IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, ANITA HANSEN, ROBERT SIROWITZ, JOSHUA STAPEN, ROBIN STEPHENS, and BENJAMIN HERNANDEZ
Plaintiffs, v. ABERCROMBIE & FITCH CO., ABERCROMBIE & FITCH STORES, INC., and J.M. HOLLISTER LLC, d/b/a HOLLISTER CO.
Defendants.
SECOND AMENDED ORDER
I. INTRODUCTION THIS MATTER is before the Court on Defendants’ Renewed Motion to Dismiss
for Lack of Standing filed September 20, 2010 [ECF No. 76]. Defendants move to dismiss this case for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). A response in opposition to the motion was filed on October 25, 2010, and a reply brief was filed on November 5, 2010. Defendants also filed supplemental authority on December 3, 2010, and Plaintiffs filed a response to the supplemental authority on December 8, 2010. For the reasons stated below, the motion to dismiss is denied.
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II. BACKGROUND Plaintiffs Anita Hansen, Robert Sirowitz, Joshua Stapen, Robin Stephens, and
Benjamin Hernandez are all wheelchair users and members of the Colorado CrossDisability Coalition (“CCDC”). Am. Compl. ¶ 9. CCDC “is a Colorado non-profit corporation whose members are persons with disabilities and their non-disabled allies.” Id. at ¶ 14. Plaintiffs, on behalf of themselves and all others similarly situated, allege that they have encountered accessibility barriers at Defendants’ Hollister clothing stores. Id. at ¶¶ 15-19, 60-62, 89, 109, 117, 140, 156, 170, 182-83. Specifically, Plaintiffs claim that Defendants discriminate against customers in wheelchairs in violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Colorado Civil Rights Act, Colo. Rev. Stat. § 24-34-601 et seq., by: (1) designing stores with separate, segregated entrances for individuals who use wheelchairs; (2) locking doors that are supposed to give individuals in wheelchairs store access; (3) constructing service counters that are too high to be used by individuals confined to wheelchairs; and (4) “arranging merchandise displays, furniture, plants, etc. in their stores that . . . block access to customers who use wheelchairs throughout the store.” Id. at ¶¶ 1, 8, 60-193
Based on these alleged violations, Plaintiffs seek prospective injunctive relief requiring “Defendants to comply with the ADA with respect to all Hollister Co. stores nationwide and all Abercrombie & Fitch and Abercrombie stores in Colorado.” Id. at 33. In addition, Plaintiffs seek the certification of a Rule 23 class consisting of “all people with disabilities who use wheelchairs for mobility who, during the two years prior to the filing of the complaint . . ., were denied the full and equal enjoyment of the goods,
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services, facilities, privileges, advantages, or accommodations of any Hollister Co. store in the United States on the basis of disability.” Id. at ¶ 47.
In the pending motion to dismiss, Defendants assert that the individual named Plaintiffs do not have standing to seek nationwide injunctive relief, but rather are limited to seeking relief vis-à-vis the store locations for which they intend to return. Defendants further assert that CCDC lacks organizational standing to bring an ADA claim on behalf of its members, first, because CCDC has failed to identify any members who would be able to bring an action on their own behalf (other than those who are already named parties to the complaint), and second, because the participation of unnamed CCDC members would be required in the suit. III. ANALYSIS
A. Standard Motions to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) can come in the form of either a facial attack to the allegations of the complaint or a factual attack. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). With a facial attack, as here, the Court must look to the factual allegations of the Complaint, see Groundhog v. Keller, 442 F.2d 674, 677 (10th Cir. 1971), accepting Plaintiffs’ allegations of material fact as true. Riggs v. Albuquerque, 916 F.2d 582, 584 (10th Cir. 1990). In addition, where the district court dismisses an action for lack of jurisdiction, the dismissal must be without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (citing Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d 1242, 1249 (10th Cir.2004); Martinez v. Richardson, 472 F.2d 1121, 1126 (10th Cir.1973) (“It is fundamental . . . that a dismissal for lack of jurisdiction is not an
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adjudication of the merits and therefore . . . must be without prejudice.”). In regard to standing, the Supreme Court has developed a three-part test. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “First, the plaintiff must have suffered an ‘injury in fact’ -- an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical. . . .’” Id. at 560 (citations omitted). “Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.’” Id. (citations omitted). “Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id. at 561 (citations omitted). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Id.
“Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’” Id. (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)).
B. ADA Claim In their motion to dismiss, Defendants argue that neither the individual Plaintiffs nor CCDC have standing to assert a claim for nationwide injunctive relief. Def.’s Mem.
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in Supp. of Renewed Mot. to Dismiss for Lack of Standing, ECF No. 76, at 1. I will first address whether the individual named Plaintiffs have standing to proceed in this action.
1. Individual Named Plaintiffs Defendants claim that Plaintiffs do not have standing to seek injunctive relief under the ADA “unless they have alleged, inter alia, that they intend to return to stores owned by defendants that have inaccessible conditions and thus face an imminent threat of future injury.” Id. at 3-4. Further, Defendants argue that the individual named plaintiffs do not have standing to assert a claim against all Hollister stores nationwide because “they face no immediate threat of harm as to stores they have never patronized and do not intend to patronize in the future.” Id. at 2, 4. I address both issues below. “[A] plaintiff seeking injunctive relief premised upon an alleged past wrong must demonstrate a ‘real and immediate threat’ of repeated future harm to satisfy the injury in fact prong of the standing test.” Aikins v. St. Helena Hosp., 843 F. Supp. 1329, 1333 (N.D. Cal. 1994) (quoting City of L.A. v. Lyons, 461 U.S. 95, 105 (1983)). In order to demonstrate a ‘real and immediate’ threat of future injury in an ADA claim, a plaintiff need only show that he has visited a public accommodation on a prior occasion, suffered an injury on account of accessibility barriers, and is currently deterred from visiting that accommodation on account of those barriers. Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1041 (9th Cir. 2008); see Friends of the Earth, Inc. v. Laidlaw Envtl. Services, Inc., 528 U.S. 167, 184 (2000) (Plaintiffs claim that they would “use the nearby North Tyger River for recreation if [the defendants] were not discharging pollutants into it” was sufficient to demonstrate injury in fact.).
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Here, the individual named Plaintiffs have satisfied the “real and immediate threat” requirement. The named Plaintiffs have alleged that they will return to Defendants’ stores if the ADA violations are remedied. Am. Compl. ¶¶ 60, 111, 115, 134, 148-49, 153, 165, 191-92. In the meantime, the named Plaintiffs “[w]ill continue to be deterred and discouraged from going to Defendant’s Hollister stores,” Id. at ¶¶113, 151, 167, but will return periodically to test whether the accessibility barriers still exist. Id. at ¶¶112, 137, 150, 166, 193. Thus, to the extent that Defendants argue that Plaintiffs have not alleged a future injury, the motion is denied.
Defendants also assert that the individual Plaintiffs “have no standing to obtain injunctive relief with respect to any specific store unless they allege that they encountered inaccessible conditions at that store and intend to return to that store.” Def.’s Mem. in Supp. of Renewed Mot. to Dismiss for Lack of Standing, ECF No. 76, at 12 (emphasis in original). In response, the individual Plaintiffs contend that they may seek nationwide injunctive relief because the access barriers alleged in this case result from common policies and designs. In support of this assertion, Plaintiffs rely on the reasoning set forth in Castaneda v. Burger King Corp., 597 F. Supp. 2d 1035 (N.D. Cal. 2009). In Castaneda, the plaintiff alleged violations of the ADA at a subset of Burger King restaurants in California. While the plaintiff had only visited two of these restaurants, he brought an action on behalf of a putative class including all individuals who used wheelchairs and were discriminated against at each of the restaurants within the subset, seeking injunctive relief vis-à-vis all ninety restaurants. Id. at 1038-39. The Castaneda Court held that, “[T]he ADA proscribes not only discrimination resulting from a particular physical barrier at a specific location but rather discriminatory practices –
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‘policies, practices, or procedures’ that affect public accommodations . . . .” Id. at 1042. Consequently, “[T]he specific injury under the ADA is not a specific barrier at a specific site but instead the discriminatory policy or design or decision. If an offending policy or design gave rise to more than one violation, then reversing the policy should eliminate more than one barrier.” Id. at 1043.
Defendants note that in a later decision addressing whether class certification requirements were met, “[T]he Castaneda Court . . . held that a separate certified class would be necessary for the claims asserted against each separate [Burger King] store.” Def.’s Reply Mem. in Supp. of Renewed Mot. to Dismiss for Lack of Standing, ECF No. 82, at 7. The Castaneda court did not, however, conclude that injunctive relief affecting a nationwide chain of stores would not be possible when there was a common architectural plan or policy violative of the ADA; rather when the court considered whether class certification was appropriate it found that, “[b]ecause each location has unique facilities, there is neither a common core of salient facts regarding what accessibility barriers each restaurant’s patrons face nor a shared predicate legal issue of whether each restaurant's facilities violates the ADA or California statutes.” Castaneda v. Burger king Corp., 264 F.R.D. 557, 566 (N.D. Calif. 2009).
Here, Plaintiffs claim that Defendants’ Hollister stores nationwide share a uniform architectural design that violates the ADA’s accessibility requirements. Am. Compl. ¶¶ 11, 26, 32-35, 37. Plaintiffs also contend that Defendants utilize a uniform policy of merchandising and/or floor plans for their Hollister stores nationwide. Id. at ¶ 4 (“According to [Defendants’] March 2009 form 10-K submitted to the federal Securities and Exchange Commission . . . ‘Every brand displays merchandise uniformly to ensure
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a consistent store experience, regardless of location. Store managers receive detailed plans designating fixture and merchandise placement to ensure coordinated execution of the Company-wide merchandising strategy.’”). I find the reasoning in Castaneda, supra, to be persuasive in this case. Plaintiffs have alleged that Defendants’ ADA violations are the result of a uniform policy and design creating common barriers among Defendants’ stores nationwide. At this stage of the litigation I must accept Plaintiffs factual allegations as true. Therefore, I find the individual named Plaintiffs have standing to bring a claim requesting nationwide injunctive relief.
2. CCDC I now turn to the Defendants’ assertion that CCDC lacks associational standing. “[A]n association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy. . . . [or,] in the absence of injury to itself, an association may have standing solely as the representative of its members.” Warth v. Seldin, 422 U.S. 490, 511 (1975). Here, in response to the motion to dismiss, CCDC contends that it only asserts a claim on behalf of its members, so I need not consider whether the organization would be able to assert standing on its own behalf. Pl.’s Resp. to Def.’ Renewed Mot. to Dismiss for Lack of Standing, ECF No. 81, at 9 n.6. The Supreme Court reified the rule governing the standing of associational plaintiffs in Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977):
[W]e have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted
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nor the relief requested requires the participation of individual members in the lawsuit.

