/2010/techtv-captions (accessed February 6, 2015).
-22-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 23 of 32

81. That same year, the United States Department of Education Office of Civil Rights and the United States Department of Justice Civil Rights Division issued a joint “Dear Colleague Letter” (“DCL”) to university colleges and presidents, making clear that “the general requirements of Section 504 and the ADA reach equipment and technological devices when they are used by . . . places of public accommodation as part of their programs, services, activities, goods, advantages, privileges, or accommodations.”43 (The Department of Education and the Department of Justice are the two federal agencies with Section 504 and ADA enforcement responsibilities.)
82. In 2011, the Department of Education issued a “FAQ” document discussing the DCL, and explaining that it reflected “long-standing law,” “key principles of Federal disability discrimination law,” and “long-standing requirements.”44
83. The Department of Education also made clear that the DCL applies to all forms of emerging technology and that “all school programs or activities—whether in a ‘brick and mortar [classroom],’ online, or other ‘virtual’ context—must be operated in a manner that complies with Federal disability discrimination laws.”45
84. MIT’s current website emphasizes how crucial captioning is to allow deaf and hard of hearing persons access to online content: “Users with hearing impairments can use the web if provided captions for multimedia content (any video content that also has audio) and

43 U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter (June 29, 2010), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html.

44 U.S. Dep’t of Educ., Frequently Asked Questions About the June 29, 2010, Dear Colleague Letter, at 1 (May 26, 2011), http://www2.ed.gov/about/offices/list/ocr/docs/dclebook-faq-201105.pdf.

45

Id. at 4.

-23-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 24 of 32
transcripts for audio-only content. Without captions or transcripts, only the visual content is accessible.”46
85. Beginning in March 2014, the NAD repeatedly approached MIT to request that MIT ensure that its online content has timely, accurate captioning.
86. Despite MIT’s knowledge that captioning is crucial to provide deaf and hard of hearing persons access to its online content, and despite its knowledge that regulatory agencies believe that captioning is required by law, and despite NAD’s request on behalf of its members that MIT make its online content accessible, only a fraction of MIT’s online content has accurate captioning.
CLASS ACTION ALLEGATIONS 87. Plaintiffs Dore, Smith, Lee Nettles, and Diane Nettles (the “Representative Plaintiffs”) bring this action on behalf of themselves and on behalf of a class defined as follows: individuals who are deaf or hard of hearing who have been, or in the future will be, denied the full and equal enjoyment of online content for the general public produced or created by MIT, and/or made available to the general public by MIT on MIT Platforms, because that content is not accurately captioned. 88. Joinder of all members of the proposed class would be impracticable because, without limitation, the class consists of numerous individuals who are geographically diverse, these individuals are very difficult to identify, and they are unlikely to be able to bring individual suits. 89. There are numerous common questions of law and fact, including but not limited to:
46 MIT, Web Accessibility Guidelines, http://ux.mit.edu/accessibility/guidelines (accessed February 6, 2015) (emphasis in original).
-24-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 25 of 32
a. Whether provision of online content constitutes a service, facility, privilege or advantage of MIT;
b. Whether provision of online content constitutes a program or activity of MIT; c. Whether Section 504 and/or Title III require MIT to caption its online content so
that deaf and hard of hearing individuals are not denied the benefits of its services, facilities, privileges, advantages, programs and/or activities; d. Whether Section 504 and/or Title III require MIT to caption its online content so that deaf and hard of hearing individuals are not provided with benefits that are unequal to those provided to nondisabled persons; e. Whether captioning constitutes an auxiliary aid or service under Section 504 and/or Title III; f. Whether Section 504 and/or Title III require MIT to caption its online content to ensure that deaf and hard of hearing individuals are provided with effective communication; g. Whether MIT has policies or practices that result in uncaptioned or inaccurately captioned online content; h. Whether MIT fails to have in place policies or practices to ensure that online content is accurately captioned; i. Whether MIT has failed to make reasonable modifications in policies, procedures, and practices that are necessary to provide persons with hearing disabilities meaningful, effective access to its online content.
-25-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 26 of 32
90. The claims of the Representative Plaintiffs are typical of the claims of the class because they arise from the same course of conduct engaged in by Defendant MIT, are based on the same alleged violations of the same statutes and regulations, and seek the same relief.
91. The Representative Plaintiffs will fairly and adequately represent the interests of the class. The Representative Plaintiffs have no interests adverse to the interests of other members of the class. Further, the attorneys they have retained include counsel who have been appointed as class counsel in, and have successfully litigated, numerous disability rights class actions across the country.
92. Finally, certification under Rule 23(b)(2) is proper here because Defendant MIT has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or declaratory relief with respect to the class as a whole.
FIRST CLAIM FOR RELIEF Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. 93. Plaintiffs incorporate by reference each and every allegation herein. 94. Section 504 of the Rehabilitation Act of 1973 provides in pertinent part: “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). 95. Defendant MIT is a recipient of federal financial assistance sufficient to invoke the coverage of Section 504, and has received such federal financial assistance at all times relevant to the claims asserted in this Complaint. 96. The Rehabilitation Act defines “program or activity” to “mean[] all of the operations of . . . a college, university, or other postsecondary institution.” 29 U.S.C. § 794(b)(2)(A); 34 C.F.R. § 104.3(k). Defendant MIT is a “college, university, or other
-26-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 27 of 32

postsecondary institution.” 29 U.S.C. § 794(b)(2)(A); 34 C.F.R. § 104.3(k). Defendant MIT’s

publicly available online content is therefore a “program or activity” of Defendant MIT within

the meaning of the Rehabilitation Act.

97. Defendant MIT has engaged in illegal disability discrimination, as defined by the

Rehabilitation Act, including without limitation:

•

directly or through contractual, licensing or other arrangements, denying

opportunities for deaf and hard of hearing people to participate in or benefit from its aids,

benefits, or services;

•

directly or through contractual, licensing or other arrangements, affording deaf

and hard of hearing people opportunities to participate or benefit from its aids, benefits and

service that are not equal to, or effective as, those afforded others;

•

directly or through contractual, licensing or other arrangements, limiting deaf or

hard of hearing people in the enjoyment of rights, privileges, advantages, and/or opportunities

enjoyed by others receiving Defendant’s aids, benefits, or services;

•

utilizing methods of administration (i) that have the effect of subjecting deaf or

hard of hearing people to discrimination on the basis of handicap, and (ii) that have the purpose

or effect of defeating or substantially impairing accomplishment of the objectives of Defendant’s

programs and activities with respect to deaf and hard of hearing people;

•

failing to provide an auxiliary aid or service where necessary to ensure that deaf

or hard of hearing people are not denied effective communication and are not excluded, denied

services or otherwise treated differently than others; and/or

-27-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 28 of 32

•

failing to make reasonable modifications in policies, practices or procedures

where necessary to afford its services, privileges, advantages or accommodations to deaf or hard

of hearing persons.

98. Defendant MIT has violated the Rehabilitation Act by, without limitation, failing

to provide accurate captioning for its online content, thereby denying deaf and hard of hearing

persons the benefits of that online content, providing them with a benefit that is not equal to that

provided others, and denying them effective communication.

99. Defendant MIT has further violated the Rehabilitation Act by, without limitation,

utilizing administrative methods, practices and policies that allow its online content to be made

available without accurate captioning.

100. Defendant MIT’s ongoing and continuing violations of Section 504 have caused,

and in the absence of an injunction will continue to cause, harm to the plaintiffs and the class.

SECOND CLAIM FOR RELIEF Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq.

101. Plaintiffs incorporate by reference each and every allegation herein.

102. Title III requires that “[n]o individual shall be discriminated against on the basis

of disability in the full and equal enjoyment of the goods, services, facilities, privileges,

advantages, or accommodations of any place of public accommodation by any person who owns

. . . or operates a place of public accommodation.” 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).

103. Defendant MIT operates an “undergraduate, or postgraduate private school, or

other place of education,” which is a place of public accommodation pursuant to 42 U.S.C.

§ 12181(7)(J).

104. Defendant MIT has engaged in illegal disability discrimination, as defined by

Title III, including without limitation:

-28-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 29 of 32

•

directly, or through contractual, licensing, or other arrangements denying

opportunities for deaf and hard of hearing people to participate in and benefit from its aids,

benefits, and services;

•

directly, or through contractual, licensing, or other arrangements affording deaf

and hard of hearing people opportunities to participate in and benefit from its aids, benefits, and

services that are not equal to, or effective as, that afforded others;

•

utilizing methods of administration (i) that have the effect of discriminating on the

basis of disability; or (ii) that perpetuate the discrimination of others who are subject to common

administrative control;

•

failing to provide auxiliary aids and services where necessary to ensure that deaf

or hard of hearing people are not denied effective communication and are not excluded, denied

services or otherwise treated differently than others; and/or

•

failing to make reasonable modifications in policies, practices or procedures

where necessary to afford its services, privileges, advantages or accommodations to deaf or hard

of hearing people.

105. Defendant MIT has violated Title III by, without limitation, failing to provide

accurate captioning for its online content, thereby denying deaf and hard of hearing persons the

benefits of that online content, providing them with a benefit that is not equal to that provided

others, and denying them effective communication.

106. Defendant MIT has further violated Title III by, without limitation, utilizing

administrative methods, practices and policies that allow its online content to be made available

without accurate captioning.

-29-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 30 of 32

107. Defendant MIT’s ongoing and continuing violations of Title III have caused, and in the absence of an injunction will continue to cause, harm to the plaintiffs and the class.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request judgment as follows:

1.

A declaration that Defendant MIT’s conduct as alleged here has violated, and

continues to violate, Section 504 of the Rehabilitation Act of 1973, Title III of

the Americans with Disabilities Act of 1990, and the regulations promulgated

under those statutes;

2.

Issuance of a permanent injunction requiring Defendant MIT to provide timely,

effective communication through comprehensive and accurate captioning of the

online content that it creates and/or produces, as well as the online content that it

makes available on MIT Platforms, and to ensure that such violations do not

occur in the future, as well as providing for appropriate interim injunctive relief;

3.

Award of Plaintiffs’ reasonable attorneys’ fees and costs, as provided by law; and

4.

Such other relief as the Court finds just and proper.

Respectfully Submitted,
NATIONAL ASSOCIATION OF THE DEAF, C. WAYNE DORE, CHRISTY SMITH, LEE NETTLES, and DIANE NETTLES
By their Attorneys,
/s/ Thomas P. Murphy Thomas P. Murphy, Esq., Board of Bar Overseers no. 630527 DISABILITY LAW CENTER, INC. 32 Industrial Drive East Northampton, Massachusetts, 01060
-30-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 31 of 32
(413) 584-6337 / (800) 222-5619 Voice tmurphy@dlc-ma.org
Christine M. Griffin, Esq., Board of Bar Overseers no. 564420 Stanley J. Eichner, Esq., Board of Bar Overseers no. 543139 Richard M. Glassman, Esq., Board of Bar Overseers no. 544381 DISABILITY LAW CENTER, INC. 11 Beacon Street, Suite 925 Boston, MA 02108 (617) 723-8455 / (800) 872-9992 Voice cgriffin@dlc-ma.org seichner@dlc-ma.org rglassman@dlc-ma.org
Timothy P. Fox* Sarah M. Morris* CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 104 Broadway, Suite 400 Denver, CO 80203 Telephone: (303) 757-7901 tfox@creeclaw.org smorris@creeclaw.org
Bill Lann Lee* Julie Wilensky* LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 476 9th Street Oakland, CA 94607-4048 Telephone: (510) 839-6824 blee@lewisfeinberg.com jwilensky@lewisfeinberg.com
Arlene B. Mayerson, Esq.* Namita Gupta, Esq.* DISABILITY RIGHTS EDUCATION AND DEFENSE FUND 3075 Adeline Street, Suite 210 Berkeley, CA 94703 Telephone: (510) 644-2555 amayerson@dredf.org ngupta@dredf.org
Caroline E. Jackson, Esq.* Marc P. Charmatz, Esq.* THE NATIONAL ASSOCIATION OF THE DEAF LAW AND ADVOCACY CENTER
-31-

Case 3:15-cv-30024-MGM Document 1 Filed 02/12/15 Page 32 of 32 8630 Fenton Street, Suite 820 Silver Spring, MD 20910 Telephone: (301) 587-1788 TTY: (301) 587-1789 caroline.jackson@nad.org marc.charmatz@nad.org Attorneys for Plaintiffs and Proposed Plaintiff Class Dated: February 12, 2015 * Application for admission pro hac vice forthcoming
-32-

 </s> Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 1 of 28
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

NATIONAL ASSOCIATION OF THE )

DEAF, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

MASSACHUSETTS INSTITUTE OF

)

TECHNLOGY,

)

)

Defendants.

)

_____________________________________

Civil Action No. 3:15-cv-300024-MGM
Leave to File Memorandum in Excess of 20 Pages Granted on June 23, 2015

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 2 of 28
I. INTRODUCTION Plaintiffs, individuals who are deaf or hard of hearing and the National Association of the Deaf (“NAD”), allege that the Massachusetts Institute of Technology (“MIT”) has violated title III of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) by denying individuals who are deaf or hard of hearing equal access to MIT’s thousands of free online videos and audio files (“online programming”), which includes courses, educational lectures, and topics of general interest. (Complaint at ¶¶ 1, 2, 47). Like most colleges and universities, MIT relies on websites and other Internet related technologies in the administration of its services to students and, increasingly, to members of the public. Indeed, MIT characterizes its online educational services as “open and available to the world.”1 Plaintiffs claim that despite requests that MIT provide closed captions on its online programming, MIT has failed to make its content accessible and has impermissibly denied Plaintiffs and other individuals with hearing disabilities equal access to these valuable educational opportunities. (Complaint at ¶ 8). MIT has moved to stay or dismiss the case on jurisdictional grounds or, alternatively, to dismiss Plaintiffs’ Complaint for the failure to state a claim. MIT first argues that pursuant to the primary jurisdiction doctrine the action should be stayed or dismissed until the Department of Justice issues regulations under the ADA on website accessibility. Alternatively, should this Court retain jurisdiction, MIT argues that neither the ADA nor Section 504 require the provision of captions on its online programming.
1 See Complaint at ¶ 2; MIT’s “About MIT OpenCourseWare,” http://ocw.mit.edu/about/index.htm (last visited June 25, 2015).
1

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 3 of 28
MIT is wrong on both counts. The primary jurisdiction doctrine does not support dismissal or stay of this matter, and Plaintiffs’ claim falls squarely within the protections afforded by the ADA and Section 504. Both the ADA and Section 504 currently obligate MIT to provide effective communication to ensure equal access to its online programming services, and resolution of Plaintiffs’ claim involves a straightforward application of longstanding statutory and regulatory requirements. For more than two decades, federal courts have resolved effective communication claims brought under the ADA and Section 504 in a wide range of contexts, including claims alleging unequal access to goods, benefits and services provided through websites or other electronic media. And the Departments of Justice and Education have routinely required covered entities to ensure equal access to goods, benefits and services, electronic or otherwise, through the provision of captioning or other auxiliary aids or services. Against this backdrop, the fact that DOJ has announced its intention to issue, at some point in the future, more specific technical requirements related to website accessibility does not support invoking primary jurisdiction. As to MIT’s Rule 12(b)(6) assertions, Plaintiffs’ Complaint alleges sufficient facts to plead violations of the ADA and Section 504. Further, MIT’s heightened rhetoric that Plaintiffs’ desired remedy is impermissibly broad and unduly burdensome amounts to an assertion of fact-based defenses that MIT cannot rely on at this stage in the litigation.
Because MIT’s Motion to Dismiss directly implicates the United States’ rulemaking agenda and the interpretation and application of regulations already promulgated by the Department of Justice under title III of the ADA and by the Department of Education under
2

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 4 of 28
Section 504, the United States has a substantial interest in this matter.2 Accordingly, the United
States respectfully submits this Statement of Interest to correct MIT’s misapplication of the primary jurisdiction doctrine and its misunderstanding of the ADA and Section 504.3
II. STATUTORY AND REGULATORY BACKGROUND
A. Title III of the Americans with Disabilities Act of 1990.
Title III of the ADA prohibits discrimination by public accommodations, prescribing
generally that no individual shall be discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of
any place of public accommodation by any person who owns, leases (or leases to), or operates a
place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a). A public
accommodation includes an “undergraduate, postgraduate private school, or other place of
education,” such as MIT. 42 U.S.C. § 12181(7)(J). Title III prohibits public accommodations
from denying individuals with disabilities the opportunity to participate in or benefit from goods,
services, privileges or advantages or from affording individuals with disabilities an unequal
opportunity to participate and benefit from the goods, services, privileges or advantages afforded
to other individuals. 42 U.S.C. § 12182(b)(1)(A)(i) and (ii); 28 C.F.R. §§ 36.202(a) and (b).
2 Both the Departments of Justice and Education are entitled to deference in their interpretation of the regulations they promulgate – title III regulations of the ADA for Justice and Section 504 regulations for Education. Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 196 (2011) (court must defer to “an agency’s interpretation of its own regulation . . . unless that interpretation is ‘plainly erroneous or inconsistent with the regulation’”) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)); Olmstead v. L.C., 527 U.S. 581, 598 (1999) (“The well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance”) (internal quotation marks omitted); K.M. v. Tustin, 725 F.3d 1088, 1100 (9th Cir. 2013)(“[w]e afford ... considerable respect” to the DOJ's interpretation of the ADA effective communication regulation, as expressed in its amicus brief to this court (quoting M.R. v. Dreyfus, 697 F.3d 706, 735 (9th Cir.2012)). 3 Under 28 U.S.C. § 517, “[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any . . . district in the United States to attend to the interests of the United States in a suit pending in a court of the United States . . . .” The Department of Justice (“Department” or “DOJ”) is the federal agency with primary responsibility for enforcing title III of the ADA and its implementing regulation. 42 U.S.C. § 12188(b).
3

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 5 of 28
Title III imposes specific statutory and regulatory requirements to ensure that persons with disabilities are not excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services. Under these provisions, public accommodations must furnish appropriate auxiliary aids and services where necessary for effective communication, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303. Auxiliary aids and services include qualified interpreters, notetakers, computer-aided transcription services, written materials, open and closed captioning, and accessible electronic and information technology, among other methods. 28 C.F.R. § 36.303(b).
B. The Department’s Rulemaking Under the ADA.
The ADA charges the Attorney General with promulgating regulations to implement title III of the ADA. 42 U.S.C. § 12186. Pursuant to this charge, and following notice and comment rulemaking, DOJ issued its original title III regulation in 1991 and a revised title III regulation in 2010. In that same year, the Department issued an Advanced Notice of Proposed Rulemaking (“ANPRM”) on Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, announcing the Department’s interest in developing more specific requirements or technical standards for website accessibility. 75 Fed. Reg. 43,460 (July 26, 2010). In the ANPRM, the Department reaffirmed its longstanding position that the ADA applies to websites of public accommodations, and reiterated, consistent with the preamble to the 1991 regulations, that the ADA regulations should be interpreted to keep pace with developing
4