Since Defendants do not challenge the second prong of the test, I will address

only the first and third prongs of the associational standing test.

i.

Whether CCDC Members Would Otherwise Have Standing

Defendants claim that in order for CCDC’s members to have associational

standing it must first identify “unnamed” members who would have standing in their own

right. Def.’s Mem. in Supp. of Renewed Mot. to Dismiss for Lack of Standing, ECF No.

76, at 10. As noted above, Hunt requires an organization to identify members who

would be able to assert standing on their own behalf, but the Hunt Court never stated

that these members could not also be individual named plaintiffs in the suit. Hunt, 432

U.S. at 343. The Tenth Circuit clarified this issue in Roe No. 2 v. Ogden, 253 F.3d 1225

(10th Cir. 2002), holding that the first prong of the Hunt test was satisfied when the

single named plaintiff was a member of the associational plaintiff’s organization.

Ogden, 253 F.3d at 1230 (citing Warth, 422 U.S. at 511). Here, there are five named

plaintiffs who are each members of CCDC and, as set forth above, each of the

individual named Plaintiffs have standing to bring a claim requesting nationwide

injunctive relief. Thus the first prong of the Hunt test has been satisfied.

In addition, I find that Defendants reliance on Equal Rights Ctr. v. Hilton Hotels

Corp., No. 07-1528, 2009 WL 6067336 (D.D.C. March 25, 2009), is misplaced. In that

case, the district court rejected an organization’s attempt to establishing standing on

behalf of its members because it neglected to list who the effected members were,

which hotels they had visited, what accessibility barriers they encountered at those

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hotels, and whether they planned to return. Def.’s Renewed Mot. to Dismiss for Lack of Standing, ECF No. 76, at 11. Hilton is not binding authority and, moreover, this case is distinguishable from Hilton in two important respects: First, CCDC has identified five of its members who have encountered accessability barriers at Defendants’ stores, noting the specific locations of those stores, the type of accessibility barriers encountered, and the intention of the members to return to the stores in the future. Second, unlike Hilton, the Plaintiffs in this case have alleged a uniform store design that has created accessibility barriers at all of Defendants’ store locations.
ii. Whether Participation of CCDC Members is Required Finally, Defendants argue that CCDC cannot satisfy the third prong of the Hunt test because “CCDC cannot possibly prove that defendants’ alleged violations of the ADA caused injury to its unnamed members unless they testify.” Def.’s Mem. in Supp. of Renewed Mot. to Dismiss for Lack of Standing, ECF No. 76, at 11. As a general rule, “[A]n association may assert a claim that requires participation by some members.” Hosp. Council of W. Pa. v. City of Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1991). The Supreme Court clarified the scope of this requirement in Warth: “[S]o long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members . . . .” 422 U.S. at 511 (emphasis added). As the Seventh Circuit observed, “We can discern no indication in Warth . . . [or] Hunt . . . that the Supreme Court intended to limit representational standing to cases in which it would not be necessary to take any evidence from individual members of an association. . . . Rather, the third prong of Hunt is more
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plausibly read as dealing with situations in which it is necessary to establish ‘individualized proof’ . . . for litigants not before the court in order to support the cause of action.” Retired Chi. Police Ass’n v. City of Chi., 7 F.3d 584, 601-02 (7th Cir. 1993).
I note that in Kan. Health Care Ass'n, Inc. v. Kan. Dept. of Soc. and Rehab. Services, 958 F.2d 1018 (10th Cir. 1992), the Tenth Circuit determined that two organizations representing nursing homes lacked standing to challenge state laws regulating Medicaid reimbursement schedules because the suit would “unavoidably require individual participation of their members.” Id. at 1023. In that case, however, the Court distinguished between claims that could be adjudicated with “a cursory review” by the Court or “with minimal participation from individual [plaintiffs]” from those requiring intensive analysis of the injuries sustained by individual members of the organization. See id. at 1022. Given the nature of the claims in that particular case, the Court found that it would have to “undertake a detailed evaluation of individual health care providers,” and this would not be compatible with the third prong of Hunt. Id. at 23.
Here, while some participation of CCDC members may be required in the course of this suit, there is no indication at this stage in the proceeding that individualized proof would be required. Moreover, the level of participation required in this case would fall well short of the individual participation required of the plaintiffs in Kansas Health Care Ass'n, supra, therefore I conclude that the third prong of the Hunt test has been satisfied.
For the reasons set forth above, Defendants’ motion to dismiss Plaintiffs’ ADA claim for lack of standing is denied.
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C. Colorado Civil Rights Act Claim Finally, having determined that Plaintiffs have standing to assert a federal ADA claim, I need not address Defendants’ request that I decline to exercise supplemental jurisdiction over Plaintiffs’ claim brought under the Colorado Civil Rights Act (Colo. Rev. Stat. § 24-34-601 et seq.). Thus, Defendants’ motion to dismiss Plaintiff’s state law claim is denied. IV. CONCLUSION Based upon the foregoing, it is ORDERED that Defendants’ Renewed Motion to Dismiss for Lack of Standing filed September 20, 2010 [ECF No. 76], is DENIED. Dated: June 2, 2011
BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge
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 Case 1:09-cv-02757-WYD-KMT Document 73 Filed 08/31/10 USDC Colorado Page 1 of 35
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No.09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, ANITA HANSEN, ROBERT SIROWITZ, JOSHUA STAPEN, ROBIN STEPHENS, and BENJAMIN HERNANDEZ,
Plaintiffs, on behalf of themselves and all others similarly situated, v. ABERCROMBIE & FITCH CO., ABERCROMBIE & FITCH STORES, INC, and J.M. HOLLISTER LLC, d/b/a HOLLISTER CO.
Defendants.
THIRD AMENDED AND CLASS ACTION COMPLAINT
Plaintiffs, Colorado Cross-Disability Coalition, Anita Hansen, Robert Sirowitz, Joshua Stapen, Robin Stephens, and Benjamin Hernandez, by and through undersigned counsel, hereby submit this Third Amended Class Action Complaint, for violations of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Colorado Civil Rights Act (“CCRA”), Colo. Rev. Stat. § 24-34-601 et seq.
INTRODUCTION 1. Almost twenty years after the passage of the ADA, Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc, J.M. Hollister LLC, d/b/a Hollister Co. (“Defendants”), all
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related companies and expanding clothing retailers with stores throughout the United States and beyond, discriminate against individuals who use wheelchairs for mobility. Defendants design, construct and operate stores that provide separate, segregated and unequal access and services to customers who use wheelchairs.
2. The federal ADA was enacted in 1990, “[t]o establish a clear and comprehensive prohibition of discrimination on the basis of disability.” The ADA prohibits public accommodations, like the stores Defendants own and operate, from providing individuals who use wheelchairs with separate or unequal benefits and services.
3. Colorado’s state law equivalent, the CCRA, has prohibited discrimination on the basis of disability since before the enactment of the ADA and also requires that individuals who use wheelchairs for mobility be provided with the “full and equal enjoyment” of Defendants’ goods, services, facilities, privileges and accommodations.
4. According to Abercrombie & Fitch Co.’s March 2009 form 10-K submitted to the federal Securities and Exchange Commission and available on its website:
The Company’s in-store marketing is designed to convey the principal elements and personality of each brand. The store design, furniture, fixtures and music are carefully planned and coordinated to create a shopping experience that reflects the Abercrombie & Fitch, abercrombie . . . [or] Hollister . . . lifestyle. . . .
Every brand displays merchandise uniformly to ensure a consistent store experience, regardless of location. Store managers receive detailed plans designating fixture and merchandise placement to ensure coordinated execution of the Company-wide merchandising strategy. 5. That “store experience” and “lifestyle” exclude people who use wheelchairs. Defendants’ “coordinated” store layouts are not accessible to individuals who use wheelchairs.
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6. Defendants created and designed all Hollister Co. stores, one of Defendants’ store brands, after the passage of and the effective date of the ADA. In newly designed and constructed stores or those that have been altered after the passage of the ADA, such stores must be “readily accessible to and usable by” individuals who use wheelchairs. Hollister Co. stores throughout the United States are not accessible to individuals who use wheelchairs.
7. Despite the ADA’s and the CCRA’s long existence, Defendants have designed, constructed and maintain Hollister Co. stores throughout the United States that deny individuals who use wheelchairs full and equal access to their stores.
8. Defendants discriminate against customers who use wheelchairs in ways that include, without limitation, the following:
a. Designing and constructing stairs at Hollister Co. stores’ main entrances throughout the United States and forcing individuals who use wheelchairs to enter at a different, separate and segregated location;
b. locking doors at Hollister Co. stores that are supposed to be accessible to individuals who use wheelchairs;
c. designing and constructing service counters in Hollister Co. stores throughout the United States that are too high for individuals in wheelchairs to use; and
d. arranging merchandise displays, furniture, plants, etc. in their stores that in Hollister Co. stores throughout the United States that block access to customers who use wheelchairs throughout the store.
9. Robert Sirowitz, Anita Hansen, Robin Stephens, Joshua Stapen and Benjamin
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Hernandez (“Individual Plaintiffs”), all use wheelchairs, and Colorado Cross-Disability Coalition (“CCDC”) is a disability rights advocacy organization that advocates for individuals who use wheelchairs. Each Individual Plaintiff is a member of CCDC. CCDC and the Individual Plaintiffs have been damaged by Defendants’ discrimination and seek a court order directing Defendants to comply with the ADA, monetary damages under the CCRA and recovery of their reasonable attorneys’ fees and costs.