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 6 of 28
technologies. Id. at 43,464 (“The Department has also repeatedly affirmed the application of title III to Web sites of public accommodations.”). The Department recognized, however, that in light of inconsistent court decisions on website-related obligations and differing technical standards for determining web accessibility, further guidance was warranted. Id.
Through the ANPRM, the Department sought to explore whether rulemaking would be helpful in providing guidance as to how covered entities could meet preexisting obligations to make their websites accessible and in determining specific requirements or technical standards that could be adopted to provide the disability community consistent access. Id. at 43,464, 43,467. The comment period was open for 180 days after publication in the Federal Register on July 26, 2010. In response to the ANPRM, the Department received approximately 440 public comments. The Department is currently working on separate Notices of Proposed Rulemaking (NPRM) under titles II and III.4 The title II NPRM, applicable to services, programs, and activities of public entities, was scheduled for publication in Spring 2015 but is not yet published. Id. The title III NPRM, applicable to public accommodations such as MIT, is scheduled for publication in Spring 2016. Id. After an NPRM is issued, the Department must solicit public comment and consider those comments in promulgating a final rule.
C. Section 504 of the Rehabilitation Act of 1973. Section 504 provides that “[n]o otherwise qualified individual with a disability… shall,
solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). MIT is a recipient of Federal financial assistance
4 See Office of Information and Regulatory Affairs, Office of Management and Budget, Reginfo.gov, Unified Agenda, Spring 2015 Agency Statements of Regulatory Priorities (Department of Justice), title II, http://go.usa.gov/3XjKe and title III, http://go.usa.gov/3XjkV.
5

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 7 of 28
from the U.S. Department of Education. Section 504 defines “program or activity” to “mean[] all of the operations of … a college, university or other postsecondary institution.” 29 U.S.C. § 794(b)(2)(A); 34 C.F.R. § 104.3(k)(2)(i). Therefore, MIT’s online programming is part of a “program or activity” covered by Section 504. Id.
Under Section 504, recipients of Federal funding are required to provide qualified individuals with disabilities meaningful access to the benefits they offer. See Alexander v. Choate, 469 U.S. 287, 301 (1985). In this context, a qualified individual with a disability is a person with a disability who meets the essential eligibility requirements for participating in MIT’s online programming. 34 C.F.R. § 104.3 (l)(4). MIT offers its online programming to the general public. Thus all members of the general public, including Plaintiffs, are “qualified” to avail themselves of MIT’s service. 34 C.F.R. § 104.3(l)(4).
As a recipient of federal funding, MIT has a duty to provide meaningful access to its online programming to individuals with disabilities.5 This duty requires MIT to ensure that qualified individuals with disabilities are afforded the opportunity to participate in or benefit from an aid, benefit, or service that is equal to that afforded to others. 34 C.F.R. § 104.4(b)(1)(ii). In addition, MIT is prohibited from providing qualified individuals with disabilities with an aid, benefit, or service that is not as effective as that provided to others. 34 C.F.R. § 104.4(b)(1)(iii). MIT must ensure that equally effective aids, benefits, and services afford qualified individuals with disabilities the opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement. 34 C.F.R. § 104.4(b)(2). Section 504 also requires the provision of aids and services that are necessary to ensure individuals with disabilities have an equal opportunity to participate in MIT’s programs or activities.
5 The terms “individuals with disabilities” and “qualified individuals with disabilities” are used interchangeably in this motion.
6

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 8 of 28
III. DISCUSSION A. The Primary Jurisdiction Doctrine Does Not Support a Stay or Dismissal.
Defendant argues that the primary jurisdiction doctrine dictates that this Court should dismiss Plaintiffs’ Complaint or stay the action until DOJ promulgates a final title III rule concerning website accessibility standards. (Motion at 9-10). But application of the doctrine is not warranted in this case, as Plaintiffs’ Complaint alleges violation of existing and longstanding statutory and regulatory requirements to provide effective communication, and courts routinely decide these types of effective communication matters. Primary jurisdiction is further inappropriate given that the scope and timing of any final rule on web accessibility is speculative and far from imminent; although the title III proposed rule, or NPRM, is currently scheduled for a Spring 2016 publication, there is no scheduled date for publication of a final rule.
While there is no fixed formula for applying the primary jurisdiction doctrine, United States v. Western Pacific Railroad Co., 352 U.S. 59, 64 (1956), the central inquiry is whether a court presented with an otherwise jurisdictionally-proper claim should nonetheless deferentially refer the matter to an administrative agency because the agency’s input would provide required specialized expertise or ensure uniformity in a comprehensive regulatory scheme. See, e.g., Am. Auto. Mfrs. Ass'n v. Massachusetts Dept. of Envt'l Prot., 163 F.3d 74, 80-82 (1st Cir. 1998); U.S. Pub. Interest Research Grp. v. Atl. Salmon of Maine, LLC, 339 F.3d 23, 34 (1st Cir. 2003). Primary jurisdiction is not applicable simply because a claim or issue may conceivably fall within an agency’s purview. See, e.g., Brown v. MCI WorldCom Network Services, Inc., 277 F.3d 1166, 1172 (9th Cir. 2002). Rather, courts must also weigh the advantages of invoking primary jurisdiction against the potential harm from judicial forbearance. Am. Auto., 163 F.3d at 81-82. For these reasons, courts caution that primary jurisdiction should be invoked sparingly.
7

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 9 of 28
See, e.g., U.S.P.I.R.G., 339 F.3d at 34; Locust Cartage Co. v. Transamerican Freight Lines, Inc., 430 F.2d 334, 340 n.5 (1st Cir.), cert. denied, 400 U.S. 964 (1970); Palmer Foundry, Inc., v. Delta-Ha, Inc., 319 F.Supp.2d 110, 112 (D. Mass. 2004).
In the First Circuit, courts consider the following factors to determine if primary jurisdiction should be invoked: (1) whether the agency determination lies at the heart of the task assigned the agency; (2) whether agency expertise is required to unravel intricate, technical facts; and (3) while not determinative, whether the agency determination would materially aid the court. See Rymes Heating Oils Inc. v. Springfield Terminal Ry. Co., 358 F.3d 82, 91 (1st Cir. 2004); see also Mass. v. Blackstone Valley Elec. Co., 67 F.3d 981, 992 (1st Cir. 1995). These factors are interrelated, and in this case strongly weigh against a stay or dismissal.
First, contrary to MIT’s assertion, at the heart of this case is a straightforward claim that MIT failed to provide auxiliary aids or services necessary to ensure effective communication and equal access to MIT’s online programming. The determination of Plaintiffs’ claim lies with the Court, not with DOJ, which has no authority to administratively adjudicate the parties’ dispute. Second, resolution of Plaintiffs’ claim does not require the Court to “unravel intricate, technical facts,” but rather involves consideration of facts within the conventional competence of the courts, e.g., whether MIT offers online programming; whether Plaintiffs can access that programming; whether MIT furnished appropriate auxiliary aids or services to afford access to the online programming; and, if asserted, whether MIT can establish a fundamental alteration or undue burden defense. And because the title III rulemaking on website accessibility is not imminent, dismissal or stay of this case on primary jurisdiction grounds would not materially aid this Court and would significantly prejudice Plaintiffs and similarly situated persons with disabilities.
8

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 10 of 28
1. Primary Jurisdiction is Not Appropriate Because This Court is WellEquipped to Apply the Current Law to Plaintiffs’ Claim.
The primary issue before this Court – whether MIT is required to provide auxiliary aids
and services, such as captions, to its online programming to ensure equal access to individuals with disabilities – directly implicates the existing statutory requirements of title III and its
longstanding regulation, which courts are well-placed to resolve. As set forth above, the ADA
and the title III regulation, since their enactment and promulgation, have always required that
public accommodations provide effective communication to persons with disabilities through the
provision of auxiliary aids and services, including, where appropriate, closed captioning. 42
U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303. See, e.g., Arizona ex rel. Goddard v. Harkins
Amusement Enters., 603 F.3d 666, 675 (9th Cir. 2010) (reversing district court finding that
closed captioning and descriptive narration are not required), Feldman v. Pro Football, Inc., 419
Fed. Appx. 381, 391-92 (4th Cir. 2011) (affirming district court decision requiring a football
stadium to provide auxiliary aids such as captions to ensure that plaintiffs have full and equal
access to music lyrics); Ball v. AMC Entertainment, Inc., 315 F.Supp.2d 120, No. Civ. A.00-867
(D.D.C. May 3, 2004) (approving class settlement alleging a failure to provide reasonable accommodations including captioning). And DOJ has similarly enforced title III’s effective
communication requirement, including, more recently, as to Internet and web-based goods and services.6 The requirement to provide effective communication applies to MIT’s online
6 Statement of Interest of the United States, Nat’l Assoc. of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012), www.ada.gov/briefs/netflix_SOI.pdf (addressing captioning of online streaming video service); Consent Decree, Nat’l Fed. of the Blind, et al., United States of America v. HRB Digital LLC and HRB Tax Group, Inc., No. 1:13-cv-10799 (March 25, 2014), www.ada.gov/hrb-cd.htm (addressing the accessibility of H&R Block’s website); Settlement Agreement, The United States of America and Ahold U.S.A., Inc. and Peapod, LLC (November 14, 2014), http://www.ada.gov/peapod_sa.htm (addressing the accessibility of Peapod’s website); Settlement Agreement, The United States of America and edX, Inc. (April 2, 2015), http://www.ada.gov/edx_sa.htm (addressing the accessibility of an online learning platform); Statement of Interest of the United States, New v. Lucky Brand Dungarees Stores, Inc.,51 F.Supp.3d 1284 (S.D. Fla. 2014), www.ada.gov/briefs/lucky_brand_soi.pdf (addressing
9

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 11 of 28
programming. As Congress expressly stated when passing the ADA, “…the types of accommodation and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times[,]” and that technological advances “may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities.” See H.R. Rep. No. 485, pt. 2, at 108 (1990).
Moreover, since the ANPRM was issued in 2010, this Court and other courts have allowed litigation of title III claims alleging the failure to provide equal access to the web-based services of a public accommodation. See Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 205 n.2 (D. Mass. 2012); Nat’l Fed’n of the Blind v. Scribd, Inc., 2015 U.S. Dist. LEXIS 34213 *26 (D. Vt. March 19, 2015). The fact that the regulatory process is pending does not support MIT’s claim that its online programming is not currently covered by title III requirements. (Motion at 11). Directly to the contrary, and as explained in the Department’s ANPRM: “The Internet as it is known today did not exist when Congress enacted the ADA and, therefore, neither the ADA nor the regulations the Department promulgated under the ADA specifically addresses access to Web sites. But the statute’s broad and expansive nondiscrimination mandate reaches goods and services provided by covered entities on Web sites over the Internet.” 75 Fed Reg. 43,460, 46,463 (emphasis added). See also Netflix, 869 F. Supp. 2d at 200 (excluding web-based services would “run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the
the effective communication requirements of the ADA to point-of-sale devices); Agreement Between the United States and Walt Disney World Co. (January 17, 1997), www.ada.gov/disney-sa.htm (requiring Walt Disney World to provide auxiliary aids and services necessary for deaf and hard of hearing individuals to enjoy its programs and services, including captioning).
10

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 12 of 28
goods, services, privileges, and advantages available indiscriminately to other members of the general public.”) (quoting Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, Inc., 37 F.3d 12, 20 (1st Cir. 1994)). This Court is thus wellequipped to resolve Plaintiffs’ legal claim, and should therefore reject MIT’s attempt to convert a clear-cut ADA claim into something dependent on future rulemaking.
In another title III effective communication claim, one district court, in analyzing a primary jurisdiction challenge, rejected its application because the relevant ADA determinations were within the conventional competence of the courts and because there was no administrative proceeding to which to refer the parties. See Arizona ex rel. Goddard v. Harkins Amusement Enterprises., 2011 U.S. Dist. LEXIS 127682 *12 (D. Ariz. Feb. 8, 2011). In Harkins, plaintiffs alleged violations of the ADA against a movie theater chain that did not provide auxiliary aids and services, including closed captioning. 603 F.3d 666, 668 (9th Cir. 2010). The movie chain argued that the case should be stayed under the primary jurisdiction doctrine, pending the promulgation of DOJ regulations regarding captioning at movie theaters. Harkins, No. 0700703, 2011 U.S. Dist. LEXIS 127682 at *4. The district court disagreed, finding “there is no administrative proceeding to which [the court] can refer the parties; the parties will not directly participate in the DOJ’s rulemaking; the parties will be forced to wait an indefinite duration for the DOJ NPRM and final rule; the DOJ is not capable of resolving the parties’ entire dispute; and Courts routinely decide ADA cases involving accommodations and undue burden.” Id. at *12. The court held that “[a]lthough the DOJ is responsible for issuing regulations for the ADA, this alone does not invoke primary jurisdiction.” Id. at *7-*8. The Harkins Court’s reasoning is equally applicable to this case, and MIT’s primary jurisdiction contention should be rejected.
11

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 13 of 28
Likewise, other cases cited by MIT equally support that this Court should retain jurisdiction because the legal claim at issue is one that the Court is fully able to resolve. In Massachusetts v. E*Trade Access, Inc., this Court denied defendant’s motion for judgment on the pleadings on grounds that even though the desired remedy on inaccessible ATMs, voiceguidance technology, was not specifically required by current DOJ regulations, the plaintiffs had put forward a legally sufficient claim that the ATMs were not accessible or independently usable by individuals who are blind and that a remedy was required. No. 03-11206, 2005 U.S. Lexis 22621 *11-12 (D. Mass, Feb. 22, 2005). This Court stated, “Although their preferred remedy is not available under the existing regulations, the Plaintiffs can seek the necessary modifications to the ATMs … [E*Trade] operates…, so that blind people may have access to and independently use these ATMs.” Id. Similarly, in this case, Plaintiffs have put forth a legally sufficient claim that MIT’s online programming is inaccessible, and Plaintiffs can avail themselves of the current effective communication regulation to challenge their exclusion.
MIT’s reliance upon United States v. National Amusements, Inc., 180 F. Supp. 2d 251, 258 (D. Mass 2001) is also unavailing. In National Amusements, plaintiffs alleged that stadiumstyle theaters denied equal access to individuals who used wheelchairs and therefore violated the general nondiscrimination provisions of the ADA. Defendants argued that Congress intended the ADA to be enforced through a specific regulatory framework rather than through the broad language of the general prohibitions in the statute, and that since they had complied with the specific regulatory provision at issue, plaintiffs could not state a claim under the general prohibitions. This Court agreed with defendants and held that compliance with the specific regulations for new construction was sufficient to satisfy the title III requirements of the ADA. As in National Amusements, in this case there is a preexisting specific regulation that imposes
12

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 14 of 28
obligations upon MIT to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. 28 C.F.R. § 36.303(c)(1). However, unlike this Court’s determination in National Amusements, MIT has not satisfied the specific regulatory provision at issue in this case. Thus, the pending status of the website accessibility rule does not preclude the enforcement of the current specific requirement.
Moreover, the absence of administrative adjudication authority under the ADA, and thus of any potential redress for Plaintiffs in an alternate forum, further weighs against a stay or dismissal on primary jurisdiction grounds. MIT appears to argue that DOJ’s pending rulemaking on web accessibility is a “determination” that lies at the heart of the task assigned to the agency by Congress and that this favors primary jurisdiction. However, most of the cases MIT cites in support of this proposition are inapplicable because, in those cases, the “determination” at issue was, in fact, the agency’s ability to resolve the pending dispute through an administrative adjudicative process.7 DOJ enforces title III and promulgates the title III regulation, but has no adjudicative procedures or authority.
The few cases MIT cites that address pending rulemaking are also distinguishable. In Netflix, this Court ordered a stay with respect to the FCC’s pending first-time regulation implementing a new statute, the Twenty-First Century Communications and Video Accessibility Act (“CVAA”), because the issuance of the final regulation was imminent. No. 11-30168, 2011 U.S. Dist. LEXIS 130443, at *2-*3 (D. Mass. Nov. 10, 2011) (noting that court assumed the regulation would be issued within two months of stay). The plaintiffs alleged that the failure to provide closed captioning on Netflix’s on demand web-based video service violated the ADA.
7 See, e.g., Mass v. Blackstone Valley Elec. Co, 67 F.3d 981, 992-93, Am. Tel & Tel. Co. v. IMR Capital Corp., 888 F. Supp. 221, 244-45 (D. Mass 1995) and Clark v. Time Warner Cable, 523 F.3d 110 (9th Cir. 2008).
13

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 15 of 28
The rule implementing the CVAA explained, for the first time, the requirement to caption certain content made available on Netflix. Thus, waiting two months for the CVAA final rule materially aided this Court because knowing the CVAA requirements allowed the Court to determine whether the application of title III to Netflix was also necessary to provide captioning on other content not covered by CVAA to ensure equal access.8 Moreover, a stay of two months was minimal and was not prejudicial to plaintiffs. There is no equivalent issue in this case. Similarly, in Kappelmann v. Delta Air Lines, Inc., appellants asked the court to rule that a new law, the Hazardous Materials Transportation Act of 1975, required airlines to warn passengers when a plane was carrying radioactive materials. 539 F.2d 165, 169-71 (D.C. Cir. 1976). In Kappelmann, the D.C. Circuit invoked primary jurisdiction because the case involved a new law, for which the agency was setting a new regulatory scheme. Here, in contrast, the ADA and its implementing regulations have been in effect for over two decades; and, relying on this established authority, courts have construed the ADA to require equal access to services provided online.
2. No Specialized Agency Expertise is Necessary to Address Plaintiffs’ Claim. Resolution of Plaintiffs’ ADA claim does not require specialized expertise beyond the knowledge of federal courts. Applying a long-established civil rights law to the facts here does not require a specialized expertise typical of the agencies to which courts have deferred jurisdiction. For example, in Kappelmann, the court lacked the requisite expertise to apply a new law prior to the issuance of its implementing regulation and therefore deferred to the Federal Aviation Administration because its pending rule would explain for the first time, what
8 In 2012, this Court denied a motion for judgment on the pleadings in the Netflix case alleging the failure to provide closed captions on a web-based video service. See Netflix, Inc., 869 F. Supp. 2d at 205 n.2.
14

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 16 of 28
constituted unsafe radioactivity levels. Id. In contrast, in this matter, this Court can determine what auxiliary aids and services are necessary to ensure effective communication. As explained above, courts routinely decide the extent to which auxiliary aids and services, such as closed captioning, are required under the ADA and whether a title III entity can show that providing auxiliary aids and services constitutes a fundamental alteration or an undue burden. To be sure, the web accessibility rule under development will provide additional guidance and technical standards for web accessibility. However, the projected publication date for the notice of proposed rulemaking is a year away, and the requirements will not become final until a final rule is published after an additional comment period. The title III statute and existing regulation apply to Plaintiffs’ claim. Of course, in the absence of specific technical standards, the obligation to provide auxiliary aids and services to ensure effective communication is flexible and is dependent on the facts particular to the claim, not the agency’s expertise. See 28 C.F.R. Part 36, App. C, § 36.303 (“The auxiliary aid requirement is a flexible one. A public accommodation can choose among various alternatives as long as the result is effective communication.”); see also Statement of Interest of the United States at 8-9, New v. Lucky Brand Dungarees Stores, Inc.,51 F.Supp.3d 1284 (S.D. Fla. 2014), www.ada.gov/briefs/lucky_brand_soi.pdf. Such a determination falls squarely within this Court’s purview.
Other federal courts, under analogous circumstances, have declined to exercise primary jurisdiction.9 For example, in Disability Rights Council of Greater Wash. v. Wash. Metro. Area
9 See e.g., Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 at 580-81 (declining to invoke the primary jurisdiction doctrine where the matter was not “so technical as to be beyond the understanding of judges or juries,” even where some consultation with experts was required); Harkins, 2011 U.S. Dist. LEXIS 127682 *12 (D. Ariz. Feb. 8, 2011) (declining to invoke primary jurisdiction because the parties will be forced to wait an indefinite duration for the DOJ final rule and courts routinely decide ADA cases involving accommodations and undue
15

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 17 of 28
Transit Auth., a district court declined to invoke primary jurisdiction when considering whether paratransit services satisfied the ADA. 239 F.R.D. 9, 20 (D.D.C. 2006). The court reasoned that “Whether or not a practice limits the availability of a public service, particularly when availability is measured from the perspective of the user – as it must be measured here – is a question that can be answered by reference to the knowledge and experience of lay persons, including judges” and that “requires no particular technical, policy, or administrative expertise.” Id. Similarly, this Court need only consider whether Plaintiffs are being provided equal access to MIT’s online programming and whether MIT can avail itself of a defense to the provision of auxiliary aids and services. Such fact-based determinations are well within the conventional competence of the courts.10
In sum, Plaintiffs’ claim does not require specialized agency expertise to unravel intricate, technical facts because the requirement to furnish auxiliary aids and services is flexible and is within the conventional competence of the courts. Moreover, Plaintiffs have a legitimate and important claim now under the current law, which requires equal access in the absence of a defense, and this Court is well-equipped to address Plaintiffs’ civil rights claim. Accordingly, the Court should deny the motion to stay or dismiss the case.
burden); Nader v. Allegheny Airlines, 426 U.S. 290, 305-06 (1976) (referral to the FAA was inappropriate because fraudulent misrepresentation claims “are within the conventional competence of the courts, and the judgment of a technically expert body is not likely to be helpful in the applications of these standards to the facts of the case”). 10All of the cases upon which MIT relies in support of its argument that agency expertise is required are inapposite because they address referral to an agency’s adjudicative process; as explained above, DOJ does not have such a process. See Nader e.g., 426 U.S. at 305-07 (court addressed whether referral to the FAA for adjudication was appropriate); see also Blackstone Valley Elec. Co., 67 F.3d at 992-93 (referred case to the EPA for an administrative determination); N. Cnty. Comms. Corp. v. Cal. Catalog & Tech., 594 F.3d 1149, 1162 (9th Cir. 2010) (referred case to the FCC for an administrative determination); American Tel. & Tel. Co v. IMR Capital Corp. 888 F. Supp. 221, 245 (D. Mass 1995) (same).
16

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 18 of 28
B. Plaintiffs State a Claim Under the ADA and Section 504. “The sole inquiry under Rule 12(b)(6) is whether, construing the well-pleaded facts of the
complaint in the light most favorable to the plaintiffs, the complaint states a claim for which relief can be granted.” Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 7 (1st Cir. 2011). A complaint must provide the defendant with “fair notice of what the . . . claim is and the grounds upon which it rests” (Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted)) and must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).
1. MIT’s Provision of Online Programming is Subject to Title III of the ADA. Plaintiffs’ Complaint sufficiently pleads a violation of title III of the ADA. In moving to dismiss Plaintiffs’ claim, MIT appears to ask this Court to ignore the express statutory and regulatory obligation under title III to provide auxiliary aids or services when necessary to ensure equal access to individuals with disabilities. Alternatively, MIT asks this Court to find, as a matter of law, that these obligations do not apply to MIT’s online programming services. In support, MIT makes two arguments. First, MIT contends that the only ADA statutory and regulatory provisions applicable to MIT’s online programming are the title III barrier removal requirements, which do not address websites and therefore, do not require MIT to remove the “barriers” Plaintiffs allegedly encountered. Second, MIT argues that it is not required to caption its online programming because title III does not require public accommodations to stock accessible or special goods. Both arguments fail.
17

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 19 of 28
a. Specific Rules Governing Facility Construction, Alteration, and Barrier Removal Neither Apply to Nor Limit Plaintiffs’ Request for Relief.
Contrary to MIT’s assertions, the inaccessible online programming at issue in this matter is not a structural or architectural barrier subject to the ADA’s new construction, alteration and barrier removal requirements; rather, it is a service provided by MIT, a public accommodation, subject to title III’s general nondiscrimination and effective communication requirements. MIT’s confusion on this point appears to stem from a misreading of the First Circuit’s discussion and holding in Carparts, which held that a public accommodation under title III of the ADA is not limited to physical structures. 37 F.3d at 19. The Court specifically analyzed a “travel service,” which is identified in the statute as a public accommodation, and concluded that Congress clearly intended to “include providers of services which do not require a person to physically enter an actual physical structure.” Id. The Carparts holding goes only to establishing coverage under the ADA and certainly does not dictate, as MIT argues, that online services are subject to the ADA’s construction requirements for physical facilities. (Motion at 29, n.15.) Here, of course, there can be no genuine dispute that MIT, as a private educational institution, is a public accommodation and thus subject to all applicable title III requirements, including the obligation to provide auxiliary aids and services to individuals with disabilities to ensure equal access to online programming.11
11 Neither is there any support for MIT’s argument that Plaintiffs’ claims implicate communications barriers of a structural nature subject to Title III’s barrier removal rules. (Motion at 30, n.15). Communication barriers that are "structural in nature" are barriers that are an integral part of the physical structure of a facility, such as conventional signage, which generally is inaccessible to people who have vision impairments, and audible alarm systems, which are inaccessible to people with hearing impairments. See Title III Technical Assistance Manual §III-4.4100. In contrast, the provision of auxiliary aids and services, including captioning, “is not a communication barrier that is structural in nature.” Id.
18

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 20 of 28
b. The Provision of Appropriate Auxiliary Aids Does Not Alter the Content of the “Goods or Services” Provided by a Public Accommodation.
MIT contends that the ADA does not require it to caption its online programming because it is not required to provide or create accessible or special goods. (Motion at 33). In support of this position MIT makes two related arguments: 1) the ADA does not require covered entities to change the content of their services or create a different good; and 2) the title III regulation’s “inventory exception” at 28 C.F.R. § 36.307 does not require MIT to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities. (Motion at 33). These arguments fail because Plaintiffs do not request different or additional content; they seek only access to the same content that MIT makes available to the general public.
MIT first relies on a line of insurance cases in which individuals with disabilities challenged the substance of their insurance policies. Courts rejected plaintiffs’ claims that the ADA requires insurance companies to alter or modify the content of the insurance services. See, e.g., Ford v. Schering-Plough Corp., 145 F.3d 601, 613 (3d. Cir. 1998); McNeil v. Time Ins. Co, 205 F.3d 179, 188 (5th Cir. 2000); Doe v. Mut. Of Omaha Ins. Co., 179 F.3d 557, 559-60 (7th Cir. 1999). These cases are inapposite because they are about altering the substantive content of insurance policies, e.g., the amount of coverage available for a certain condition; they are not about the provision of auxiliary aids that would allow an individual with a disability access to the same content, e.g., providing an individual the insurance policy in an alternative format, as in the matter before this Court.
Moreover, MIT’s assertion that the provision of closed captions would result in a “different” good, and thus is not required, is incorrect. In Harkins, 603 F.3d at 671, the Ninth
19

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 21 of 28
Circuit rejected a similar argument where a defendant movie theater claimed it did not have to provide closed captioning because the ADA did not, in its view, require public accommodations to “offer different goods or services, just nondiscriminatory enjoyment of those that are provided.” The Ninth Circuit held that defendant’s cramped interpretation would effectively eliminate the duty of a public accommodation to provide auxiliary aids and services. Id. at 672 (quoting Harkins 548 F. Supp. 2d 723, 727-28 (D. Ariz. 2008)). As the court further explained, “[b]y its very definition, an auxiliary aid or service is an additional and different service that establishments must offer the disabled. For example, a courthouse that was accessible only by steps could not avoid ADA liability by arguing that everyone – including [individuals who use wheelchairs] – has equal access to the steps. And an office building could not avoid having to put Braille numbering on the buttons in its elevator by arguing that everyone – including [individuals who are blind] – has equal access to the written text.” Id. As the Harkins decision demonstrates, providing auxiliary aids and services does not change the content of MIT’s online programming or result in “different” online programming, but rather enables individuals with disabilities to access the content MIT already provides.
Second, MIT misapplies title III’s regulatory “inventory exception,” at 28 C.F.R. § 36.307, to its online programming services. Section 36.307 provides that a public accommodation is not required to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities. This regulatory provision is meant to excuse a retailer from stocking variations of a good for every conceivable disability because such a requirement would change the nature of the retailer’s business. See, e.g. 28 C.F.R. Part 36, App. C § 36.302 (“the rule enunciated in § 36.307 is consistent with the ‘fundamental alteration’ defense to the reasonable modifications requirement of § 36.302”).
20

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 22 of 28
DOJ’s interpretive guidance on this provision explains that the purpose of the ADA’s public accommodations requirements is to ensure accessibility to the goods offered by a public accommodation, not to alter the nature or mix of goods that the public accommodation has typically provided. 28 C.F.R. Part 36, App. C § 36.307. See Title III Technical Assistance Manual §III-4.2500 (“The ADA does not require the bookstore to expand its inventory to include large print books or audio tape.”) (emphasis added). The inventory exception does not limit a public accommodation’s obligation, however, to provide auxiliary aids and services under 28 C.F.R. § 36.303. A bookstore, for example, would not have to stock Brailled versions of books under § 36.307, but if the bookstore were hosting an author lecture on its website, it would have to provide auxiliary aids and services to participants who are deaf, such as closed captioning.
The cases relied on by MIT to support application of § 36.307 are distinguishable. In those cases, plaintiffs wanted to stock a particular kind of good in addition to what the retailer ordinarily provides. See, e.g., Karczewski v. K Motors, Inc., No. 14-2701, 2015 U.S. Dist. LEXIS 45226 *7-*8 (S.D. Cal. March 23, 2015) (“. . . a car dealership does not have to alter its inventory to include vehicles with special modifications for disabled drivers.”). By contrast, Plaintiffs here are not asking MIT to create additional online programming; they are asking MIT to provide appropriate auxiliary aids and services so that they can access the same content that MIT makes available to individuals without disabilities.
2. Section 504 Requires that MIT Provide Meaningful Access to Its Online Programming.
Without auxiliary aids and services, Plaintiffs cannot meaningfully access MIT’s online programming. Under Section 504, “Where the plaintiffs identify an obstacle that impedes their access . . . they likely have established that they lack meaningful access to the program or
21

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 23 of 28
benefit.” Am. Council of the Blind v. Paulson, 525 F.3d 1257, 1267 (D.C. Cir. 2008). In contrast, where the plaintiffs seek to “expand the substantive scope of a program or benefit, they
likely seek a fundamental alteration to the existing program or benefit and have not been denied meaningful access.” Paulson, 525 F.3d at 1267; see also Alexander v. Choate, 469 U.S. 287,
306 (1985) (plaintiffs not entitled to greater substantive privileges by eliminating the durational
limit on inpatient coverage); Am. Council of the Blind v. Astrue, 2008 U.S. Dist. LEXIS 86524
*16 (N.D. Cal. April 23, 2008) (denying a motion to dismiss because plaintiffs were not challenging the substance of their benefits, they were challenging “only the methods through which individuals are notified of all manner of notices from [defendants]”).12 In this case,
Plaintiffs do not seek more online programming than that provided to individuals without
disabilities, they seek meaningful access to the same online programming provided to individuals without disabilities. In moving to dismiss Plaintiffs’ Section 504 claim, MIT argues: (1) that it is
only required to provide meaningful access to students with disabilities, not the general public;
and (2) that the Section 504 regulation does not apply to website accessibility. As explained
below, both arguments fail. MIT’s argument that Section 504 does not govern Plaintiffs’ claim is unsupported by the
plain language and application of the Section 504 regulation and ED’s interpretation of its
regulation. MIT incorrectly argues that Section 504 applies only to students, relying on the
12 As explained above, MIT cannot rely on a fact-based defense such as fundamental alteration at this stage of the litigation. Accordingly, MIT’s reliance on Wynne v. Tufts University School of Medicine, 932 F.2d 19, 27-28 (1st Cir. 1991) (en banc) is misplaced. In Wynne, the First Circuit remanded a decision granting summary judgment to a university because it had failed to demonstrate that there was no reasonable way to accommodate a student’s disability. Here, the parties have not engaged in discovery and MIT’s fact-based defenses are prematurely raised at this stage of the case. Moreover, even if captioning certain programming would result in a fundamental alteration, MIT would still be obligated to provide auxiliary aids and services for online programming to the extent it would not result in a fundamental alteration. Additionally, MIT’s reliance on Board of Education v. Rowley, 458 U.S. 176 (U.S. 1982) is misplaced. Rowley involves a claim brought pursuant to the Individuals with Disabilities Education Act, which only applies to elementary and secondary schools and has no application to universities, including MIT.
22

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 24 of 28
Section 504 postsecondary education rules in Subpart E, which, indeed, apply to students with disabilities.13 (Motion at 21). 34 C.F.R. §§ 104.41-47. MIT fails to recognize, however, that non-students are also ensured meaningful access to online programming under ED’s Section 504 general antidiscrimination provision, which applies to qualified individuals with disabilities, and is not limited to students with disabilities. 34 C.F.R. § 104.4 (emphasis added).
Specifically, § 104.4 requires that with respect to qualified individuals with disabilities, MIT must: (1) ensure they are afforded the opportunity to participate in or benefit from an aid, benefit, or service that is equal to that afforded to others (34 C.F.R. § 104.4(b)(1)(ii)); (2) ensure that equally effective aids, benefits, and services afford such individuals the opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement (34 C.F.R. § 104.4(b)(2)); and (3) prohibit the provision of an aid, benefit, or service that is not as effective as that provided to others (34 C.F.R. § 104.4(b)(1)(iii)). Where, as here, MIT offers its online programming to all members of the general public, Plaintiffs, are “qualified” to avail themselves of MIT’s service because they “meet[] the essential eligibility requirements for the receipt of such services.” 34 C.F.R. § 104.3(l)(4). In sum, ED’s 504 regulatory provision 34 C.F.R. § 104.4 applies to all individuals with disabilities who wish to participate in MIT’s online programming.
MIT’s argument that Plaintiffs cannot rely on the nondiscrimination requirements of § 104.4 because the provision does not specifically address “website accessibility or captioning online video content” is equally flawed. (Motion at 25). The absence of the term “website
13 MIT also incorrectly argues that the facilities access rules, 34 C.F.R. §§ 104.21-23, which apply to physical structures, apply to Plaintiffs’ claims. While MIT devotes considerable argument (Motion at 20-21) to the interpretation and application of ED’s facilities access rule, Plaintiffs do not allege such a violation.
23

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 25 of 28
accessibility or captioning online video content” from the regulation (which was promulgated nearly forty years ago, well before the Internet) does not support that such programming is excluded from Section 504 coverage. ED’s interpretation of its regulation, as reflected in both its guidance and administrative enforcement, supports that Section 504 applies to online programming. Specifically, ED’s guidance makes clear that when colleges and universities require the use of emerging technology, they must ensure that the technology is implemented in a way that affords persons with disabilities an equal opportunity to participate in and benefit from the technology.14 Relying on 34 C.F.R. § 104.4, ED explained that requiring use of a certain technology that is inaccessible to individuals with disabilities is discrimination under Section 504 and the ADA, unless individuals with disabilities are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner. The guidance documents do not only address devices, as MIT suggests, but instead address the considerations at play when devices are used “as part of the[] programs, services, activities, goods, advantages, privileges or accommodations” of the
14 See e.g., U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter (June 29, 2010), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html; U.S. Dep’t of Educ., Frequently Asked Questions About the June 29, 2010, Dear Colleague Letter, at 1, 4 (May 26, 2011), http://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.pdf. (“The principles in the DCL apply to the online programs that are part of the operations of the school, i.e., provided by the school directly or through contractual or other arrangements.”). In addition, MIT mischaracterizes the meaning of the guidance when it argues that FAQ 12 “explicitly eschews a ‘caption or remove’ approach” because schools may provide “traditional alternative media as an accommodation to provide equal access to educational opportunities and benefits provided to all students.” (Motion at 26). Significantly, MIT omits that FAQ 12 addressed circumstances where a school uses emerging technology for students without disabilities but wants to avail itself of traditional alternative media for a student with a disability. In such a circumstance, “the alternative media must provide access to the benefits of technology in an equally effective and equally integrated manner.” Id. at 7. Thus, FAQ 12 has no bearing on the circumstances at issue here, where MIT provides its service – online programming – through emerging technology and provides very limited access to Plaintiffs.
24

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 26 of 28
colleges or universities; and address the general requirements of colleges and universities with respect to individuals with disabilities and emerging technology.15
Further, in its enforcement of Section 504, ED’s Office for Civil Rights (“OCR”) has interpreted 34 C.F.R. § 104.4 to apply to online programs and activities available to the general public. OCR has consistently applied § 104.4 in its Letters of Finding and Resolution Agreements and in response to OCR’s Compliance Reviews to require equal access for individuals with disabilities, and not solely students with disabilities, to recipients’ websites and online programming.16 In sum, MIT’s argument that Section 504 does not govern Plaintiffs’ claim is unsupported by case law requiring meaningful access, the plain language of the regulation, and ED’s interpretation and enforcement of its regulation. See Choate, 469 U.S. at 301; Am. Council of the Blind v. Paulson, 525 F.3d at 1267; 34 C.F.R. §104.4. Plaintiffs’ Complaint sufficiently pleads a violation of Section 504 and its implementing regulation, and this action should not be dismissed under Section 504.
IV. CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court consider this Statement of Interest in this litigation and deny Defendant MIT’s Motion to Stay or Dismiss.
15 U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter (June 29, 2010), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html (emphasis added).
16 See, e.g., OCR Letters and Resolution Agreements: University of Cincinnati (December 18, 2014), http://go.usa.gov/3XbQw and http://go.usa.gov/3XbQB (university’s websites must be accessible to persons with disabilities, including students, prospective students, employees and visitors); Youngstown State University (December 12, 2014), http://go.usa.gov/3XbnJ and http://go.usa.gov/3XbQY (same); and South Carolina Virtual Charter Schools (March 20, 2014), http://www2.ed.gov/documents/press-releases/south-carolina-charter-schoolletter.doc and http://www2.ed.gov/documents/press-releases/south-carolina-charter-school-agreement.doc (schools’ external websites and schools’ online learning websites must be accessible).
25

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 27 of 28

Respectfully submitted this 25th day of June, 2015.