10. Plaintiffs seek to send a clear message that segregated services and inaccessible public accommodations are no longer permitted under the law and can no longer be tolerated.
11. Because Defendants’ Hollister Co. stores are designed and constructed uniformly with respect to service counter and elevated entrance designs in ways that violate the ADA and CCRA, Plaintiffs seek to certify a class action pursuant to Fed. R. Civ. P. 23.
JURISDICTION 12. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and pursuant to its pendent jurisdiction over claims brought under the laws of the State of Colorado. 13. Venue is proper within this District pursuant to 28 U.S.C. § 1391.
PARTIES 14. Colorado Cross-Disability Coalition (“CCDC”) is a Colorado non-profit corporation whose members are persons with disabilities and their non-disabled allies. 15. Anita Hansen is substantially limited in the major life activity of walking and uses a motorized wheelchair for mobility. Anita Hansen is a CCDC member.
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16. Robert Sirowitz is substantially limited in the major life activity of walking and uses a motorized wheelchair for mobility. Robert Sirowitz is a CCDC member.
17. Joshua Stapen is substantially limited in the major life activity of walking and uses a manual wheelchair for mobility. Joshua Stapen is a CCDC member.
18. Robin Stephens is substantially limited in the major life activity of walking and uses a motorized wheelchair for mobility. Robin Stephens is a CCDC member.
19. Benjamin Hernandez is substantially limited in the major life activity of walking and uses a motorized wheelchair for mobility. Benjamin Hernandez is a CCDC member.
20. Defendant Abercrombie & Fitch Co. (“A&F Co.”) is a corporation, incorporated in Delaware in 1996. A&F Co. is a retailer that operates stores throughout the United States and websites selling casual sportswear apparel under Abercrombie & Fitch, abercrombie, Hollister and other brands. A&F Co.’s principal place of business located at 6301 Fitch Path, New Albany, OH 43054. On information and belief, A&F Co. is the parent company for the other defendants in this case, and each of these defendants operates stores throughout the United States.
21. Defendant Abercrombie & Fitch Stores, Inc. (“A&F Stores”) is a subsidiary of A&F Co. A&F Stores operates clothing stores throughout the United States. A&F Stores operates stores under the names “Abercrombie & Fitch” and “abercrombie.” A&F Stores is a corporation, with its principal place of business located at 6301 Fitch Path, New Albany, OH 43054. A&F Stores is the parent company for J.M. Hollister LLC, d/b/a Hollister Co. (“Hollister”).
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22. J.M. Hollister LLC, d/b/a Hollister Co. (“Hollister”) is a subsidiary of A&F Stores. Hollister operates clothing stores throughout the United States, including in Colorado. The stores in Colorado operate under the name “Hollister Co.” Hollister is a limited liability company, with its principal place of business located at 6301 Fitch Path, New Albany, OH 43054. Hollister operates stores throughout the United States.
CLASS ACTION ALLEGATIONS 23. Defendants have discriminated against and continue to discriminate against customers who use wheelchairs as more fully set forth in this Complaint. 24. Defendants own and operate Hollister Co. stores throughout the United States that discriminate against individuals who use wheelchairs in violation of the ADA and in Colorado that violate the CCRA. 25. Defendants have designed, constructed and/or maintained service counters in Hollister Co. stores that are too high for customers in wheelchairs to reach. 26. Defendants have a uniform service counter design in all of their Hollister Co. stores throughout the United States. 27. Defendants’ uniform service counters are not readily accessible to and usable by individuals who use wheelchairs. 28. Defendants’ uniform service counter design does not afford individuals who use wheelchairs the full and equal opportunity to enjoy the goods, services, facilities, privileges and accommodations offered at Hollister Co. stores. 29. Defendants arrange and maintain merchandise displays and other store displays in
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its Hollister Co. stores throughout the United States that block access for individuals who use wheelchairs throughout the store to merchandise displayed on fixed shelving.
30. Defendants’ design and layout of its Hollister Co. stores in the United States that block access for individuals who use wheelchairs throughout the store to merchandise displayed on fixed shelving do not afford individuals who use wheelchairs the full and equal opportunity to enjoy the goods, services, facilities, privileges and accommodations provided at those stores,
31. Defendants have designed and constructed elevated entrances at their Hollister Co. stores throughout the United States that have steps. These entrances are not accessible to individuals who use wheelchairs.
32. The elevated entrances with steps in Hollister Co. stores throughout the United States that have elevated entrances with stairs are designed to be the main public entrance to those stores.
33. In Hollister Co. stores throughout the United States that have elevated entrances with stairs, Defendants have designed and constructed a separate segregated entrance for individuals who use wheelchairs.
34. The separate segregated entrances at Hollister Co. stores throughout the United States are not readily accessible to and usable by individuals who use wheelchairs.
35. The separate segregated entrances at Hollister Co. stores throughout the United States do not provide individuals who use wheelchairs with the full and equal enjoyment of Hollister Co. stores’ goods, services, facilities, accommodations and privileges.
36. All of Hollister’s stores were designed and constructed after January 26, 1993.
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37. Hollister Co. stores throughout the United States that have elevated entrances with stairs do not provide signage at the entrance directing individuals who use wheelchairs to the separate segregated entrances.
38. In Hollister’s stores with steps, customers who use wheelchairs who have found the door opening device and who have entered the store have experienced the following types of access barriers:
a. They press the button, wait for the door to open slowly and then enter either the “Dude’s” side or “Betty’s” side.
b. The only way to access the other side of the store (from “Dude’s” to “Betty’s,” or vice versa) for a customer using a wheelchair is to go through the store to the service counter, mid-way back in the store, and then the individual can access the other side.
c. Often, there is no accessible route between the Dude’s and Betty’s sides of the stores because merchandise displays, furniture, plants and other items block accessible routes.
39. The interior of Hollister’s stores generally are arranged with merchandise, furniture, plants and other items which impede access through the store for customers who use wheelchairs.
40. On information and belief, Defendants intend to continue designing and constructing stores with steps at the entrance used by the general public.
41. Within two years prior to the filing of the original Complaint, each of the
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Individual Plaintiffs has experienced some or all of the accessibility barriers described in this Third Amended and Complaint at Defendants’ Hollister Co. stores.
42. On information and belief, class members have experienced the same barriers to full accessibility that the Individual Plaintiffs and CCDC members who use wheelchairs have experienced exist in Defendants’ stores throughout the United States.
43. Defendants have been involved in lawsuits before the instant case regarding claims of ADA violations and a lack of accessibility for individuals who use wheelchairs.
44. Defendants maintain and/or engage in policies, practices and procedures that violate the ADA.
45. Class members have been damaged by Defendants’ failure to comply with the ADA.
46. The Individual Plaintiffs and Colorado Cross-Disability Coalition (“Proposed Class Representatives”) seek to maintain this action as a class pursuant to Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure and under Rule 23(c)(4) with respect to the following issues (“Class Issues”):
a. Whether Defendants’ elevated entrances with stairs at Hollister Co. stores throughout the United States are readily accessible to and usable by individuals who use wheelchairs.
b. Whether Defendants’ elevated entrances with stairs at Hollister Co. stores throughout the United States deny individuals who use wheelchairs the full and equal enjoyment of the goods, services, privileges and facilities at Hollister
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stores. c. Whether Defendants’ separate segregated entrances for individuals who use