LORETTA E. LYNCH Attorney General for the United States

CARMEN M. ORTIZ United States Attorney District of Massachusetts

VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division

/s/Jennifer A. Serafyn JENNIFER A. SERAFYN STEPHEN P. HEYMANN Assistant United States Attorneys District of Massachusetts John Joseph Moakley Federal Courthouse One Courthouse Way, Suite 9200 Boston, MA 02210 Telephone: (617) 748-3188 jennifer.serafyn@usdoj.gov

EVE L. HILL Deputy Assistant Attorney General Civil Rights Division
REBECCA B. BOND Chief Disability Rights Section
KATHLEEN P. WOLFE Special Litigation Counsel Disability Rights Section

AMANDA L. MAISELS Deputy Chief Disability Rights Section

JAMES COLE, JR. General Counsel United States Department of Education
FRANCISCO LOPEZ MICHELLE TUCKER Attorneys United Stated Department of Education Office of General Counsel 400 Maryland Ave, S.W. Washington, D.C. 20202

/s/ Charlotte Lanvers CHARLOTTE LANVERS Trial Attorney Disability Rights Section Civil Rights Division Washington, D.C. 20202 United States Department of Justice 950 Pennsylvania Avenue, N.W., (NYA) Washington, D.C. 20530 Telephone: (202) 305-0706 charlotte.lanvers@usdoj.gov

Counsel for the United States

26

Case 3:15-cv-30024-MGM Document 34 Filed 06/25/15 Page 28 of 28
CERTIFICATE OF SERVICE I hereby certify that Statement of Interest, filed through the CM/ECF system on this 25th day of June, 2015, will be sent electronically to the registered participates as identified on the Notice of Electronic Filing (NEF). I am not aware of any non-registered participants, so electronic filing is the sole means of service of this document.
Respectfully submitted, /s/ Charlotte Lanvers CHARLOTTE LANVERS Trial Attorney Disability Rights Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, N.W. (NYA) Washington, D.C. 20530 Telephone: (202) 305-0706 charlotte.lanvers@usdoj.gov Counsel for the United States of America
27

 </s> Case 3:15-cv-30024-KAR Document 159 Filed 03/28/19 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

NATIONAL ASSOCIATION OF THE DEAF, )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

MASSACHUSETTS INSTITUTE OF

)

TECHNOLOGY,

)

)

Defendant.

)

Case No. 3:15-cv-30024-KAR

MEMORANDUM AND ORDER REGARDING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS
(Dkt. No. 148)

ROBERTSON, U.S.M.J.

The National Association of the Deaf, on behalf of its members and three individually

named plaintiffs, C. Wayne Dore, Christy Smith, and Lee Nettles (collectively, “Plaintiffs”),1

brought this putative class action under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794 (“Section 504”), and Title III of the Americans with Disabilities Act of 1990, 29 U.S.C. §§

12181-12189 (“Title III” or “ADA”), against the Massachusetts Institute of Technology (“MIT”)

for failure to provide equal access for deaf and hard of hearing individuals to much of the audio

and audiovisual content that MIT makes available online to the general public. Plaintiffs seek

declaratory and injunctive relief requiring MIT to provide timely, accurate captioning or

transcripts of this content.

On November 4, 2016, the Honorable Mark G. Mastroianni adopted a report and

recommendation denying MIT’s Motion to Stay or Dismiss (Dkt. No. 24), which argued for

1 On March 16, 2016, the court was notified of the death of Diane Nettles, one of the original individual plaintiffs (Dkt. No. 57).

Case 3:15-cv-30024-KAR Document 159 Filed 03/28/19 Page 2 of 3
dismissal based on the doctrine of primary jurisdiction or, alternatively, that Plaintiffs’ complaint failed to state a claim (Dkt. No. 78). The parties have since consented to this court's jurisdiction for all purposes (Dkt. No. 144). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
Plaintiffs have filed a related case against Harvard University and its governing board, the President and Fellows of Harvard College (collectively, “Harvard”), for failure to provide equal access for deaf and hard of hearing individuals to much of the audio and audiovisual content that Harvard makes available to the general public for free. Nat’l Ass’n of the Deaf, et al., v. Harvard University, et al., No. 3:15-cv-30023-KAR (D. Mass. Feb. 12, 2015). The complaints are similar, differing only in the factual allegations relating to the locations and substance of the online content Plaintiffs attribute to Harvard and the online content they attribute to MIT. While the court has not consolidated the cases,2 many of the status conferences and motion hearings have been held jointly.
On December 9, 2016, MIT filed its Answer (Dkt. No. 83) and on August 24, 2018, MIT filed a Motion for Judgement on the Pleadings (“MIT’s Motion”) pursuant to Federal Rule of Civil Procedure 12(c) (Dkt. No. 148). MIT argues, as does Harvard in its Rule 12(c) motion, that it is entitled to judgment on the pleadings on the grounds that Plaintiffs have failed to state a claim under Title III because MIT’s websites are not places of public accommodation under 42 U.S.C. § 12182(a); that Plaintiffs have failed to state a claim under Section 504 because MIT’s online content is not an aid, benefit, or service under Section 504’s implementing regulations; and that the Community Decency Act, 47 U.S.C. § 230(c)(1) shields MIT from liability as to content posted by third parties and third-party content embedded in MIT’s online audiovisual
2 Plaintiffs filed a motion to consolidate for purposes of discovery in the Harvard case which remains pending.
2

Case 3:15-cv-30024-KAR Document 159 Filed 03/28/19 Page 3 of 3

content (Dkt. No. 149). Plaintiffs oppose MIT’s motion (Dkt. No. 152). Although the Rule 12(c) motions in the related cases are not mirror images, the arguments raised by the parties are the same. Having carefully reviewed all of the pleadings related to MIT’s Rule 12(c) motion (Dkt. Nos. 1, 83, 148, 149, 152, and 153) and all the supporting authorities cited therein and heard from the parties at oral argument, for the reasons set forth in the court’s Memorandum and Order Regarding Defendants’ Motion for Judgment on the Pleadings issued this same date in National Association of the Deaf, et al., v. Harvard University, et al., No. 3:15-cv-30023-KAR (Dkt. No. 173), MIT’s Motion is DENIED in part and GRANTED in part.

Dated: March 28, 2019

/s/ Katherine A. Robertson_____ KATHERINE A. ROBERTSON United States Magistrate Judge

3

 </s> Case 3:15-cv-30024-KAR Document 209 Filed 03/27/20 Page 1 of 10

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

NATIONAL ASSOCIATION OF

)

THE DEAF, et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 3:15-cv-30024-KAR

)

MASSACHUSETTS INSTITUTE OF

)

TECHNOLOGY,

)

)

Defendant.

)

MEMORANDUM AND ORDER REGARDING PLAINTIFFS’ ASSENTED-TO MOTION TO CERTIFY THE CLASS FOR SETTLEMENT PURPOSES AND FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (Dkt. No. 194)

ROBERTSON, U.S.M.J.

I.

INTRODUCTION

Plaintiffs National Association of the Deaf (“NAD”), C. Wayne Dore, Christy Smith, and

Lee Nettles (collectively, “Plaintiffs”) commenced this putative class action in February 2015.

On behalf of a proposed class of deaf and hard of hearing individuals, Plaintiffs asserted that the

defendant, the Massachusetts Institute of Technology (“MIT”), was in violation of Section 504

of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title III of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12181, because of an alleged lack of close captioning or

unintelligible captioning of videos and audio tracks made publicly available by MIT. Following

lengthy negotiations, the parties have reached a settlement and executed a proposed consent

decree. Before the court is the Plaintiffs’ Assented-to Motion to Certify the Class for Settlement

Purposes and for Preliminary Approval of Class Action Settlement (“Plaintiffs’ Motion”) (Dkt.

No. 194). For the reasons set forth below, the court GRANTS Plaintiffs’ Motion.

1

Case 3:15-cv-30024-KAR Document 209 Filed 03/27/20 Page 2 of 10
II. CLASS CERTIFICATION AND PRELIMINARY APPROVAL OF CONSENT DECREE Before certifying a class for purposes of settlement and preliminarily approving a class settlement agreement, the court must be satisfied that: (A) the proposed class should be certified for the purpose of settlement; (B) the settlement is fair, reasonable, and adequate; and (C) the proposed notice and notice plan satisfy due process requirements. See Fed. R. Civ. P. 23(e).
A. The Proposed Class Should be Certified i. The Requirements of Rule 23(a)
Plaintiffs propose to certify the following class: [A]ll persons (other than students of MIT) who, at any time between February 11, 2012 and the date of preliminary approval of this settlement, have claimed or could have claimed to assert a right under Title III of the ADA, the Rehabilitation Act, and/or other federal, state or local statutes or regulations that set forth standards or obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder, alleging that they are deaf or hard of hearing and that MIT has failed to make accessible to persons who are deaf or hard of hearing online content posted and available for the general public that is produced, created, hosted, linked to, or embedded by MIT (Dkt. No. 194 at 3). First, the court finds, as Plaintiffs contend, that the class is sufficiently large that joinder is impracticable. See New Eng. Carpenters Health Benefits Fund v. First Databank, Inc., Civil Action No. 05-cv-11148-PBS, Civil Action No. 07-10988-PBS, 2009 WL 10703302, at *2 (D. Mass. Mar. 30, 2009). The threshold for numerosity is not high. See Connor B. ex rel. Vigurs v. Patrick, 272 F.R.D. 288, 292 (D. Mass. 2011). The online content at issue in this case is publicly available and of interest to a wide range of individuals. There is a substantial population of individuals in this country who are deaf or hard of hearing, any one of whom may have sought access during the relevant period to audio or audiovideo content that MIT makes available to the general public on one of MIT’s websites or on an official channel hosted by a third party
2

Case 3:15-cv-30024-KAR Document 209 Filed 03/27/20 Page 3 of 10
platform such as YouTube. Moreover, Plaintiffs represent that discovery established that dozens of NAD members sought access to MIT’s online web materials before and during the course of this litigation. This information is a sufficient basis for finding that the numerosity requirement is satisfied, and the court so finds.
The court also finds that the commonality and typicality requirements are satisfied. See Connor B., 272 F.R.D. at 292-93 (stating that the commonality and typicality requirements tend to merge) (citing Gen’l Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)). Commonality is, again, not a high bar. See id. at 293. Here, all members of the proposed class are in the same position legally vis-à-vis the accessibility of MIT’s online content. As the proposed class is defined, all of its members are deaf or hard of hearing and have been unable to access MIT’s online content because it was not captioned or it was captioned unintelligibly. “The third requirement of Rule 23(a) requires that the named Plaintiffs’ claims be typical of the absent class members. The claims of the entire class need not be identical, but the class representatives must generally ‘possess the same interests and suffer the same injury’ as the unnamed class members.” Id. at 296 (quoting Falcon, 457 U.S. at 156). Plaintiffs allege that each named class representative and each member of the proposed class has been denied access to the same uncaptioned material pursuant to the same general practices of MIT, thus satisfying the requirements of a common interest and a common injury.
Fourth, the requirement for fair and adequate representation of the proposed class is satisfied. “[A] named plaintiff is adequate if his ‘interests … will not conflict with the interests of any of the class members,’” Brito v. Barr, 395 F. Supp. 3d 135, 147 (D. Mass. 2019) (quoting Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985)) (alteration in original), if common legal questions apply to the claims of the named plaintiffs and members of the proposed
3

Case 3:15-cv-30024-KAR Document 209 Filed 03/27/20 Page 4 of 10
class, id. at 148, and if the attorneys representing the class are qualified and competent. Connor B., 272 F.R.D. at 297 (citing Andrews, 780 F.2d at 130). As noted above, the interests of the named plaintiffs and those of members of the proposed class are the same, as are the legal questions raised by their claims. Counsel for all parties in this case have provided representation of the very highest caliber, vigorously and thoughtfully advocating for their clients. For their part, Plaintiffs have ensured that they are represented by experienced advocates who specialize in litigating disability rights class actions. Plaintiffs are represented by Joseph Sellers and Shaylyn Cochran of Cohen Milstein Sellers & Toll PLLC; Thomas P. Murphy and Tatum A. Pritchard of the Disability Law Center, Inc.; Amy Farr Robertson of the Civil Rights Education and Enforcement Center; Arlene Mayerson and Carly A. Myers of the Disability Rights Education and Defense Fund, Inc.; and Howard Rosenblum of the National Association of the Deaf. Plaintiffs’ counsel report that they have invested substantial time and resources in litigating this case, have conducted an extensive investigation into questions related to the captioning of MIT’s online content, and that the legal team includes lawyers who have a deep familiarity with the needs of individuals who are deaf or hard of hearing and with the state-of-the-art technology that can serve their needs (Dkt. No. 195 at 13 & n.3). The requirements of Rule 23(a) are satisfied.
ii. The Requirements of Rule 23(b)(2) “In addition to satisfying the four elements of Rule 23(a), Plaintiffs must demonstrate that they also meet one of the requirements set forth in Rule 23(b). Here, Plaintiffs assert that they have satisfied the requirements of Rule 23(b)(2), which applies when ‘the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.’” Connor B., 272 F.R.D. at 297 (quoting Fed. R. Civ. P. 23(b)(2)). This is a quintessential Rule 23(b)(2) case. See Reid v. Donelan, 297 F.R.D. 185, 193 (D. Mass. 2014) (stating that “civil rights actions like this one, where a party charges that another has engaged in unlawful behavior
4

Case 3:15-cv-30024-KAR Document 209 Filed 03/27/20 Page 5 of 10
toward a defined group, are ‘prime examples’ of Rule 23(b)(2) classes”) (quoting Amchen Prods., Inc. v. Windsor, 521 U.S. 591, 614)). In alleging a lack of access to MIT’s publicly available online content, Plaintiffs, on their own behalf and on behalf of the potential class, have advanced a common contention in this litigation “generally applicable to all members of the class.” Id. Plaintiffs seek injunctive relief that sets standards for access to MIT’s online content for individuals who are deaf or hard of hearing and do not “request any damages that have the potential to muddy the analysis.” Id. MIT has assented to Plaintiffs’ Motion and does not dispute that Plaintiffs have shown that the class meets the requirements of Rule 23(b)(2) and that class treatment is appropriate.
For the foregoing reasons, the court will certify the proposed class as defined above for settlement purposes, appoint plaintiffs C. Wayne Dore, Christy Smith, and Lee Nettles as class representatives, and appoint Plaintiffs’ proposed counsel as counsel for the class.
B. Preliminary Approval of the Proposed Consent Decree A court may approve a class settlement only if the settlement is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). The factors by which a proposed settlement is judged are whether: (i) the class representatives and class counsel adequately represented the class; (ii) the proposed settlement was negotiated at arm’s length; (iii) the relief obtained for the class is adequate; and (iv) the proposed settlement treats class members equitably relative to each other. Id. Judged by these factors, the court finds that the proposed Consent Decree is fair, reasonable, and adequate. i. Plaintiff’s Class has been Admirably Represented “The duty of adequate representation requires counsel to represent the class competently and vigorously and without conflicts of interest with the class.” In re Pharm. Indus. Average
5

Case 3:15-cv-30024-KAR Document 209 Filed 03/27/20 Page 6 of 10
Wholesale Price Litig., 588 F.3d 24, 36 n.12 (1st Cir. 2009). The court must be satisfied that the interests of the class representatives do not conflict with the interests of any of the class members, Andrews, 780 F.2d at 130, and that Plaintiffs’ counsel are qualified and experienced and provided vigorous representation during the course of the case. Id.
As is set forth above, the interests of C. Wayne Dore, Christy Smith, and Lee Nettles, the named plaintiffs, are consistent with the interests of the members of the proposed class. All share a common interest in access to MIT’s online content as defined in the proposed Consent Decree (Dkt. No. 195 at 10, 12-13). Because the class representatives seek “the same remedy . . . based on an identical theory” as the rest of the class, there is no conflict between the class representatives and other members of the proposed class. See Reid, 297 F.R.D. at 191. The class representatives have actively participated in this litigation, regularly attending substantive hearings held by the court and consulting with counsel about the management and direction of the litigation. NAD, one of the plaintiffs, is the leading national civil rights organization advocating for deaf and hard of hearing individuals and is uniquely positioned to represent the interests of the class. Plaintiffs have retained qualified and highly skilled attorneys with a demonstrated record of success in cases similar to this one (Dkt. No. 195 at 13-14). This case was filed when pre-suit discussions between Plaintiffs’ counsel and Harvard did not result in an agreement about access to Harvard’s online content for members of the general public who are deaf and hard of hearing. Settlement was reached after four years spent alternately litigating and negotiating. Plaintiffs’ counsel investigated the factual and legal bases for the class claims, opposed two dispositive motions, engaged in extensive discovery and analysis of the information received from MIT, and negotiated long and hard seeking the best outcome for their clients. The
6

Case 3:15-cv-30024-KAR Document 209 Filed 03/27/20 Page 7 of 10
court has no doubt that Plaintiffs’ counsel have vigorously and competently represented their clients in reaching the proposed settlement. See Connor B., 272 F.R.D. at 297.
ii. The Proposed Consent Decree Results from True Arm’s Length Negotiations A settlement is presumed to be reasonable when it is achieved by arm’s length negotiations conducted by experienced counsel. In re Pharm. Indus., 588 F.2d at 33; Roberts v. TJX Cos., Inc., Civil Action No. 13-cv-13142-ADB, 2016 WL 8677312, at *5-6 (D. Mass. Sept. 30, 2016). The proposed settlement is the product of extended negotiations that began even before the litigation was filed. The settlement has been extensively negotiated among counsel and during multiple sessions in formal mediation, first with Linda Singer, a private mediator, and then with Magistrate Judge Judith Dein of this court. It is obvious to the court that Plaintiff’s counsel have invested substantial time and resources to advance the interests of the settlement class. In the court’s view, settlement is an eminently reasonable choice. The court has twice ruled that Plaintiffs’ complaint states claims under the Rehabilitation Act and Title III of the ADA. At the same time, because the case raises complex and unresolved issues under Title III and the Communications Decency Act of 1996, 47 U.S.C. § 230, it is difficult to predict the outcome of this case. Further, MIT acknowledges the importance of access to its publicly available online content and has expressed a commitment to accessibility. Given these factors, the court has been of the view that a negotiated settlement might be possible and would serve the interests of all parties. The settlement the parties have negotiated achieves positive results for class members. See Bacchi v. Mass. Mut. Life Ins. Co., Civil Action No. 12-11280-DJC, 2017 WL 5177610, at *2 (D. Mass. Nov. 8, 2017). The court is informed that “[t]he parties reached full agreement on the injunctive relief before beginning to negotiate attorneys’ fees and costs,” The Civil Rights Educ. & Enf’t Ctr. v. RLJ Lodging Tr., Case No. 15-cv-0224-YGR, 2016 WL
7

Case 3:15-cv-30024-KAR Document 209 Filed 03/27/20 Page 8 of 10
314400, at *2 (N.D. Cal. Jan. 25, 2016), a further indication that counsel placed their clients’ interests firmly in first place.
For the foregoing reasons, the court will grant preliminary approval of the proposed consent decree and will hear further argument for or against the decree at the fairness hearing, which will be held on July 14, 2020 at 11:00 a.m. See In re P.R. Cabotage Litig., 269 F.R.D. 125, 142 (D.P.R. 2010).
III. PROPOSED NOTICE AND NOTICE PLAN The parties have shown the court that it will likely be able to approve the proposed
consent decree and certify the class for purposes of judgment on the proposal. See Fed. R. Civ. P. 23(e)(1)(B)(i) and (ii). Accordingly, the court must “direct notice in a reasonable manner to all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1)(B).
Class members are entitled to receive “the best notice practicable” under the circumstances. Burns v. Elrod, 757 F.2d 151, 154 (7th Cir. 1985) (citing Fed. R. Civ. P. 23(c)(2)). Notice is satisfactory “if it generally describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.” Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (internal citation and quotation marks omitted). “The hallmark of the notice inquiry … is reasonableness.” Lucas v. Kmart Corp., 234 F.R.D. 688, 696 (D. Colo. 2006) (citing Sollenbarger v. Mountain States Tel. & Tel. Co., 121 F.R.D. 417, 436 (D.N.M. 1988)); see also, e.g., Tulsa Prof’l Collection Servs., Inc. v. Pope, 485 U.S. 478 (1988). The Civil Rights Educ. & Enf’t Ctr., 2016 WL 314400, at *11 (alteration in original). The parties have conferred and agreed upon a proposed notice and a proposed notice plan. Having reviewed the proposed notice, the court finds that it satisfies the notice standard. The proposed notice includes a clear and comprehensive summary of the provisions of the proposed settlement. It defines the relevant terms, explains what content will be captioned, when the captioning will occur, and “explains to class members their right to object and be heard in open court.” Id., at *12.
8

Case 3:15-cv-30024-KAR Document 209 Filed 03/27/20 Page 9 of 10
The jointly crafted notice plan provides that Plaintiffs’ counsel will create a website where a copy of the notice in English and American Sign Language will be posted. The Civil Rights Education Center, the Disability Law Center, the Disability Rights Education and Defense Fund, and NAD will post a link to the notice page on their respective websites; the organizations will email an accessible copy of the notice to their members; class counsel will email an accessible copy of the notice to other organizations who may provide services to class members; and, for six weeks, MIT will post a link to an accessible copy of the notice on four MIT web pages. The court is satisfied that this electronic publication is “the most reasonable manner to ensure that class members receive word of the settlement.” Id., at *12; see also Colo. CrossDisability Coal. v. Abercrombie & Fitch Co., Civil Action No. 09-cv-02757-WYD-KMT, 2015 WL 5695890, at *2 (D. Colo. Sept. 29, 2015) (finding that a similar notice plan satisfied Rule 23(e) and Due Process). Online publication of the notice is particularly appropriate here because the class, by definition, consists of individuals who access online content and have at least some familiarity with the Internet. Accordingly, the court will approve the form of notice and the jointly proposed notice plan as the best form of notice in the circumstances of the case.
IV. CONCLUSION As set forth above, the court holds as follows:
1. The following class is certified for settlement purposes: All persons (other than students of the Massachusetts Institute of Technology) who, at any time between February 11, 2012 and the date of preliminary approval of this settlement, have claimed or could have claimed to assert a right under Title III of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and/or other federal, state or local statutes or regulations that set forth standards or obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder, alleging that they are deaf or hard of hearing and that Harvard has failed to make accessible to persons who are deaf or hard of
9

Case 3:15-cv-30024-KAR Document 209 Filed 03/27/20 Page 10 of 10

hearing online content posted and available for the general public that is produced, created, hosted, linked to, or embedded by MIT.

2. The court appoints named plaintiffs C. Wayne Dore, Christy Smith, and Lee Nettles as class representatives.

3. The court appoints the following lawyers as class counsel: Joseph Sellers and Shaylyn Cochran of Cohen Milstein Sellers & Toll PLLC; Thomas P. Murphy and Tatum A. Pritchard of the Disability Law Center, Inc.; Amy Farr Robertson of the Civil Rights Education and Enforcement Center; Arlene Mayerson and Carly A. Myers of the Disability Rights Education and Defense Fund, Inc.; and Howard Rosenblum of the National Association of the Deaf.

4. The proposed Consent Decree is preliminarily approved.

5. The proposed notice and the jointly proposed plan for dissemination of the proposed notice is approved.

6. The court sets the following deadlines, noting that these deadlines are subject to adjustment by agreement of counsel in view of the COVID-19 pandemic and its impact on the parties and their staffs:

a. Plaintiffs will issue the notice to the class by April 7, 2020; b. The deadline to submit objections to the settlement in accordance with
the instructions in the notice is May 19, 2020; c. Responses to objections will be submitted by May 26, 2020; and d. A fairness hearing will be held on July 14, 2020 at 11:00 a.m.

It is so ordered.

Dated: March 27, 2020

/s/ Katherine A. Robertson KATHERINE A. ROBERTSON United States Magistrate Judge

10

 </s> Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 1 of 29
CONSENT,STAYED
United States District Court District of Massachusetts (Springfield) CIVIL DOCKET FOR CASE #: 3:15−cv−30024−KAR

National Association of the Deaf et al v. Massachusetts Institute of Technology Assigned to: Magistrate Judge Katherine A. Robertson Cause: 42:1218(2) Americans with Disabilities Act
Plaintiff

Date Filed: 02/12/2015 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

National Association of the Deaf

represented by Amy F. Robertson Civil Rights Education and Enforcement Center 1245 E. Colfax Ave. Suite 400 Denver, CO 80218 303−757−7901 Fax: 303−595−9705 Email: arobertson@creeclaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Arlene B. Mayerson Disability Rights Education and Defense Fund, Inc. 3075 Adeline Street Suite 210 Berkeley, CA 94703−2578 510−644−2555 Fax: 510−841−8645 Email: amayerson@dredf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bill Lann Lee Civil Rights Education and Enforcement Center 2120 University Ave. Berkeley, CA 94704 510−431−8484 Email: blee@creeclaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carly A. Myers Disability Rights Education & Defense Fund 3075 Adeline Street, Suite 210 Berkeley, CA 94703 510−644−2555 Email: cmyers@dredf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Caroline Jackson The National Association of the Deaf Law and Advocacy Center

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 2 of 29
8630 Fenton Street, Suite 820 Silver Spring, MD 20910 301−587−1788 Fax: 301−587−1789 TERMINATED: 04/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard Rosenblum National Association of the Deaf 8630 Fenton Street, Suite. 820 Silver Spring, MD 20910 310−587−1788 Fax: 310−587−1791 Email: howard.rosenblum@nad.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Sellers Cohen Milstein Sellers & Toll PLLC 1100 New York Ave NW #500 Washington, DC 20005 (202) 408−4600 Email: jsellers@cohenmilstein.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Wilensky Civil Rights Education and Enforcement Center 2120 University Ave. Berkeley, CA 94704 510−431−8484 Email: jwilensky@creeclaw.org TERMINATED: 08/05/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc P. Charmatz The National Association of the Deaf Law and Advocacy Center 8630 Fenton Street, Ste. 820 Silver Spring, MD 20910 301−587−1788 Fax: 301−587−1789 Email: marc.charmatz@nad.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Namita Gupta Disability Rights Education and Defense Fund 3075 Adeline Street, Ste. 210 Berkely, CA 94703 510−644−2555 TERMINATED: 01/14/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 3 of 29
Sarah M. Morris Civil Rights Education and Enforcement Center 104 Broadwya, Ste. 400 Denver, CO 80203 303−757−7901 Email: smorris@creeclaw.org TERMINATED: 02/03/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shaylyn Cochran Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, NW Suite 500 Washington, DC 20005 202−408−4600 Email: scochran@cohenmilstein.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy P. Fox Civil Rights Education and Enforcement Center 1245 E. Colfax Ave. Suite 400 Denver, CO 80218 303−757−7901 Fax: 303−595−9705 Email: tfox@creeclaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caitlin H. Parton Disability Law Center 11 Beacon Street Suite 925 Boston, MA 02108 617−723−8455 ext. 124 Fax: 617−723−9125 Email: cparton@dlc−ma.org TERMINATED: 02/19/2020 ATTORNEY TO BE NOTICED
Tatum A. Pritchard Disability Law Center 11 Beacon Street Suite 925 Boston, MA 02108 617−723−8455 Email: tpritchard@dlc−ma.org ATTORNEY TO BE NOTICED
Thomas P. Murphy Disability Law Center, Inc. 32 Industrial Drive East Northampton, MA 01060 413−584−6524 Fax: 413−584−6524 Email: tmurphy@dlc−ma.org ATTORNEY TO BE NOTICED

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 4 of 29

Plaintiff C. Wayne Dore

represented by Amy F. Robertson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Arlene B. Mayerson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carly A. Myers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caroline Jackson (See above for address) TERMINATED: 04/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard Rosenblum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Wilensky (See above for address) TERMINATED: 08/05/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Namita Gupta (See above for address) TERMINATED: 01/14/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Morris (See above for address) TERMINATED: 02/03/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 5 of 29

Shaylyn Cochran (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Caitlin H. Parton (See above for address) TERMINATED: 02/19/2020 ATTORNEY TO BE NOTICED

Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED

Thomas P. Murphy (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Christy Smith

represented by Amy F. Robertson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Arlene B. Mayerson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carly A. Myers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Caroline Jackson (See above for address) TERMINATED: 04/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Howard Rosenblum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Sellers (See above for address)

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 6 of 29

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Julie Wilensky (See above for address) TERMINATED: 08/05/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc P. Charmatz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Namita Gupta (See above for address) TERMINATED: 01/14/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah M. Morris (See above for address) TERMINATED: 02/03/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Shaylyn Cochran (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Caitlin H. Parton (See above for address) TERMINATED: 02/19/2020 ATTORNEY TO BE NOTICED

Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED

Thomas P. Murphy (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lee Nettles

represented by Amy F. Robertson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Arlene B. Mayerson

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 7 of 29
(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carly A. Myers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caroline Jackson (See above for address) TERMINATED: 04/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard Rosenblum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Wilensky (See above for address) TERMINATED: 08/05/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc P. Charmatz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Namita Gupta (See above for address) TERMINATED: 01/14/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Morris (See above for address) TERMINATED: 02/03/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) LEAD ATTORNEY

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 8 of 29

PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Caitlin H. Parton (See above for address) TERMINATED: 02/19/2020 ATTORNEY TO BE NOTICED

Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED

Thomas P. Murphy (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Diane Nettles

represented by Amy F. Robertson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Arlene B. Mayerson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carly A. Myers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Caroline Jackson (See above for address) TERMINATED: 04/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Howard Rosenblum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 9 of 29

Julie Wilensky (See above for address) TERMINATED: 08/05/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc P. Charmatz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Namita Gupta (See above for address) TERMINATED: 01/14/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Morris (See above for address) TERMINATED: 02/03/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy P. Fox (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caitlin H. Parton (See above for address) TERMINATED: 02/19/2020 ATTORNEY TO BE NOTICED
Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED
Thomas P. Murphy (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Massachusetts Institute of Technology

represented by Andrew Kim Goodwin Procter LLP 1900 N St. NW Washington, DC 20036 (202) 346−4000 Email: andrewkim@goodwinlaw.com LEAD ATTORNEY PRO HAC VICE

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 10 of 29
ATTORNEY TO BE NOTICED
Christopher M. Morrison Jones Day (Bos) 100 High Street Boston, MA 02110 617−960−3939 Fax: 212−755−7306 Email: cmorrison@jonesday.com TERMINATED: 03/17/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janet Grumer Davis Wright Tremaine, LLP 865 S Figueroa Street, Ste. 2400 Los Angeles, CA 90017 213−633−6866 Fax: 213−633−4231 Email: janetgrumer@dwt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey R. Johnson Jones Day 51 Louisiana Avenue, S.W. Washington, DC 20001 202−879−7684 Fax: 202−626−1700 Email: jeffreyjohnson@jonesday.com TERMINATED: 03/17/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Naeve Jones Day 3161 Michelson Drive Suite 800 Irvine, CA 92612 (949) 851−3939 Email: rnaeve@jonesday.com TERMINATED: 03/17/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Roberto M. Braceras Goodwin Procter, LLP 100 Northern Avenue Boston, MA 02210 617−570−1895 Fax: 617−523−1231 Email: rbraceras@goodwinprocter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William M. Jay Goodwin Procter LLP 1900 N Stree N.W. Washington, DC 20036 202−346−4190 Email: wjay@goodwinlaw.com LEAD ATTORNEY

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 11 of 29

ATTORNEY TO BE NOTICED

Jennifer B. Luz Goodwin Procter, LLP 100 Northern Avenue Boston, MA 02210 617−570−1764 Fax: 617−523−1231 Email: jluz@goodwinprocter.com ATTORNEY TO BE NOTICED

Stephen M. Hoeplinger Schlichter, Bogard & Denton, LLP Suite 1200 100 S. Fourth Street St. Louis, MO 63102 314−621−6115 Email: shoeplinger@uselaws.com TERMINATED: 05/10/2016 ATTORNEY TO BE NOTICED

Interested Party The United States

represented by Charlotte L. Lanvers U.S. Department of Justice 950 Pennsylvania Ave (NYA) Washington, DC 20005 202−305−0706 Email: charlotte.lanvers@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party Edward W Orr

Mediator
Judith G. Dein TERMINATED: 02/19/2020

Date Filed 02/12/2015
02/12/2015 02/12/2015 02/12/2015

# Docket Text
1 COMPLAINT Class Action for Declaratory and Injunctive Relief against All Defendants Filing fee: $ 400, receipt number 0101−5404088 (Fee Status: Filing Fee paid), filed by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Civil Cover Sheet, # 2 Category Form, # 3 Proposed Summons)(Murphy, Thomas) (Attachment 1 and Attachment 2 replaced on 2/12/2015 with cover and category sheets in the correct PDF format) (Finn, Mary). Modified on 2/12/2015 (Finn, Mary). (Entered: 02/12/2015)
2 ELECTRONIC NOTICE of Case Assignment. Judge Mark G. Mastroianni assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Katherine A. Robertson. (Abaid, Kimberly) (Entered: 02/12/2015)
3 Summons Issued as to Massachusetts Institute of Technology. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Finn, Mary) (Entered: 02/12/2015)
4 MOTION for Leave to Appear Pro Hac Vice for admission of Bill Lann Lee, Julie Wilensky Filing fee: $ 200, receipt number 0101−5404618 by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit Certificate of Bill Lann Lee, # 2 Exhibit Signature of Julie

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 12 of 29

02/12/2015
02/12/2015 02/12/2015
02/17/2015 02/17/2015 02/17/2015
02/19/2015 02/23/2015 02/24/2015
03/05/2015 03/05/2015

Wilensky)(Murphy, Thomas) (Entered: 02/12/2015)
5 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 4 Motion for Leave to Appear Pro Hac Vice Added Bill Lann Lee and Julie Wilensky. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 02/12/2015)
6 MOTION for Leave to Appear Pro Hac Vice for admission of Arlene Mayerson, Namita Gupta Filing fee: $ 200, receipt number 0101−5404815 by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit Signature of Arlene Mayerson, # 2 Exhibit Signature of Namita Gupta)(Murphy, Thomas) (Entered: 02/12/2015)
7 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 6 Motion for Leave to Appear Pro Hac Vice Added Arlene B. Mayerson and Namita Gupta. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 02/12/2015)
8 CORPORATE DISCLOSURE STATEMENT by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Murphy, Thomas) (Entered: 02/17/2015)
9 MOTION for Leave to Appear Pro Hac Vice for admission of Timothy Fox, Sarah Morris Filing fee: $ 200, receipt number 0101−5410910 by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit Signature of Timothy Fox, # 2 Exhibit Signature of Sarah Morris)(Murphy, Thomas) (Entered: 02/17/2015)
10 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 9 Motion for Leave to Appear Pro Hac Vice Added Timothy Fox and Sarah Morris. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 02/17/2015)
11 AFFIDAVIT OF SERVICE Executed by Lee Nettles, National Association of the Deaf, Christy Smith, C. Wayne Dore, Diane Nettles. All Defendants. Acknowledgement filed by Lee Nettles, National Association of the Deaf, Christy Smith, C. Wayne Dore, Diane Nettles. (Murphy, Thomas) (Entered: 02/19/2015)
12 MOTION for Leave to Appear Pro Hac Vice for admission of Caroline Jackson, Marc Charmatz Filing fee: $ 200, receipt number 0101−5419524 by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit M. Charmatz signature, # 2 Exhibit C. Jackson signature)(Murphy, Thomas) (Entered: 02/23/2015)
13 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 12 Motion for Leave to Appear Pro Hac Vice Added Caroline E. Jackson and Marc P. Charmatz. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 02/24/2015)
14 Assented to MOTION for Extension of Time to May 11, 2015 to File Answer re 1 Complaint,, by Massachusetts Institute of Technology.(Morrison, Christopher) (Entered: 03/05/2015)
15 CORPORATE DISCLOSURE STATEMENT by Massachusetts Institute of Technology. (Morrison, Christopher) (Entered: 03/05/2015)

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 13 of 29

03/05/2015 03/06/2015
03/06/2015 03/06/2015 03/26/2015 05/08/2015 05/08/2015
05/11/2015 05/11/2015 05/11/2015 05/12/2015
05/21/2015 05/22/2015 06/11/2015