wheelchairs at Hollister Co. stores throughout the United States are readily accessible to and usable by individuals who use wheelchairs. d. Whether Defendants’ separate segregated entrances for individuals who use wheelchairs at Hollister Co. stores throughout the United States deny individuals who use wheelchairs the full and equal enjoyment of the goods, services, privileges and facilities at Hollister stores. e. Whether Defendants’ services counters at Hollister Co. stores throughout the United States are readily accessible to and usable by individuals who use wheelchairs. f. Whether Defendants’ service counters at Hollister Co. stores throughout the United States deny individuals who use wheelchairs and scooters the full and equal enjoyment of the goods, services, privileges and facilities at Hollister stores. g. Whether Defendants’ uniform policies and practices of blocking access to fixed shelving merchandise displays for individuals who use wheelchairs at Hollister Co. stores throughout the United States deny such individuals full and equal access to the stores’ goods, services, privileges and accommodations. 47. The class consists of all people with disabilities who use wheelchairs for mobility who, during the two years prior to the filing of the Complaint (doc. 1, filed November 24, 2009)
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in this case, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. store in the United States on the basis of disability.
48. The class identified is believed to consist of hundreds of members, and joinder of all such class members in this lawsuit is impracticable.
49. All questions of law or fact as set forth in above relating to the specific Class Issues are common to the class.
50. The claims of the Proposed Class Representatives are typical of the claims of the class. The Individual Plaintiffs -- like all other members of the class -- each use a wheelchair for mobility and claim that Defendants have violated the ADA by constructing stores with stairs at their entrances and high service counters after the effective date of the ADA.
51. The Proposed Class Representatives will fairly and adequately protect the interests of the class because they have retained counsel with extensive experience in litigation, including class action litigation.
52. The Proposed Class Representatives have no interests that conflict in any way with those of the class.
53. This action may be maintained pursuant to Rule 23(b)(1)(B), because the adjudication of the individual Proposed Class Representatives’ claims regarding the Class Issues would, as a practical matter, be dispositive of the interests of all other class members.
54. This action may be maintained pursuant to Rule 23(b)(2), because Defendants’ actions that form the basis of the Class Issues are actions that apply generally to the class.
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Injunctive or declaratory relief, therefore, is appropriate respecting the class as a whole. 55. This action may be maintained pursuant to Rule 23(b)(3), because, with respect to
the Class Issues, there are common questions of fact and law and all questions relating to the particular Class Issues predominate over any questions affecting only individual class members.
56. This action may be certified as a class pursuant to Rule 23(c)(4) because the Class Issues apply to all class members ant to all Hollister Co. stores nationwide.
57. A class action with respect to the Class Issues is superior to other available methods for fairly and efficiently adjudicating the controversies presented by the class because the damages suffered by individual class members are small and because the burden upon such individual litigants may make it difficult and impractical for them to individually pursue their claims against Defendants.
58. Judicial economy will be served by maintenance of this lawsuit as a class action with respect to the Class Issues as it is likely to avoid the burden that would otherwise be placed upon the judicial system by the filing of numerous, similar suits by disabled individuals throughout the United States. There are no obstacles to effective and efficient management of this lawsuit as a class action by this Court.
INDIVIDUAL ALLEGATIONS 59. Plaintiffs reallege and reincorporate by reference all other allegations in this Complaint herein. 60. Plaintiff Anita Hansen has visited Defendants’ stores and experienced the accessibility barriers identified in this Complaint. As set forth below, Plaintiff Hansen will go to
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Defendants’ stores if Defendants remedy the ADA violations identified in this complaint. 61. Plaintiff Hansen visits malls and other retail shopping complexes, including malls
and shopping complexes in which Defendants maintain Hollister Co. stores approximately six to eight times per year in order to shop for merchandise for herself, her friends and relatives.
62. Plaintiff Hansen visited Defendants’ Hollister store, located in the Orchard Towne Center at 14697 Delaware Street, Westminster, Colorado, on July 30, 2010, and experienced the accessibility barriers identified in this Third Amended and Class Action Complaint.
63. When Plaintiff Hansen arrived at the Orchard Town Center Hollister store, she did not see a way to access the store right away because there are steps at the front entrance. The steps led to a platform with chairs and items displayed on it and appeared to be the only entrance to the store.
64. Because Plaintiff Hansen uses a wheelchair, the steps prohibited Plaintiff Hansen from accessing the store.
65. There was no sign at the entrance where the steps are that directed Plaintiff Hansen to an accessible entrance.
66. Eventually, Plaintiff Hansen did find what looked like shutters with a small button next to them. This button was located to the left of the main entrance approximately ten feet and was difficult to see.
67. When Plaintiff Hansen approached the button and pressed it, a door (which looks like shutters) was locked.
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68. Someone outside the store who did not appear to be an employee asked Plaintiff Hansen if she needed to get in the store. Plaintiff Hansen told him, “Yes.”
69. The entrance to the store was very narrow, but Plaintiff Hansen was able to enter. 70. Plaintiff Hansen entered on the young women’s side of the store. 71. Looking at the entrance from inside the store, Plaintiff Hansen observed steps coming down from the entrance platform into the young women’s section. 72. Plaintiff Hansen went about twenty-five feet into the store and was blocked by barriers -- merchandise tables, furniture and plants -- that were arranged in such a way that Plaintiff Hansen could not go further into the store in her wheelchair. 73. Plaintiff Hansen had to request employees move tables and furniture about five to six times to be able to get through the store. 74. Plaintiff Hansen wanted to access the fragrances section of the store but was unable to do so, as her access to that part of the store was blocked by furniture and merchandise. 75. The only way to get to the young men’s side of the store was to ask employees to move tables, chairs, and other heavy objects so Plaintiff Hansen could have a clear path for her wheelchair. 76. Plaintiff Hansen finally found shirts Plaintiff Hansen wanted to purchase, but was unable to access most of the merchandise in the store. 77. Plaintiff Hansen looked for the service counter to make a purchase and discovered that it was located approximately halfway back in the middle of the store. When Plaintiff Hansen approached the service counter, Plaintiff Hansen discovered it was about as high as her forehead,
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and there was no lower portion so she could reach the counter. The service counter is one of the highest Plaintiff Hansen has observed in a clothing store.
78. The employee behind the counter waited for Plaintiff Hansen to hand Plaintiff Hansen the shirts Plaintiff Hansen was buying, but Plaintiff Hansen was unable to hand them to her because Plaintiff Hansen could not reach over the counter.
79. Plaintiff Hansen had to request the employee come around the counter to pick up the shirts.
80. Plaintiff Hansen observed the counter is very long, and it took a while for the employee to come around to retrieve the items.
81. The employee came around the counter, retrieved the shirts and walked back around the counter. This took additional time as well.
82. The employee asked if Ms. Hansen could reach the point-of-sale device, and the employee tried to stretch the cord of the device over the top of the counter. The device would not reach over the high counter.
83. The employee spoke to another employee whom Plaintiff Hansen believed to be a manager. The manager told the employee to print out a paper receipt.
84. The employee printed the receipt and walked around the counter again to hand the receipt to Plaintiff Hansen.
85. Because of the inaccessibility of the counter, Plaintiff Hansen’s purchase took much longer than it would have if the counter was accessible.
86. From the service counter, Plaintiff Hansen had to maneuver her wheelchair