16 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Robert A. Naeve Filing fee: $ 100, receipt number 0101−5440654 by Massachusetts Institute of Technology. (Attachments: # 1 Exhibit A)(Morrison, Christopher) (Entered: 03/05/2015)
17 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 16 Motion for Leave to Appear Pro Hac Vice Added Robert A. Naeve. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 03/06/2015)
18 NOTICE of Appearance by Christopher M. Morrison on behalf of Massachusetts Institute of Technology (Morrison, Christopher) (Entered: 03/06/2015)
19 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 14 Motion for Extension of Time to Answer re 1 Complaint,, Massachusetts Institute of Technology answer due 5/11/2015. (Finn, Mary) (Entered: 03/06/2015)
20 NOTICE of Change of Address or Firm Name by Julie Wilensky (Wilensky, Julie) (Entered: 03/26/2015)
21 Assented to MOTION for Leave to File Memorandum of Law in Support of Defendant's Motion to Stay or Dismiss the Complaint by Massachusetts Institute of Technology.(Morrison, Christopher) (Entered: 05/08/2015)
22 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 21 Motion for Leave to File Document In Excess of Twenty Pages. Allowed, up to thirty−five pages. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Healy, Bethaney) (Entered: 05/08/2015)
23 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Jeffrey R. Johnson Filing fee: $ 100, receipt number 0101−5552467 by Massachusetts Institute of Technology. (Attachments: # 1 Declaration of Jeffrey R. Johnson, Esq.)(Morrison, Christopher) (Entered: 05/11/2015)
24 MOTION to Stay re 1 Complaint,, or MOTION to Dismiss by Massachusetts Institute of Technology.(Naeve, Robert). Added an additional relief − MOTION to Dismiss on 5/12/2015. (Finn, Mary). (Entered: 05/11/2015)
25 MEMORANDUM in Support re 24 MOTION to Stay re 1 Complaint,, or to Dismiss filed by Massachusetts Institute of Technology. (Naeve, Robert) (Entered: 05/11/2015)
26 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 23 Motion for Leave to Appear Pro Hac Vice Added Jeffrey R. Johnson. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 05/12/2015)
27 Assented to MOTION for Extension of Time to 06/25/2015 to File Response/Reply as to 24 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith.(Wilensky, Julie) (Entered: 05/21/2015)
28 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 27 Motion for Extension of Time to File Response/Reply re 24 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss Responses due by 6/25/2015. (Finn, Mary) (Entered: 05/22/2015)
29 MOTION for Leave to File Excess Pages by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith.(Fox, Timothy) (Entered: 06/11/2015)

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 14 of 29

06/11/2015
06/22/2015 06/22/2015 06/23/2015 06/25/2015 06/25/2015
06/26/2015 06/29/2015 06/29/2015 06/30/2015 07/20/2015
07/24/2015 08/14/2015
09/10/2015

30 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 29 Motion for Leave to File to file memorandum in Excess of 20 Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 06/11/2015)
31 NOTICE of Appearance by Charlotte L. Lanvers on behalf of The United States (Lanvers, Charlotte) (Entered: 06/22/2015)
32 MOTION for Leave to File a Statement of Interest in Excess of 20 Pages by The United States.(Lanvers, Charlotte) (Entered: 06/22/2015)
33 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 32 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 06/23/2015)
34 AMICUS BRIEF filed by The United States . (Lanvers, Charlotte) (Entered: 06/25/2015)
35 Opposition re 24 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss filed by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Appendix Appendix of Filings from Other Cases, # 2 Appendix Appendix A, # 3 Appendix Appendix B, # 4 Appendix Appendix C, # 5 Appendix Appendix D, # 6 Appendix Appendix E)(Murphy, Thomas) (Entered: 06/25/2015)
36 ELECTRONIC NOTICE issued requesting courtesy copy for 35 Opposition to Motion and supporting exhibits. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 7/3/2015. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Finn, Mary) (Entered: 06/26/2015)
37 Remark − Courtesy copy of document 35 received and placed in the file. (Finn, Mary) (Entered: 06/29/2015)
38 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered. REFERRING CASE to Magistrate Judge Katherine A. Robertson Referred for: Full Pretrial, No Dispositive Motions (ptn). Motions referred: 24 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss. Further information: for Report and Recommendation..(Pelegano, Theresa) (Entered: 06/29/2015)
39 MOTION for Leave to File Reply Memorandum by July 24, 2015 by Massachusetts Institute of Technology.(Morrison, Christopher) Modified on 6/30/2015 to correct date. (Calderon, Melissa) (Entered: 06/30/2015)
40 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 39 defendant's Motion for Leave to File Reply Memorandum by July 24, 2015. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Robertson, Katherine) (Entered: 07/20/2015)
41 REPLY to Response to 24 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss filed by Massachusetts Institute of Technology. (Naeve, Robert) (Entered: 07/24/2015)
42 ELECTRONIC NOTICE Setting Hearing on MOTION to Stay or Dismis (Dkt. No. 23 in 3:15−cv−30023−MGM) and MOTION to Stay or Dismiss (Dkt. No. 24 in 3:15−cv−30024−MGM) ISSUED: A Motion Hearing is set for 9/10/2015 at 2:30 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM (Calderon, Melissa) (Entered: 08/14/2015)
43 ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Motion Hearing re MOTION to Stay or Dismis (Dkt. No. 23 in

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 15 of 29

09/29/2015
09/29/2015
11/20/2015 11/20/2015 11/24/2015 12/04/2015 02/03/2016 02/09/2016
02/10/2016 02/10/2016 02/16/2016 02/19/2016

3:15−cv−30023−MGM) and MOTION to Stay or Dismiss (Dkt. No. 24 in 3:15−cv−30024−MGM) was held on 9/10/2015. Attorneys Present: Arlene B. Mayerson, Timothy P. Fox, Robert A. Naeve, Christopher M. Morrison and Charlotte L. Lanvers. Arguments were heard on the pending motions. This matter is taken under advisement. R&R to issue. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM (Calderon, Melissa) (Entered: 09/11/2015)
44 Transcript of Motion Hearing held on September 10, 2015, before Magistrate Judge Katherine A. Robertson. The Transcript may be purchased through Janice Russell at trussell31@tdsmail.com, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name: No Reporter Used. Digital Recording transcribed by Janice Russell. Redaction Request due 10/20/2015. Redacted Transcript Deadline set for 10/30/2015. Release of Transcript Restriction set for 12/28/2015. Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM(Scalfani, Deborah) (Entered: 09/29/2015)
45 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM(Scalfani, Deborah) (Entered: 09/29/2015)
46 NOTICE of Change of Address or Firm Name by Thomas P. Murphy for Julie Wilensky and Bill Lann Lee (Murphy, Thomas) (Entered: 11/20/2015)
47 NOTICE by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith re 35 Opposition to Motion, Notice of Supplemental Authority in Support of Opposition to Motion to Dismiss (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Murphy, Thomas) (Entered: 11/20/2015)
48 NOTICE by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith re 35 Opposition to Motion, Second Notice of Supplemental Authority in Support of Opposition to Motion to Dismiss (Attachments: # 1 Exhibit 1)(Murphy, Thomas) (Entered: 11/24/2015)
49 Notice of Supplemental Authorities re 24 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss (Attachments: # 1 Exhibit DOJ, Statement of Regulatory Priorities (November 24, 2015))(Naeve, Robert) (Entered: 12/04/2015)
50 NOTICE of Withdrawal of Appearance by Thomas P. Murphy of Sarah Morris (Murphy, Thomas) (Entered: 02/03/2016)
51 Magistrate Judge Katherine A. Robertson: ORDER entered. REPORT AND RECOMMENDATIONS re Defendant's 24 MOTION to Stay or Dismiss. For the reasons stated, it is this Court's recommendation that the Defendant's Motion to Stay or Dismiss be denied in its entirety. See attached R&R for complete details. Objections to R&R due by 2/23/2016.(Calderon, Melissa) (Entered: 02/09/2016)
52 NOTICE of Appearance by Roberto M. Braceras on behalf of Massachusetts Institute of Technology (Braceras, Roberto) (Entered: 02/10/2016)
53 NOTICE of Appearance by Stephen M. Hoeplinger on behalf of Massachusetts Institute of Technology (Hoeplinger, Stephen) (Entered: 02/10/2016)
54 Assented to MOTION for Extension of Time to March 18, 2016 to File Objections to Magistrate Judge's Report and Recommendation by Massachusetts Institute of Technology.(Braceras, Roberto) Modified on 2/17/2016 to change the relief type of the motion to Motion to ext. time to filed resp./reply. (Finn, Mary). (Entered: 02/16/2016)
55 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting (53) Motion for Extension of Time to File Response/Reply re (51 in 3:15−cv−30024−MGM) RESPONSES/OBJECTIONS due by 3/18/2016. Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM(Finn, Mary) Modified on 2/19/2016 to clean up the text. (Finn, Mary). (Entered: 02/19/2016)

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 16 of 29

02/19/2016 03/16/2016 03/16/2016 03/16/2016 03/16/2016 03/17/2016 03/17/2016
03/18/2016 03/22/2016 03/22/2016
04/08/2016 04/08/2016 04/25/2016
04/27/2016 04/29/2016

56 Set/Reset Deadlines as to 51 REPORT AND RECOMMENDATIONS. Defts' Objections due by 3/18/2016. (Finn, Mary) (Entered: 02/19/2016)
57 SUGGESTION OF DEATH Upon the Record as to Diane Nettles by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Murphy, Thomas) (Entered: 03/16/2016)
58 NOTICE of Withdrawal of Appearance by Christopher M. Morrison of Christopher M. Morrison (Morrison, Christopher) (Entered: 03/16/2016)
59 NOTICE of Withdrawal of Appearance by Christopher M. Morrison of Robert A. Naeve (Morrison, Christopher) (Entered: 03/16/2016)
60 NOTICE of Withdrawal of Appearance by Christopher M. Morrison of Jeffrey R. Johnson (Morrison, Christopher) (Entered: 03/16/2016)
61 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of William M. Jay Filing fee: $ 100, receipt number 0101−6025781 by Massachusetts Institute of Technology. (Attachments: # 1 Exhibit A)(Braceras, Roberto) (Entered: 03/17/2016)
62 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 61 Motion for Leave to Appear Pro Hac Vice Added William M. Jay. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 03/17/2016)
63 OBJECTION to 51 Report and Recommendations filed by Massachusetts Institute of Technology. (Braceras, Roberto) (Entered: 03/18/2016)
64 Assented to MOTION for Extension of Time to 4/8/16 to File Response/Reply as to 63 Objection to Report and Recommendations by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 03/22/2016)
65 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 64 Motion for Extension of Time to File Response/Reply re 51 REPORT AND RECOMMENDATIONS re 24 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss filed by Massachusetts Institute of Technology Recommendation: DENY. Pltfs' Reply due by 4/8/2016. (Finn, Mary) (Entered: 03/22/2016)
66 REPLY TO OBJECTION to 51 Report and Recommendations filed by The United States. (Lanvers, Charlotte) (Entered: 04/08/2016)
67 REPLY TO OBJECTION to 51 Report and Recommendations filed by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Murphy, Thomas) (Entered: 04/08/2016)
68 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered regarding 63 Defendant's Objection to Report and Recommendations, 67 Plaintiffs' Reply to Objection, and 66 United States of America's Reply to Objection. The Court wishes to clarify that it will not hold a hearing on the parties responses to the 51 Report and Recommendations. While the Court is mindful of Defendant's request in its Objection to hold a hearing, the Court notes that a hearing was already held before Judge Robertson issued her Report and Recommendations. The issues before the Court are largely questions of law and, given the thorough briefing and the hearing that has already occurred in this case, an additional hearing would not assist the Court in resolving the issues. (Montes, Mariliz) (Entered: 04/25/2016)
69 MOTION for Leave to File Reply in Support of Its Objections to the Magistrate Judge's Report and Recommendation by Massachusetts Institute of Technology. (Attachments: # 1 Proposed Reply)(Braceras, Roberto) (Entered: 04/27/2016)
70 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 69 Motion for Leave to File Reply in Support to its Objections ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Montes,

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 17 of 29

04/29/2016 05/02/2016 05/09/2016 05/23/2016 08/05/2016 09/23/2016
09/26/2016 11/04/2016
11/14/2016 11/14/2016 11/15/2016
11/15/2016 12/09/2016 12/13/2016 12/22/2016 12/22/2016

Mariliz) (Entered: 04/29/2016)
71 REPLY by Massachusetts Institute of Technology in support of 63 Objection to Report and Recommendations Reply In Support (Braceras, Roberto) Modified on 5/2/2016 to correct the text to reflect the document that is being filed. (Finn, Mary). (Entered: 04/29/2016)
72 NOTICE of Appearance by Jennifer B. Luz on behalf of Massachusetts Institute of Technology (Luz, Jennifer) (Entered: 05/02/2016)
73 NOTICE of Withdrawal of Appearance by Stephen M. Hoeplinger (Hoeplinger, Stephen) (Entered: 05/09/2016)
74 Motions Taken Under Advisement: 51 REPORT AND RECOMMENDATIONS re 24 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss filed by Massachusetts Institute of Technology Recommendation: DENY (Montes, Mariliz) (Entered: 05/23/2016)
75 NOTICE of Withdrawal of Appearance by Julie Wilensky (Wilensky, Julie) (Entered: 08/05/2016)
76 Notice of Supplemental Authorities re 51 REPORT AND RECOMMENDATIONS re 24 MOTION to Stay re 1 Complaint,, or to Dismiss MOTION to Dismiss filed by Massachusetts Institute of Technology Recommendation: DENY filed by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Attachments: # 1 Appendix)(Murphy, Thomas) (Entered: 09/23/2016)
77 Response by Massachusetts Institute of Technology to 76 Notice of Supplemental Authorities, . (Braceras, Roberto) (Entered: 09/26/2016)
78 Judge Mark G. Mastroianni: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, the court adopts Judge Robertson's 51 Report and Recommendations in full and the Defendants 24 Motion to Stay or Dismiss is hereby DENIED. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 11/04/2016)
79 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Andrew Kim Filing fee: $ 100, receipt number 0101−6372621 by Massachusetts Institute of Technology. (Attachments: # 1 Exhibit A)(Braceras, Roberto) (Entered: 11/14/2016)
80 Assented to MOTION for Extension of Time to December 9, 2016 to File Answer re 1 Complaint,, by Massachusetts Institute of Technology.(Braceras, Roberto) (Entered: 11/14/2016)
81 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 79 Motion for Leave to Appear Pro Hac Vice. Added: Andrew Kim. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Calderon, Melissa) (Entered: 11/15/2016)
82 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting Assented−to 80 MOTION to Extend Time to Answer the Complaint. Answer due by no later than December 9, 2016. (Calderon, Melissa) (Entered: 11/15/2016)
83 ANSWER to 1 Complaint,, by Massachusetts Institute of Technology.(Braceras, Roberto) (Entered: 12/09/2016)
84 NOTICE of Scheduling Conference. Scheduling Conference set for 1/17/2017 11:30 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. Joint Statement due by 1/10/2017.(Finn, Mary) (Entered: 12/13/2016)
85 Assented to MOTION to Continue Scheduling Conference to February 14, 15, 16 or 17, 2017 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 12/22/2016)
86 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Janet Grumer Filing fee: $ 100, receipt number 0101−6427961 by Massachusetts Institute of

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 18 of 29

12/23/2016
02/07/2017 02/07/2017 02/08/2017 02/14/2017
03/31/2017 04/03/2017
05/03/2017 05/04/2017 05/05/2017 05/08/2017

Technology. (Attachments: # 1 Exhibit A)(Braceras, Roberto) (Entered: 12/22/2016)
87 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 85 Motion to Continue the Scheduling Conference. The Scheduling Conference is reset to 2/14/2017 02:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson; granting 86 Motion for Leave to Appear Pro Hac Vice. Added Janet Grumer. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. . (Finn, Mary) (Entered: 12/23/2016)
88 Joint MOTION for Hearing by Telephone by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 02/07/2017)
89 Joint MOTION for Extension of Time to Comply with Federal Rule of Civil Procedure 26(f) and Local Rule 16.1 by Massachusetts Institute of Technology.(Braceras, Roberto) (Entered: 02/07/2017)
90 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 88 Motion to appear at the scheduling conference set to 2/14/2017 by telephone; granting 89 Joint MOTION for Extension of Time to Comply with Federal Rule of Civil Procedure 26(f) and Local Rule 16.1. Telephone Conference Information e−mailed to counsel who will participate by telephone, the other counsel will appear in person. (Finn, Mary) (Entered: 02/08/2017)
91 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Scheduling Conference held on 2/14/2017. Attorneys Present: Thomas P. Murphy, Timothy P. Fox (by telephone), Arlene B. Mayerson (by telephone), Stanley Eichner (by telephone), Caitlin Parton (by telephone), Roberto M. Braceras, Jennifer Luz, William M. Jay (by telephone), and Janet Grumer (by telephone). Colloquy re: status of the case. The parties are working closely towards trying to narrow the issues and/or possible resolution. A further Scheduling Conference is set for 4/4/2017 at 2:30 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. A joint status report report shall be filed by no later than 3/31/2017. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM (Calderon, Melissa) (Entered: 02/15/2017)
92 STATUS REPORT (JOINT) and Motion to Continue Scheduling Conference by Massachusetts Institute of Technology. (Braceras, Roberto) (Entered: 03/31/2017)
93 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered re Joint Status Report (Dkt. 92 ). A further status report shall be filed by no later than 5/3/2017. The parties' request to continue has been allowed inasmuch as the Scheduling Conference shall be rescheduled. The proposed date, however, is not available. The Scheduling Conference is reset for 5/10/2017 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. No further extensions should be anticipated. Associated Cases: 3:15−cv−30023−MGM & 3:15−cv−30024−MGM. (Calderon, Melissa) (Entered: 04/03/2017)
94 STATUS REPORT (JOINT) by Massachusetts Institute of Technology. (Braceras, Roberto) (Entered: 05/03/2017)
95 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered. The parties are directed to appear on May 10, 2017 at 11:00 a.m. for a status conference to report in further detail concerning the status of potential mediation. Counsel who desire to appear by telephone at the status conference may file a motion requesting leave to do so. (Robertson, Katherine) (Entered: 05/04/2017)
96 Joint MOTION for Hearing by Telephone (Status Conference 05/10/2017) by Massachusetts Institute of Technology.(Braceras, Roberto) (Entered: 05/05/2017)
97 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting (96) Motion for Certain Counsel to appear at the 5/10/2017 Status Conference by

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 19 of 29

05/10/2017
05/19/2017 06/02/2017 07/26/2017 07/27/2017 08/02/2017
09/21/2017 09/22/2017 09/22/2017

telephone in case 3:15−cv−30023−MGM; granting (96) Motion for Certian Counsel to Appear at the 5/10/2017 Status Conference by telephone in case 3:15−cv−30024−MGM. Telephone call in information e−mailed to counsel this date. Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM(Finn, Mary) (Entered: 05/08/2017)
98 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Scheduling Conference held on 5/10/2017. Attorneys Present: Thomas P. Murphy, Caroline Jackson (by telephone), Stanley Eichner (by telephone), Caitlin Parton (by telephone), Roberto M. Braceras, Jennifer Luz, William M. Jay (by telephone), Andrew Kim (by telephone), Janet Grumer (by telephone) and Namita Gupta (by telephone). Colloquy re: status of the case. Further deadlines were established. A status report, informing the selection of the private mediator, shall be filed by no later than 5/19/2017; a status report, notifying the timetable of the mediation schedule, shall be filed by no later than 6/2/2017; and a Status Conference is set for 8/2/2017 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. No further deadlines were set. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM (Calderon, Melissa) (Entered: 05/15/2017)
99 STATUS REPORT (JOINT) by Massachusetts Institute of Technology. (Braceras, Roberto) (Entered: 05/19/2017)
100 STATUS REPORT (Joint) by Massachusetts Institute of Technology. (Braceras, Roberto) (Entered: 06/02/2017)
101 Joint MOTION for Hearing by Telephone (Status Conference 8/2/17) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 07/26/2017)
102 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 101 Motion for Certain Attortneys' to appear at the 8/2/2017 Status Conference by Telephone. Telephone Conference Information e−mailed to counsel this date. (Finn, Mary) (Entered: 07/27/2017)
103 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference held on 8/2/2017. Attorneys Present: Thomas P. Murphy, Roberto M. Braceras and Jennifer B. Luz. Attorneys on the Telephone: Caroline Jackson, Timothy P. Fox, Caitlin Parton, Stanley Eichner, William M. Jay and Janet Grumer. Colloquy re: status of the cases. Plaintiffs to respond to defendants' proposal (in 15−cv−30023) by the end of August. A brief Joint Status Report (as to both cases) shall be filed by no later than 9/22/2017. A Status Conference is set for 9/25/2017 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM & 3:15−cv−30024−MGM. (Calderon, Melissa) Modified on 8/8/2017 to correct date. (Calderon, Melissa) (Entered: 08/08/2017)
104 Joint MOTION for Hearing by Telephone (Status Conference 9/25/17) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 09/21/2017)
105 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 104 Motion for Certain Counsel to appeal at the 9/25/2017 Status Conference by telephone. Telephone Conference Information e−mailed to counsel this date. (Finn, Mary) (Entered: 09/22/2017)
106 STATUS REPORT (Joint) by Massachusetts Institute of Technology. (Braceras, Roberto) (Entered: 09/22/2017)

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 20 of 29

09/25/2017
11/21/2017 11/22/2017 11/22/2017 11/27/2017
01/29/2018 01/30/2018 01/31/2018 01/31/2018

107 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference held on 9/25/2017. Attorneys Present: Thomas P. Murphy, Roberto M. Braceras and Jennifer B. Luz. Attorneys by Telphone: Caroline Jackson, Timothy P. Fox and Arlene B. Mayerson. Colloquy re: status of the case. A brief Joint Status Report shall be filed by no later than 11/27/2017 at 10:00 AM. A Status Conference is set for 11/27/2017 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM & 3:15−cv−30024−MGM. (Calderon, Melissa) (Entered: 09/25/2017)
108 Joint MOTION for Hearing by Telephone (Status Conference 11/27/17) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 11/21/2017)
109 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 108 Motion for certain attorney's to appear at the 11/27/2017 status conf. by telephone. Telephone conference information e−mailed to counsel this date. (Finn, Mary) (Entered: 11/22/2017)
110 STATUS REPORT (Joint) by Massachusetts Institute of Technology. (Braceras, Roberto) (Entered: 11/22/2017)
111 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference held on 11/27/2017. Attorneys Present: Timothy P. Fox and Roberto M. Braceras. Attorneys by Telephone: Caroline Jackson, Arlene B. Mayerson, Stanley Eichner and Janet Grumer. Colloquy re: status of the cases. A brief joint status report shall be filed by no later than 1/30/2018. A Status Conference is set for 1/31/2018 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM & 3:15−cv−30024−MGM. (Calderon, Melissa) (Entered: 11/30/2017)
112 Joint MOTION for Hearing by Telephone (Status Conference 1/31/18) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 01/29/2018)
113 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 112 the Parties Motion to allow certain attorneys' to appear at the 1/31/2018 Status Conference by telephone. Telephone call in information e−mailed to counsel this date. (Finn, Mary) (Entered: 01/30/2018)
114 STATUS REPORT (Joint) by Massachusetts Institute of Technology. (Braceras, Roberto) (Entered: 01/31/2018)
115 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference held on 1/31/2018. Attorneys Present: Thomas P. Murphy, Timothy P. Fox (by telephone), Arlene B. Mayerson (by telephone), Stanley Eichner (by telephone), Caitlin Parton (by telephone), Roberto M. Braceras, William M. Jay (by telephone), and Janet Grumer (by telephone). Colloquy re: status of the cases. A Status Report in 15−cv−30023−MGM shall be filed by 2/22/2018. An Initial Scheduling Conference is set for 3/7/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. A Status Report in 15−cv−30024−MGM shall be filed by 3/26/2018. A Status Conference is set for 3/28/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−MGM & 3:15−cv−30024−MGM. (Calderon, Melissa) (Entered: 02/06/2018)

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 21 of 29

01/31/2018 03/06/2018 03/06/2018
03/16/2018 03/19/2018 03/26/2018 03/29/2018 03/30/2018 03/30/2018 04/02/2018
05/04/2018 05/04/2018

116 ELECTRONIC NOTICE of Hearing ISSUED: A Status Conference is set for 3/28/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Calderon, Melissa) (Entered: 02/08/2018)
117 MOTION for Leave to Appear Pro Hac Vice for admission of Amy Farr Robertson Filing fee: $ 100, receipt number 0101−7038033 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Attachments: # 1 Affidavit signature page)(Murphy, Thomas) (Entered: 03/06/2018)
118 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting (120) Motion for Leave to Appear Pro Hac Vice. Added Amy Farr Robertson. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. in case 3:15−cv−30023−MGM; granting (117) Motion for Leave to Appear Pro Hac Vice. Added Amy Farr Robertson. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. in case 3:15−cv−30024−MGM Associated Cases: 3:15−cv−30023−MGM, 3:15−cv−30024−MGM(Finn, Mary) (Entered: 03/06/2018)
119 Assented to MOTION to Continue : ASSENTED−TO MOTION TO CONTINUE STATUS CONFERENCE by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Mayerson, Arlene) (Entered: 03/16/2018)
120 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 119 Motion to Continue the 3/28/2018 Status Conference. Status Conference reset to 4/2/2018 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Finn, Mary) (Entered: 03/19/2018)
121 Remark: In light of continuance of Status Conference, the Status Report is now due on 3/30/2018. (Calderon, Melissa) (Entered: 03/26/2018)
122 Joint MOTION for Hearing by Telephone (Status Conference 4/2/18) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 03/29/2018)
123 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 122 Motion for some of the Attorneys' to participate in the 4/2/2018 Status Conference by telephone. Telephone call in information e−mail to those counsel this date. (Finn, Mary) (Entered: 03/30/2018)
124 STATUS REPORT (Joint) by Massachusetts Institute of Technology. (Braceras, Roberto) (Entered: 03/30/2018)
125 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference held on 4/2/2018. Attorneys Present: Thomas P. Murphy and Roberto M. Braceras. Attorneys by Telephone: Arlene B. Mayerson, Caitlin Parton, Janet Grumer, William M. Jay and Andrew Kim. Colloquy re: status of the case. The parties are continuing to work on trying to resolve this matter. At the request of the parties, a Status Conference is set for 5/7/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. Status Report due by 5/4/2018. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Calderon, Melissa) (Entered: 04/07/2018)
126 Joint MOTION for Hearing by Telephone (Status Conference 5/7/18) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 05/04/2018)
127 Assented to MOTION to Continue Status Conference to 5/21/2018 : ASSENTED−TO MOTION TO CONTINUE STATUS CONFERENCE by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Mayerson, Arlene) (Entered: 05/04/2018)

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 22 of 29

05/04/2018 05/04/2018 05/18/2018 05/21/2018
06/15/2018 06/15/2018 06/18/2018 06/18/2018 06/18/2018 06/18/2018
07/02/2018

128 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting Assented−to 127 MOTION to Continue Status Report and Conference. The Status Conference is reset to 5/21/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. Joint Status Report due by 5/18/2018. (Calderon, Melissa) (Entered: 05/04/2018)
129 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 126 JOINT MOTION for Hearing by Telephone. Counsel may appear by telephone at the Status Conference on May 21, 2018. The clerk shall inform counsel of the procedures to follow in order to participate by telephone. (Calderon, Melissa) (Entered: 05/04/2018)
130 STATUS REPORT (Joint Status Report) by Massachusetts Institute of Technology. (Braceras, Roberto) (Entered: 05/18/2018)
131 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference held on 5/21/2018. Attorneys Present (in courtroom): Thomas P. Murphy and Roberto M. Braceras. Attorneys Present (by telephone): Arlene B. Mayerson, Janet Grumer, William M. Jay and Jennifer B. Luz. Colloquy re: status of the case. At the request of counsel, a further Status Conference is set for 6/18/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. Joint status report due by 6/15/2018. If additional time is requested, alternative Status Conference date set for 7/16/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. Joint status report due by 7/13/2018. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Calderon, Melissa) (Entered: 06/04/2018)
132 MOTION JOINT MOTION FOR HEARING BY TELEPHONE (STATUS CONFERENCE 6/18/18) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Mayerson, Arlene) (Entered: 06/15/2018)
133 Joint MOTION to Continue filing of the Status Report to June 18, 2018 , 9 AM ET by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Mayerson, Arlene) (Entered: 06/15/2018)
134 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 132 Parties Motion for Certain Counsel to Appear at the 6/15/2018 Status Conference by telephone.; granting, nunc pro tunc the parties 133 Joint Motion to Extend Time to 6/18/2018 to file the Parties' Status Report. Telephone conference information e−mailed to counsel this date. (Finn, Mary) (Entered: 06/18/2018)
135 Set/Reset Deadlines: Parties' Joint Status Report due by 6/18/2018. (Finn, Mary) (Entered: 06/18/2018)
136 STATUS REPORT (JOINT STATUS REPORT) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Robertson, Amy) (Entered: 06/18/2018)
137 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference held on 6/18/2018. Attorneys Present (in courtroom): Thomas P. Murphy and Roberto M. Braceras. Attorneys Present (by telephone): Arlene B. Mayerson, William M. Jay, Jennifer B. Luz and Janet Grumer. Colloquy re: status of the case. The parties are to jointly file a proposed schedule by no later 7/13/2018. The Status Conference set for 7/16/2018 is hereby VACATED. Once the joint proposal is filed, a scheduling order shall issue. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Calderon, Melissa) (Entered: 06/18/2018)
138 MOTION for Leave to Appear Pro Hac Vice for admission of Joseph M. Sellers Filing fee: $ 100, receipt number 0101−7213634 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit, # 2 Exhibit)(Murphy, Thomas) (Entered: 07/02/2018)

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 23 of 29

07/02/2018 07/03/2018
07/13/2018 07/16/2018 07/23/2018
07/23/2018 07/25/2018 08/02/2018 08/03/2018 08/24/2018 08/24/2018 09/10/2018

139 MOTION for Leave to Appear Pro Hac Vice for admission of Shaylyn C. Cochran Filing fee: $ 100, receipt number 0101−7213694 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit)(Murphy, Thomas) (Entered: 07/02/2018)
140 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 138 Motion for Leave to Appear Pro Hac Vice Added Joseph M. Sellers. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. ; granting 139 Motion for Leave to Appear Pro Hac Vice Added Shaylyn C. Cochran.. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 07/03/2018)
141 JOINT SUBMISSION pursuant to Local Rule 16.1 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 07/13/2018)
142 ELECTRONIC NOTICE TO COUNSEL: In light of the parties representation regarding consent to proceed before a U.S. Magistrate Judge in their Joint Statement (Dkt. No. 141 ), completed forms shall be filed on or before the close of business on July 27, 2018. Additional forms can be obtained on the Court's web page at http://www.mad.uscourts.gov. (Calderon, Melissa) (Entered: 07/16/2018)
143 Magistrate Judge Katherine A. Robertson: ORDER entered. SCHEDULING ORDER: Rule 26 Initial Disclosure to be completed by 8/19/2018. Motions for Leave to Amend the pleadings to add claims, defenses, or parties, if any, due by 8/3/2018. Motions for Judgment on the Pleadings filed if Plaintiffs choose not to seek leave to file an Amended Complaint due by 8/24/2018. Oppositions to any Motions for Leave to Amend the Pleadings due by 9/4/2018. Oppositions to any Motions for Judgment on the Pleadings due by 9/24/2018. Replies to any Motions for Leave to Amend Pleadings due by 9/24/2018. Replies to any Motions for Judgment on the Pleadings due by 10/12/2018. Non−Expert Discovery to be completed by 5/31/2019. Rebuttal Experts designated and information required by Fed.R.Civ.P. 26(a)(2) disclosed by 7/31/2019. Expert Depositions to be completed by 9/20/2019. Motion for Class Certification due by 9/30/2019. Oppositions due by 10/30/2019. Reply due by 11/13/2019. (Finn, Mary) (Main Document 143 replaced on 7/23/2018) (Calderon, Melissa). Modified on 7/23/2018 to correct date. (Calderon, Melissa) (Entered: 07/23/2018)
144 CONSENT by all parties to Jurisdiction by US Magistrate Judge by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.. (Murphy, Thomas) (Entered: 07/23/2018)
145 ELECTRONIC NOTICE of Reassignment. Magistrate Judge Katherine A. Robertson added. Judge Mark G. Mastroianni no longer assigned to case. (Danieli, Chris) (Entered: 07/25/2018)
146 Assented to MOTION for Extension of Time to −October 3, 2018 for initial written discovery requests− to Complete Discovery by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Mayerson, Arlene) (Entered: 08/02/2018)
147 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Plaintiff's Assented to 146 Motion to Extend to 10/3/2018 the time for the Parties to serve Initial Written Discovery Requests. (Finn, Mary) (Entered: 08/03/2018)
148 MOTION for Judgment on the Pleadings by Massachusetts Institute of Technology.(Braceras, Roberto) (Entered: 08/24/2018)
149 MEMORANDUM in Support re 148 MOTION for Judgment on the Pleadings filed by Massachusetts Institute of Technology. (Braceras, Roberto) (Entered: 08/24/2018)
150 ELECTRONIC NOTICE Setting Hearing on Defendant's 148 MOTION for Judgment on the Pleadings ISSUED: After conferring with counsel, a Motion Hearing is set for 11/8/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 24 of 29

09/11/2018 09/24/2018
10/12/2018 10/30/2018
10/30/2018 11/05/2018 11/15/2018
11/15/2018 03/28/2019 04/15/2019 04/15/2019

A. Robertson. (Calderon, Melissa) (Entered: 09/10/2018)
151 ELECTRONIC NOTICE Resetting Hearing on Defendant's 148 MOTION for Judgment on the Pleadings ISSUED: After conferring with counsel, the Motion Hearing is reset to 10/30/2018 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Calderon, Melissa) (Entered: 09/11/2018)
152 Opposition re 148 MOTION for Judgment on the Pleadings PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS filed by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Attachments: # 1 DECLARATION OF AMY F. ROBERTSON IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS with Exhibit)(Mayerson, Arlene) (Entered: 09/24/2018)
153 REPLY to Response to 148 MOTION for Judgment on the Pleadings filed by Massachusetts Institute of Technology. (Braceras, Roberto) (Entered: 10/12/2018)
154 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Motion Hearing held on 10/30/2018 re Defendants' MOTION for Judgment on the Pleadings (140 in 3:15−cv−30023−KAR) and Defendants' MOTION for Judgment on the Pleadings (148 in 3:15−cv−30024−KAR). Attorneys Present: Joseph M. Sellers, Arlene B. Mayerson, Thomas P. Murphy, Andrew Kim, Roberto M. Braceras and William M. Jay. Arguments heard. This matter is taken under advisement. Order to issue. (Court Reporter: Kathleen Silva at kathysilva@verizon.net.) (ASL Interpreter: Jane Hecker−Cain & CART Reporter: Jonathan Young. Associated Cases: 3:15−cv−30023−KAR & 3:15−cv−30024−KAR. (Calderon, Melissa) (Entered: 11/03/2018)
156 Motions Taken Under Advisement: Defendants' MOTION for Judgment on the Pleadings (140 in 3:15−cv−30023−KAR) and Defendants' MOTION for Judgment on the Pleadings (148 in 3:15−cv−30024−KAR). Associated Cases: 3:15−cv−30023−KAR, 3:15−cv−30024−KAR (Calderon, Melissa) (Entered: 11/07/2018)
155 Magistrate Judge Katherine A. Robertson: ORDER entered. STIPULATED PROTECTIVE ORDER. See attached order for complete details. (Calderon, Melissa) (Entered: 11/05/2018)
157 Transcript of Motion Hearing held on October 30, 2018, before Magistrate Judge Katherine A. Robertson. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kathleen Silva at kathysilva@verizon.net Redaction Request due 12/6/2018. Redacted Transcript Deadline set for 12/17/2018. Release of Transcript Restriction set for 2/13/2019. Associated Cases: 3:15−cv−30024−KAR, 3:15−cv−30023−KAR(Scalfani, Deborah) (Entered: 11/15/2018)
158 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm Associated Cases: 3:15−cv−30024−KAR, 3:15−cv−30023−KAR(Scalfani, Deborah) (Entered: 11/15/2018)
159 Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER Regarding Defendant's MOTION for Judgment on the Pleadings. For the foregoing reasons, the court DENIES in part and GRANTS in part MIT's Motion. See attached Memo & Order for complete details. (Calderon, Melissa) (Entered: 03/28/2019)
160 MOTION to Withdraw as Attorney by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith.(Jackson, Caroline) (Entered: 04/15/2019)
161 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 160 Motion to Withdraw as Attorney. Attorney Caroline Jackson terminated as

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 25 of 29

05/10/2019 05/10/2019 05/31/2019 06/03/2019
06/03/2019 07/29/2019 07/30/2019
07/30/2019 08/23/2019 08/23/2019
08/23/2019
08/23/2019 08/27/2019 08/28/2019

counsel for the Plaintiffs'. (Finn, Mary) (Entered: 04/15/2019)
162 Joint MOTION to Stay Proceedings by Massachusetts Institute of Technology.(Braceras, Roberto) (Entered: 05/10/2019)
163 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties' Joint 162 Motion to Stay Proceedings/Case until 5/31/2019. (Finn, Mary) (Entered: 05/10/2019)
164 Joint MOTION for Extension of Time to July 31, 2019 to Stay the Litigation by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Sellers, Joseph) (Entered: 05/31/2019)
165 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties' Joint 164 Motion to Extend the Stay through 7/31/2019 Counsel are to file a Joint Status Report to be filed by close of business on 7/29/2019. (Finn, Mary) (Entered: 06/03/2019)
166 Set/Reset Deadlines: Parties Status Report due by 7/29/2019. (Finn, Mary) (Entered: 06/03/2019)
167 STATUS REPORT (Joint) by Massachusetts Institute of Technology. (Braceras, Roberto) (Entered: 07/29/2019)
168 Magistrate Judge Katherine A. Robertson: ELECTRONIC ENDORSEMENT re 167 Status Report filed by Massachusetts Institute of Technology. The STAY of the Case is extended through 9/30/2019 for purposes of Further Settlement Negotiations. A Status Conference will be held on 9/30/2019 at 11:00 A.M. (Finn, Mary) Modified on 7/30/2019 to correct the STAY date from 9/20/2019 to the correct 9/30/2019. (Finn, Mary). (Entered: 07/30/2019)
169 Set/Reset Hearings: Status Conference set for 9/30/2019 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Finn, Mary) (Entered: 07/30/2019)
170 Joint MOTION for Order Referring Case to Mediation by Massachusetts Institute of Technology.(Braceras, Roberto) (Entered: 08/23/2019)
171 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered. ORDER REFERRING CASE to Alternative Dispute Resolution to Magistrate Judge Judith Dein.Associated Cases: 3:15−cv−30023−KAR, 3:15−cv−30024−KAR(Finn, Mary) (Entered: 08/23/2019)
172 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties' Joint 170 Motion to Refer the Case for Mediations to Magistrate Judith Dein, to Extend the Stay of the Case and Continue the 9/30/2019 Status Conference. Case is STAYED through 11/29/2019. The 9/30/2019 Status Conference is continued to 12/5/2019 at 11:00 A.M. (Finn, Mary) (Entered: 08/23/2019)
173 Set/Reset Hearings: Case STAYED through 11/29/2019. Status Conference reset for 12/5/2019 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Finn, Mary) (Entered: 08/23/2019)
174 Notice of assignment to ADR Provider. Judge Judith G. Dein appointed.(Belpedio, Lisa) (Entered: 08/27/2019)
175 ELECTRONIC NOTICE OF AND ORDER REGARDING ADR CONFERENCE: By agreement of counsel, mediation before Magistrate Judge Dein set for Monday, October 7, 2019, at 10:30AM in Courtroom #15 on the 5th Floor in BOSTON. Counsel are directed to be present with their clients or representatives thereof with full settlement authority. No later than three business days before the conference, each party shall submit (by mail or hand delivery addressed to Judge Dein, or by email to Jolyne_Dambrosio@mad.uscourts.gov) a brief memorandum marked "Confidential − Not for Docketing" addressing the party's position on the merits of the case and on settlement. If you use a standard form settlement agreement, please bring a copy with you. If you believe the case is not ripe for mediation at this time, please notify opposing counsel and the court as soon as possible. (Dambrosio, Jolyne) (Entered: 08/28/2019)