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around more display tables, furniture, plants and other fixtures to exit the store by the now-unlocked door she had used to enter; however, when Plaintiff Hansen pressed the accessible door button, the door did not open immediately. It seemed to Plaintiff Hansen like the door was stuck or not working properly because the door took a long time to open after she pressed button.
87. This store was one of the most difficult stores Plaintiff Hansen have been in with respect to accessibility.
88. Plaintiff Hansen was frustrated and humiliated throughout this shopping experience by the lack of accessibility.
89. Plaintiff Hansen went to the Hollister store at Park Meadows Mall at 8401 South Park Meadows Center Drive, Lone Tree, Colorado, on August 19, 2009, and experienced accessibility barriers identified in this Complaint.
90. Plaintiff Hansen went to this store to return the shirts she had purchased previously at the Orchard Town Center Hollister store.
91. This store design and layout were similar to the store in the Orchard Town Center.
92. The front entrance to this store had steps blocking access for Plaintiff Hansen. 93. There was no sign at the front entrance directing a person in a wheelchair how to access the store. 94. Off to the right of the entrance porch, there was a small, hard-to-see button next to what looked like shutters. 95. Plaintiff Hansen pressed the button, and a door opened automatically in the
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direction of her wheelchair. 96. Plaintiff Hansen had to back up quickly in her wheelchair to avoid being hit by
the opening door. 97. The entrance was very narrow and difficult to get through in Plaintiff Hansen’s
wheelchair. 98. Plaintiff Hansen entered into the young men’s side of the store. 99. Steps that led from the entrance porch the young women’s side of the store made
it impossible for Plaintiff Hansen to access that side of the store in her wheelchair. 100. As soon as Plaintiff Hansen entered the store, there was a table of merchandise
that blocked her entrance. 101. No employee offered to help move the table, so Plaintiff Hansen had to get past
the table by pushing it out of the way with her motorized wheelchair. 102. In order to get through the store, Plaintiff Hansen had no other choice but to use
her wheelchair to push furniture, display tables and plants so she could make a path for herself to get through the store.
103. Plaintiff Hansen wanted to look at merchandise in the fragrance section, but her access to that section of the store was blocked by heavy furniture and other fixtures.
104. Plaintiff Hansen noticed that all of the merchandise displayed on fixed shelving around the exterior of the store was blocked by merchandise tables, furniture and plants, making it impossible for her to get close enough to look at merchandise there.
105. When Plaintiff Hansen got to the service counter, she discovered it was so high
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that she could not see the top of it. This made it very difficult for Plaintiff Hansen to put the items she was returning on the service counter because she had to reach far above her head.
106. Plaintiff Hansen observed other customers standing at the counter who used the counter without difficulty.
107. Rather than having to ask the employee to walk all the way around the counter and back to get her signature, Plaintiff Hansen asked the employee to sign the point-of-sale device for the exchange.
108. Plaintiff Hansen exited the store frustrated and humiliated by the lack of accessibility.
109. In March of 2010, while shopping, Plaintiff Hansen went to the Hollister store in the Parkdale Mall, located at 6155 Eastex Freeway, Beaumont, Texas 77706.
110. Because of the barriers to accessibility Plaintiff Hansen had experienced earlier at the two previous Hollister stores, she was deterred from entering the store.
111. Plaintiff Hansen will shop at Defendants’ Hollister stores, including the ones she shopped at or attempted to shop at, if Defendants remedy the inaccessibility. Plaintiff Hansen will visit Defendants’ other Hollister stores in the Denver metropolitan area and elsewhere when she travels if Defendants make their stores accessible.
112. Plaintiff Hansen will return to the stores she has previously visited periodically to test whether accessibility barriers still exist.
113. Until the accessibility barriers are remedied, other than visiting Hollister stores to test accessibility, Plaintiff Hansen is and will continue to be deterred and discouraged from
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going to Defendants’ Hollister stores. 114. Plaintiff Robert Sirowitz has visited Defendants’ stores and experienced the
accessibility barriers identified in this Complaint. 115. As set forth in this herein, Plaintiff Sirowitz intends to access Defendants’ stores
in the future if Defendants remedy the ADA violations identified in this complaint. 116. Plaintiff Sirowitz visits malls and other retail shopping complexes, including
malls and shopping complexes in which there are Hollister stores, approximately four to five times per year, in order to shop for merchandise for himself, friends and relatives.
117. Plaintiff Sirowitz visited Defendants’ Hollister store, located within the Park Meadows Mall at 8401 South Park Meadows Center Drive, Lone Tree, Colorado, on the afternoon of July 8, 2009, with Joshua Stapen, who also uses a wheelchair, and experienced the accessibility barriers identified in this complaint.
118. Upon arriving at the Park Meadows Mall store, Plaintiff Sirowitz encountered a large porch-like structure that had steps at the entrance.
119. Because of the steps, Plaintiff Sirowitz was unable to access the entrance to the store.
120. Plaintiff Sirowitz looked for another entrance to access the store. 121. There was no sign at the porch-like entrance indicating to Plaintiff Sirowitz there was another accessible entrance. 122. Plaintiff Sirowitz did find what looked like a set of shutters with a small metal object next to them.
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123. Plaintiff Sirowitz approached the small metal object and discovered it had a small, hard-to-see access symbol on it and it appeared to be a button.
124. When Plaintiff Sirowitz pressed the button, a door off to the side of the porch-like entrance opened.
125. The door opened in the direction of Plaintiff Sirowitz’s whelchair, so he had to move out of its way quickly to avoid being hit by it.
126. Plaintiff Sirowitz tried to enter the store, but he could not because there was a table full of merchandise blocking this entrance.
127. Plaintiff Sirowitz did not see any employee when Plaintiff Sirowitz tried to enter. 128. After several minutes, an employee came to the front of the store and after a few minutes, the employee moved the table that blocked Plaintiff Sirowitz’s access to the store. 129. After the employee moved the table, Plaintiff Sirowitz entered the store and wanted to shop. 130. Plaintiff Sirowitz was able to get approximately three feet into the store where he encountered more display units, tables and merchandise, which blocked him from going further. 131. Plaintiff Sirowitz heard the store employee say that Plaintiff Sirowitz and Plaintiff Stapen, who was right behind Plaintiff Sirowitz, would not be able to shop in the store. 132. Plaintiff Sirowitz backed his wheelchair out of the store and left. 133. Plaintiff Sirowitz was very frustrated and humiliated by the lack of accessibility at the Park Meadows Hollister store. 134. Plaintiff Sirowitz intends to shop at Hollister stores, and will shop at the Hollister
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store in Park Meadows Mall if this Hollister store is made accessible. 135. Plaintiff Sirowitz has been deterred from going back to the Park Meadows
Hollister store he visited because of the lack of accessibility. 136. Plaintiff Sirowitz has been deterred from going to other Hollister stores because
of their lack of accessibility. 137. Plaintiff Sirowitz intends to visit Defendants’ Hollister store in Park Meadows
Mall to test accessibility in the future. 138. Plaintiff Joshua Stapen has visited Defendants’ stores and experienced the
accessibility barriers identified in this Complaint. 139. Plaintiff Stapen visits malls and other retail shopping complexes, including malls
and shopping complexes in which Defendants maintain Hollister stores, approximately four to five times per year in order to shop for merchandise for himself, friends and relatives.
140. Plaintiff Stapen visited Defendants’ Hollister store, located within the Park Meadows Mall at 8401 South Park Meadows Center Drive, Lone Tree, Colorado, in the afternoon of July 8, 2009 with Robert Sirowitz, and experienced the accessibility barriers identified in this complaint.
141. When Plaintiff Stapen arrived at the Park Meadows Mall Hollister store, he did not see a way to access the store right away because there were steps at the front entrance. The steps led to a platform that looked like a porch with chairs and items displayed on it and appeared to be the only entrance to the store.
142. There was no sign at the entrance porch directing Plaintiff Stapen to an accessible
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entrance. Plaintiff Stapen knew from similar circumstances that it is possible to identify an unmarked accessible entrance by the presence of a door opener button, but was not able to find the door opener button.
143. As Plaintiff Stapen and Plaintiff Sirowitz and prepared to leave, they saw someone exit the store from a door on the right side of the store. When Plaintiffs Stapen and Sirowitz got to the door they saw what looked like shutters -- which were indistinguishable from the rest of the exterior of the store -- but turned out to be a door.
144. Plaintiff Stapen followed Robert Sirowitz to the door and, when Plaintiff Sirowitz found a small button next to it and pressed it, Plaintiff Stapen attempted to follow him into the store.
145. Plaintiff Sirowitz entered the store and went in a short distance. Plaintiff Stapen was behind Plaintiff Sirowitz.
146. Suddenly, Plaintiff Sirowitz stopped, and Plaintiffs Sirowitz and Stapen were not able to get into the store because the area immediately in front of them was blocked by tables. Plaintiff Stapen was unable to enter the store.
147. One of the Hollister employees saw Plaintiffs Sirowitz and Stapen were unable to enter the store further and commented, “I can’t move any more tables.”
148. Plaintiff Stapen intends to shop and will shop at Defendants’ Hollister stores, including the store located in the Park Meadows Mall, if Defendants remedy the barriers he encountered and others like them.
149. Plaintiff Stapen intends to and will visit Defendants’ other Hollister stores in the
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Denver metropolitan area and elsewhere when he travels if Defendants remedy the accessibility barriers similar to those he experienced.
150. Plaintiff Stapen intends to and will return to the Hollister store he visited to test whether the accessibility barriers have been remedied.
151. Other than to determine if Hollister stores are accessible, Plaintiff Stapen is and continues to be deterred and discouraged from going to Defendants’ Hollister stores.
152. Plaintiff Stapen was humiliated and frustrated by his experience trying to enter the Hollister store in July of 2009.
153. Plaintiff Stapen would like to and will access Defendants’ stores in the future if Defendants remedy the ADA violations identified in this complaint.
154. Plaintiff Robin Stephens has visited Defendants’ stores and experienced the accessibility barriers identified in this Complaint.
155. Plaintiff Stephens visits malls and other retail shopping complexes, including malls and shopping complexes in which Defendants maintain Hollister stores, approximately four times per year, in order to shop for merchandise for herself, friends and relatives.
156. Plaintiff Stephens visited Defendants’ Hollister store, located within the Park Meadows Mall at 8401 South Park Meadows Center Drive, Lone Tree, Colorado, on July 15, 2009, and experienced the accessibility barriers identified in this complaint.
157. When Plaintiff Stephens arrived at the Park Meadows Hollister store, she did not see a way to access the store right away because there were steps at the front entrance.
158. The steps led to a porch-like platform with chairs and items displayed on it and
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appeared to be the only entrance to the store. 159. There was no sign near the entrance porch directing Plaintiff Stephens to an
accessible entrance. 160. After several minutes of searching, Plaintiff Stephens found what looked like
shutters with a small button next to it. These shutters were indistinguishable from the rest of the shutters on the exterior of the store, and the button was small and difficult to find.
161. Once Plaintiff Stephens eventually located the button, she pressed it, but the door did not open and seemed to be locked.
162. Plaintiff Stephens saw a Hollister employee, who was standing nearby on the entrance porch and appeared to be on duty at the time. That employee watched while Plaintiff Stephens attempted to get the door to open, but the employee did not open the door or otherwise offer to assistance with opening the door.
163. Plaintiff Stephens tried to open the door for about ten minutes. During the entire time she struggled to open the door, the Hollister employee organized the displays on the entrance porch. Plaintiff Stephens left the Hollister store without ever having been able to enter the store.
164. Plaintiff Stephens was humiliated and frustrated by her experience. 165. Plaintiff Stephens intends to shop at Defendants’ Hollister stores, including the store located in the Park Meadows Mall, if Defendants remedy the barriers to accessibility she experienced and those identified in the complaint. In addition, Plaintiff Stephens will visit Defendants’ other Hollister stores in the Denver metropolitan area and elsewhere when she
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travels if Defendants remedy the accessibility barriers she experienced. 166. Plaintiff Stephens intends to test Defendants’ Hollister stores periodically to see
whether accessibility barriers have been remedied. 167. Until the accessibility barriers Plaintiff Stephens encountered are remedied, she
will be deterred and discouraged from going to Defendants’ Hollister stores, other than to test accessibility, because of her frustrating and humiliating experience.
168. Plaintiff Benjamin Hernandez has visited Defendants’ stores and experienced accessibility barriers identified in this complaint.
169. Plaintiff Hernandez visit malls and other retail shopping complexes, including malls and shopping complexes in which Defendants maintain Hollister stores, approximately two times per month, in order to shop for merchandise for himself, his friends and relatives.
170. Plaintiff Hernandez visited Defendants’ Hollister store, located in the Orchard Towne Center at 14697 Delaware Street, Westminster, Colorado, on July 29, 2009, and experienced accessibility barriers identified in this complaint.
171. When Plaintiff Hernandez arrived at the Orchard Towne Center Hollister store, he did not see a way to access the store right away because there are steps at the front entrance. The steps led to a platform that looked like a porch with chairs and items displayed on it and which appeared to be the only entrance to the store.
172. Plaintiff Hernandez sat in front of the steps and yelled for an employee to come and assist, but no one ever came.
173. There was no sign near the main entrance, directing Plaintiff Hernandez to an
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accessible entrance. 174. After remaining at the steps for several minutes, Plaintiff Hernandez began
searching for an alternative entrance to the store. Plaintiff Hernandez had to search for several more minutes, but he eventually found what looked like shutters with a small button next to them. These shutters were indistinguishable from the rest of the shutters on the exterior of the store, and the button was small and had a corroded, oxidized look, that blended into the rest of the building, making it difficult to find.
175. The door that opened with the button opened on the “Betty’s” side of the store, which is the side of the store with women’s clothing. Plaintiff Hernandez intended to purchase a hoodie (a hooded sweatshirt) for himself, and Plaintiff Hernandez had to travel halfway through the store, passing in front of the service counter, in order to get to the “Dude’s” side, which is the side of the store with men’s clothes.
176. Plaintiff Hernandez noticed people who did not need to use wheelchairs could freely choose between entering directly into the Dude’s or Betty’s sections of the store because the stairs and the porch did not block their access.
177. After Plaintiff Hernandez got to the Dude’s side of the store, Plaintiff Hernandez was not able to access the outside walls where merchandise was displayed because clothing racks and tables blocked them.
178. When Plaintiff Hernandez asked an employee to help him find the hoodies, and the employee said that she could not leave the room, but that another employee in the part of the store with the hoodies could help him.
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179. When Plaintiff Hernandez found the area of the store with hoodies, he could not reach the rack that held the hoodies. Plaintiff Hernandez asked the employee there if she could help him to the display of hoodies. The employee said that the rack did not move, but that Plaintiff Hernandez could tell the employee what he wanted and she would get it for him.
180. When Plaintiff Hernandez got to the service counter, he discovered it was very high all the way across, and it did not have a lowered portion so that Plaintiff Hernandez could reach the service counter. Because of the height of the service counter, Plaintiff Hernandez was deterred from making a purchase.