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 26 of 29

10/02/2019 10/07/2019
11/26/2019 11/26/2019 12/05/2019

176 NOTICE of Appearance by Tatum A. Pritchard on behalf of C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith (Pritchard, Tatum) (Entered: 10/02/2019)
178 REPORT of Alternative Dispute Resolution Provider ELECTRONIC REPORT OF ADR PROVIDER. Magistrate Judge Dein: On October 07, 2019, I conducted a mediation in this case. All parties were represented by counsel, and were present in person, by telephone or by authorized corporate officer. Progress was made, and the parties are to report back to the court at which time a further session will be scheduled if appropriate. (Quinn, Thomas) (Entered: 10/08/2019)
179 Joint MOTION for Hearing by Telephone by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Entered: 11/26/2019)
180 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties' Joint 179 Motion for Certain Counsel to Appear at the 12/5/2019 Conference by Telephone. Telephone call in information e−mailed to counsel this date. (Finn, Mary) (Entered: 11/26/2019)
182 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference and Motion Hearing held on 12/5/2019 re Assented to MOTION to Certify Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement (in 3:15−cv−30023−KAR). Attorneys Present: Thomas P. Murphy and Roberto M. Braceras. Attorneys Present (by telephone): Amy F. Robertson, Joseph M. Sellers, Shaylyn Cochran, Tatum A. Pritchard and Janet Grumer. Colloquy re: status of 15−cv−30024−KAR. The parties are very close to finding a resolution and asked for 45 days. The parties were heard on the pending motion in 15−cv−30023−KAR. Memorandum and Order issued. (See Dkt. No. 202 ). The Court set the following deadlines:

&nbsp a. Plaintiffs will issue the Notice to the Class by December 16, 2019;

&nbsp b. The deadline to submit Objections to the Settlement in accordance with the Instructions in the Notice is February 10, 2020;

&nbsp c. Responses to Objections will be submitted by February 17, 2020; and

&nbsp d. A Fairness Hearing is set for 2/25/2020 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson.

12/05/2019 12/11/2019 01/10/2020
01/10/2020 01/10/2020

(Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) Associated Cases: 3:15−cv−30023−KAR & 3:15−cv−30024−KAR. (Rivera, Melissa) (Entered: 12/12/2019)
183 Calculation of Forty−Five (45) Day Stay: 1/21/2020. (Rivera, Melissa) (Entered: 01/08/2020)
181 NOTICE of Change of Address or Firm Name by Amy F. Robertson (Robertson, Amy) (Entered: 12/11/2019)
184 MOTION for Leave to Appear Pro Hac Vice for admission of Carly A. Myers Filing fee: $ 100, receipt number 0101−8048344 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) Modified on 1/10/2020 to reopen the motion due to the Pltfs. filing their 186 certificate of consultation stating the Defts. assent to this Motion. (Finn, Mary). (Entered: 01/10/2020)
185 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered denying without prejudice to refiling, the Plaintiffs' 184 Motion for Leave to Appear Pro Hac Vice, for failure to certify compliance with Local Rule 7.1(a)(2). (Finn, Mary) (Entered: 01/10/2020)
186 CERTIFICATE OF CONSULTATION pursuant to LR 7.1 re 184 MOTION for Leave to Appear Pro Hac Vice for admission of Carly A. Myers Filing fee: $ 100, receipt number 0101−8048344 by Thomas P. Murphy on behalf of C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Murphy, Thomas) (Entered:

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 27 of 29

01/10/2020
01/10/2020 01/17/2020
01/21/2020 01/22/2020 02/04/2020
02/18/2020 02/18/2020 02/19/2020
02/19/2020 02/19/2020 02/19/2020

01/10/2020)
187 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 184 Motion for Leave to Appear Pro Hac Vice Added Carly A. Myers. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. . (Finn, Mary) (Entered: 01/10/2020)
188 NOTICE of Withdrawal of Appearance by Namita Gupta (Gupta, Namita) (Entered: 01/10/2020)
189 ELECTRONIC NOTICE OF CONTINUED ADR CONFERENCE. By agreement of the parties, continued mediation before Magistrate Judge Dein set for Tuesday, February 4, 2020, at 10:00AM in Courtroom #15 on the 5th Floor. Counsel are directed to be present with their clients or representatives thereof with full settlement authority. Any updated or supplemental memorandum should be submitted (by mail or hand delivery addressed to Judge Dein, or by email to Clarilde_Karasek@mad.uscourts.gov) no later than three business days before the mediation and should be marked "Confidential − Not for Docketing (Dambrosio, Jolyne) (Entered: 01/17/2020)
190 Joint MOTION for Extension of Time to March 17, 2020 to Stay Proceedings by Massachusetts Institute of Technology.(Braceras, Roberto) (Entered: 01/21/2020)
191 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties' Joint 190 Motion to extend the present stay to 3/17/2020. A Status Conference is set for 3/17/2020 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Finn, Mary) (Entered: 01/22/2020)
193 INTERIM ELECTRONIC REPORT OF ADR PROVIDER. Magistrate Judge Dein: On February 4, 2020, I conducted a mediation in this case. All parties were represented by counsel, and were present in person, by telephone or by authorized corporate officer. Progress was made, and the parties are to report back to the court at which time a further session will be scheduled if appropriate. (Geraldino−Karasek, Clarilde) (Entered: 02/05/2020)
194 Assented to MOTION to Certify Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Sellers, Joseph) (Entered: 02/18/2020)
195 MEMORANDUM in Support re 194 Assented to MOTION to Certify Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement filed by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Sellers, Joseph) (Entered: 02/18/2020)
196 Set/Reset Deadlines as to 194 Assented to MOTION to Certify Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement. NOTE TO COUNSEL: The 3/17/2020 STATUS CONFERENCE HAS BEEN CONVERTED INTO A MOTION HEARING ON THE PLAINTIFFS' ASSENTED TO MOTION TO CERTIFY CLASS − Doc. 194 . Motion Hearing set for 3/17/2020 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Finn, Mary) (Entered: 02/19/2020)
197 ELECTRONIC NOTICE Canceling Hearing. The 3/17/2020 Status Conference has been CONVERTED into a Motion Hearing on the Plaintiffs' Assented to Motion to Certify Class for Settlement purposed. (Finn, Mary) (Entered: 02/19/2020)
198 MOTION to Withdraw as Attorney by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith.(Parton, Caitlin) (Entered: 02/19/2020)
199 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Plaintiffs' 198 Motion for Caitlin H. Parton to Withdraw as Attorney. Attorney Caitlin H. Parton terminated as counsel for the Plaintiffs. (Finn, Mary) (Entered: 02/19/2020)

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 28 of 29

02/19/2020 03/12/2020 03/12/2020 03/16/2020 03/16/2020 03/17/2020
03/18/2020 03/18/2020 03/19/2020 03/27/2020

200 FINAL ELECTRONIC REPORT OF ADR PROVIDER. Magistrate Judge Dein: I conducted a mediation in this case on 10/7/2019 and 2/4/20. All parties were represented by counsel, and were present in person, by telephone or by authorized representative. The case was settled. (Geraldino−Karasek, Clarilde) (Entered: 02/19/2020)
201 Joint MOTION for Certain Counsel to Appear at 3/17/2020 Settlement Approval Hearing by Telephone (Preliminary Approval Hearing 3/17/20) by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) Modified on 3/12/2020 to correct the relief type of the Motion to Motion Miscellaneous Relief. (Finn, Mary). (Entered: 03/12/2020)
202 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties' Joint 201 Motion for certain counsel to appear at the 3/17/2020 settlement approval hearing by telephone. Telephone call in information e−mailed to counsel this date. (Finn, Mary) (Entered: 03/12/2020)
203 ELECTRONIC NOTICE OF RESCHEDULING ISSUED: The Motion Hearing currently set for 3/17/2020 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson is converted into a TELEPHONE CONFERENCE. The clerk shall inform counsel of the procedures to follow in order to participate by telephone. (Rivera, Melissa) (Entered: 03/16/2020)
204 Remark: Telephone conference information sent to counsel by email. (Rivera, Melissa) (Entered: 03/16/2020)
205 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Telephone Conference re Plaintiff's Assented−to 194 MOTION to Certify the Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement held on 3/17/2020. Attorneys Present: Amy F. Robertson, Carly A. Myers, Joseph M. Sellers, Shaylyn Cochran, Thomas P. Murphy, Janet Grumer, Roberto M. Braceras and William M. Jay. Colloquy re: status of the case and the pending motion. The motion was allowed for the reasons stated. Order to issue. The parties are to confer and come up with a schedule regarding proposed deadlines. A Fairness Hearing is set for 7/14/2020 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Rivera, Melissa) (Entered: 03/17/2020)
206 MOTION for Leave to Appear Pro Hac Vice for admission of Howard A. Rosenblum Filing fee: $ 100, receipt number 0101−8160639 by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith.(Murphy, Thomas) (Main Document 206 replaced on 3/18/2020) (Finn, Mary). (Additional attachment(s) added on 3/18/2020: # 1 Exhibit A − Certificate of Howard A. Rosenblum) (Finn, Mary). Modified on 3/18/2020 to separate Exhibit A from the main document and to add it as an attachment. (Finn, Mary). (Entered: 03/18/2020)
207 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Plaintiffs' Assented to 206 Motion for Leave to Appear Pro Hac Vice. Added Howard A. Rosenblum.. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. . (Finn, Mary) (Entered: 03/18/2020)
208 NOTICE by C. Wayne Dore, National Association of the Deaf, Lee Nettles, Christy Smith re 194 Assented to MOTION to Certify Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement (Cochran, Shaylyn) (Entered: 03/19/2020)
209 Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER Regarding Plaintiff's Assented−to MOTION to Certify the Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement. As set forth, the court holds as follows:

Case: 3:15-cv-30024 As of: 05/24/2020 11:42 AM EDT 29 of 29

1.&nbsp The following class is certified for settlement purposes:

All persons (other than students of the Massachusetts Institute of Technology) who, at any time between February 11, 2012 and the date of preliminary approval of this settlement, have claimed or could have claimed to assert a right under Title III of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and/or other federal, state or local statutes or regulations that set forth standards or obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder, alleging that they are deaf or hard of hearing and that Harvard has failed to make accessible to persons who are deaf or hard of hearing online content posted and available for the general public that is produced, created, hosted, linked to, or embedded by MIT.

2.&nbsp The court appoints named plaintiffs C. Wayne Dore, Christy Smith, and Lee Nettles as class representatives.

3.&nbsp The court appoints the following lawyers as class counsel: Joseph Sellers and Shaylyn Cochran of Cohen Milstein Sellers & Toll PLLC; Thomas P. Murphy and Tatum A. Pritchard of the Disability Law Center, Inc.; Amy Farr Robertson of the Civil Rights Education and Enforcement Center; Arlene Mayerson and Carly A. Myers of the Disability Rights Education and Defense Fund, Inc.; and Howard Rosenblum of the National Association of the Deaf.

4.&nbsp The proposed Consent Decree is preliminarily approved.

5.&nbsp The proposed notice and the jointly proposed plan for dissemination of the proposed notice is approved.

6.&nbsp The court sets the following deadlines, noting that these deadlines are subject to adjustment by agreement of counsel in view of the COVID−19 pandemic and its impact on the parties and their staffs:

&nbsp a.&nbsp Plaintiffs will issue the notice to the class by April 7, 2020;

&nbsp b.&nbsp The deadline to submit objections to the settlement in accordance with the instructions in the notice is May 19, 2020;

&nbsp c.&nbsp Responses to objections will be submitted by May 26, 2020; and

&nbsp d.&nbsp A fairness hearing will be held on July 14, 2020 at 11:00 a.m.

It is so ordered.

05/05/2020 05/22/2020

See attached Memo & Order for complete details. (Rivera, Melissa) (Entered: 03/27/2020)
210 MOTION for Attorney Fees and Costs by C. Wayne Dore, National Association of the Deaf, Diane Nettles, Lee Nettles, Christy Smith. (Attachments: # 1 Exhibit Dec of T. Fox, # 2 Exhibit Dec of B. Lee, # 3 Exhibit Dec of T. Murphy, # 4 Exhibit Dec of J. Sellers, # 5 Exhibit Dec A. Mayerson)(Sellers, Joseph) (Entered: 05/05/2020)
211 Objection filed pursuant to 209 Memorandum & ORDER by Edward W Orr. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M1, # 14 Exhibit M2, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W)(Zamorski, Michael) (Entered: 05/22/2020)


[CONTENT] February 12, 2015 | the National Association of the Deaf (NAD | three | the U.S. District Court | Massachusetts ||| Section 504 | the Rehabilitation Act | Americans | Massachusetts Institute of Technology | MIT ||| the Disability Law Center | Enforcement Center, Disability Rights Education | Defense Fund | the National Association of the Deaf Law | Advocacy Center ||| MIT ||| MIT | the Rehabilitation Act | Americans ||| MIT | MIT ||| 2010 | the U.S. Department of Justice | the U.S. Department of Education | 504 | ADA ||| The following year | the Department of Education | FAQ ||| MIT ||| NAD | MIT ||| February 12, 2015 | MIT | May 11, 2015 ||| MIT | the U.S. Department of Justice |||  ||| September 10, 2015 | Magistrate | Katherine A. Robertson ||| February 9, 2016 | Robertson | NAD | Harvard University ||| Harvard University</a ||| Mark Mastroianni | Robertson | November 4, 2016 ||| May 10, 2017 ||| several months | July 23, 2018 ||| August 24, 2018 | MIT ||| March 28, 2019 | Katherine A. Robertson | Harvard | MIT | the Communications Decency Act | 477 | 230 | third | MIT ||| Robertson | August 23, 2019 ||| Robertson | March 27, 2020 | 2020 WL 1495903 | D. | Mass. ||| MIT |||  |||  [SUMMARY] On February 12, 2015, the National Association of the Deaf (NAD), on behalf of its members (including three named in the complaint) and a proposed class, filed this lawsuit in the U.S. District Court for the District of Massachusetts.  Under Section 504 of the Rehabilitation Act and Title III of the Americans with Disabilities Act, the plaintiffs sued Massachusetts Institute of Technology (MIT). The plaintiffs were represented by attorneys from the Disability Law Center, Civil Rights Education and Enforcement Center, Disability Rights Education and Defense Fund, the National Association of the Deaf Law and Advocacy Center, and private counsel. The plaintiffs sought a permanent injunction that would require MIT to provide accurate captioning on its online content. The plaintiffs claimed that MIT willfully violated the Rehabilitation Act and Americans with Disabilities Act by not providing captioned video and audio content on its platforms and therefore excluded deaf and hard of hearing individuals from benefiting from said content. 

The plaintiffs alleged that based on information and belief, MIT did not have administrative procedures or policies in place to ensure that its online content had accurate captioning, whether or not that content had been created or produced by MIT itself. This issue extended back to 2010, when the U.S. Department of Justice and the U.S. Department of Education issued a joint letter to university colleges and presidents to make clear that the requirements of § 504 and ADA include technological devices when used by places of public accommodation. The following year, the Department of Education released an FAQ explaining that letter, indicating that its contents were predicated on legal precedents and that the letter would apply to all forms of emerging technology, including online content. Additionally, MIT has stated on its website how important captioning is to deaf and hard of hearing individuals. Despite all this and repeated requests from the NAD, MIT has yet to accurately caption much of its online content. 

After the initial filing of the complaint on February 12, 2015, MIT filed a motion to dismiss on May 11, 2015, citing issues of jurisdiction and a failure to state a cause of action. There were a number of responses on MIT's motion, including the filing of an Amicus Brief by a representative from the U.S. Department of Justice. While not directly involved in the case, the DOJ was an interested party and appeared to agree with the plaintiffs on this issue. On September 10, 2015, there was a hearing on the motion to dismiss held before the Magistrate Judge Katherine A. Robertson. On February 9, 2016, Judge Robertson issued a report and recommended that the motion be denied in its entirety, for reasons identical to those in the related case the NAD filed at the same time against Harvard University. <a href="https://www.clearinghouse.net/detail.php?id=14352">National Association of the Deaf v. Harvard University</a>. Judge Mark Mastroianni adopted Judge Robertson’s reasoning and denied the motion to dismiss on November 4, 2016. On May 10, 2017, the parties agreed to try to settle the dispute using a private mediator. The parties met with a mediator over the course of several months but were ultimately unable to reach an agreement, and initial pretrial deadlines were set on July 23, 2018.

On August 24, 2018, MIT filed a motion for judgment on the pleadings to all claims. On March 28, 2019, Judge Katherine A. Robertson denied the motion in part, but granted it in part, for the same reasons under which a similar motion was granted in part in the lawsuit involving Harvard; MIT was entitled to immunity under the Communications Decency Act of 1996 (477 U.S.C. §230) when publishing third-party's content, but not content created in whole or in part by MIT or by someone associated with it. 

Judge Robertson referred the case to mediation on August 23, 2019. After several rounds of mediation, the parties reached a consent decree, and Judge Robertson granted preliminary approval of the decree on March 27, 2020 (2020 WL 1495903, D. Mass.). The plaintiffs only sought injunctive relief to make MIT's online content in line with national standards for disability accessibility.

The parties are notifying members of the class. Final approval of the settlement agreement is pending.