181. Plaintiff Hernandez was humiliated and frustrated by his experience. 182. Plaintiff Hernandez visited defendants’ Hollister store located within the Park Meadows Mall at 8401 South Park Meadows Center Drive, Lone Tree, Colorado, just after Christmas of 2009, and experienced the accessibility barriers identified in this complaint. 183. Plaintiff Hernandez went to the Park Meadows Hollister store in late December of 2009 or early January of 2010 to shop for shirts during the after-holiday sales. 184. When Plaintiff Hernandez arrived at the Park Meadows Hollister store, he saw steps at the front entrance. 185. Plaintiff Hernandez observed customers entered and exited the store through this entrance with steps. 186. Because of the steps, Plaintiff Hernandez could not enter the store through this entrance. 187. Plaintiff Hernandez observed, like the Orchard Towne Center Hollister store, this
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store had a small, hard-to-find button next to a set of what look like shutters off to the side of the main entrance.
188. Plaintiff Hernandez entered the store through these doors. 189. Once Plaintiff Hernandez entered the store, merchandise displays blocked his ability to get through the store, so he turned around and left. 190. Plaintiff Hernandez has been to Park Meadows Mall twice since trying to enter the Park Meadows Mall store. Plaintiff Hernandez has been deterred from entering or trying to shop at this store because of the lack of accessibility. 191. Plaintiff Hernandez would like to shop and will shop at Defendants’ Hollister stores, including the stores located in the Orchard Towne Center and Park Meadows Mall, if Defendants remedy the inaccessibility. 192. Plaintiff Hernandez intends to visit Defendants’ other Hollister stores in the Denver metropolitan area and elsewhere when he travels if Defendants remedy the accessibility barriers like those he experienced. 193. Plaintiff Hernandez will return to the Hollister store he visited in order to test whether accessibility barriers still exist. 194. Plaintiff CCDC is a membership organization having members who use wheelchairs. 195. As a result of Defendants’ failures to make their stores accessible, CCDC has investigated and is investigating complaints by individuals who use wheelchairs about accessibility at Defendants’ stores.
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196. CCDC has filed two prior lawsuits against Defendant A&F Stores regarding wheelchair accessibility in two specific Abercrombie & Fitch Colorado stores, owned and operated by A&F Stores. These cases were resolved.
197. A&F Stores has been aware of the accessibility issues raised by CCDC in its stores for over fifteen years.
198. CCDC has members who use wheelchairs who have experienced and/or are likely to experience barriers to accessibility at Defendants’ stores.
199. CCDC’s purpose is to work for systemic change that promotes independence, self-reliance, and full inclusion for people with disabilities in the entire community. As part of that purpose, CCDC seeks to ensure that persons with disabilities have access to -- and do not encounter discrimination in -- the goods, services, facilities, privileges, advantages, or accommodations provided by places of public accommodation.
200. CCDC engages in extensive outreach as well as advocacy and educational efforts to promote access for and combat discrimination against people with disabilities. This effort and this purpose have been and continue to be adversely affected by the Defendants’ violations of the laws cited herein.
201. Defendants’ actions have caused and continue to cause distinct, palpable, and perceptible injury to CCDC.
202. CCDC has devoted resources, which could have been devoted to its other outreach, advocacy, and educational efforts, to communicating with Defendants in an attempt to secure non-discriminatory policies and store access.
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203. CCDC has devoted resources, which could have been devoted to its other outreach, advocacy, and educational efforts, to counseling members and others who have been injured by Defendants’ discrimination.
204. As set forth in this Complaint, Defendants’ discrimination has been and continues to be a barrier to the full participation of persons with disabilities and, therefore, frustrates CCDC’s ability to achieve full inclusion for persons with disabilities.
205. Defendants’ discrimination has required and continues to require CCDC to make a greater effort -- and to allocate significant resources -- to educate the public that such discrimination is wrong and otherwise to counteract the adverse impact of such discrimination. This perceptibly impairs CCDC’s counseling, advocacy, educational, and training missions.
206. CCDC also has devoted and continues to devote resources -- including but not limited to those devoted to the present lawsuit -- to identifying and counteracting the sources of discrimination in the community, including that of Defendants.
207. CCDC’s injuries -- including, without limitation, those described herein -- are traceable to Defendants’ discriminatory conduct alleged in this Complaint and will be redressed by the relief requested in it.
208. CCDC’s members and their spouses, friends, relatives, and associates have been injured and will continue to be injured by Defendants’ discrimination.
209. The elimination of discrimination, such as that of Defendants, and the integration of persons with disabilities into all aspects of community life are at the core of CCDC’s organizational purpose.
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210. The participation of individual CCDC members in the lawsuit is not required either to resolve the claims at issue or to formulate relief.
FIRST CLAIM FOR RELIEF (On behalf of CCDC, the Class Representatives, and all others similarly situated for violations of
Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq.) 211. Plaintiffs reallege and reincorporate by reference the remainder of the allegations set forth in this Complaint as if fully set forth herein. 212. Defendant A&F Stores owns and operates Hollister Co. stores throughout the United States. 213. A&F Co. is the parent company of A&F Stores. 214. A&F Stores is the owner of the subsidiary Hollister. 215. A&F Stores’ Hollister Co. stores are places of public accommodation under 42 U.S.C. § 12181(7)(E). 216. All Hollister Co. stores were designed and constructed after the effective date of the ADA. 217. All Hollister Co. were required to be designed, constructed or altered so that they are readily accessible to and usable by individuals who use wheelchairs. 42 U.S.C. § 12183(a). 218. Hollister Co. stores were not designed and constructed to be readily accessible to and usable by individuals who use wheelchairs. 219. All Hollister Co. stores were required to be designed and constructed to comply with the Department of Justice’s Standards for Accessible Design (“Standards”). 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 36.406; 28 C.F.R., pt. 36, app A.
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220. Defendants’ Hollister stores do not comply with the Standards. 221. Defendants are required to provide individuals who use wheelchairs full and equal enjoyment of their stores. 42 U.S.C. § 12182(a). 222. Defendants have failed and continue to fail to provide individuals who use wheelchairs the full and equal enjoyment of their Hollister Co. stores in the United States. 223. Defendants unlawfully discriminated against individuals who use wheelchairs and will continue to discriminate against individuals who use wheelchairs unless this Court orders an injunction prohibiting such discrimination. 224. Plaintiffs were damaged by Defendants’ discrimination and will continue to be damaged by Defendants’ discrimination unless this Court orders them to comply.
SECOND CLAIM FOR RELIEF (On behalf of the Individual Plaintiffs, all class members in Colorado and CCDC for violations
of the Colorado Civil Rights Act “CCRA,” Colo. Rev. Stat. § 24-34-601, et seq.) 225. Plaintiffs reallege and reincorporate by reference the remainder of the allegations set forth in this Complaint as if fully set forth herein. 226. Under the CCRA, It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability . . ., the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation[.] Colo. Rev. Stat. § 24-34-601(2). 227. Any person who violates section 601 above “shall be fined not less than fifty dollars nor more than five hundred dollars for each violation.” Colo. Rev. Stat. § 24-34-602(1). 228. Defendants own and operate the stores about which Plaintiffs’ complain in this

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lawsuit. 229. Defendants are liable for the failures to comply with the CCRA. 230. The CCRA is to be construed consistently with the ADA and other federal civil
rights statutes. 3 Colo. Code Regs. 708-1:60.1(C). 231. As set forth in this Complaint, Defendants have violated the CCRA by denying
individuals who use wheelchairs the full and equal enjoyment of the goods, facilities, services and accommodations of their stores.
232. Defendants’ violations of the CCRA have harmed Plaintiffs and will continue to harm Plaintiffs and Colorado class members unless the Court orders Defendants to comply.
233. Plaintiffs have been damaged and will continue to be damaged by Defendants’ violations of the CCRA.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully pray:
1. That this Court assume jurisdiction; 2. that this Court certify the class identified in paragraph 47 pursuant to Rule 23 of the Federal Rules of Civil Procedure; 3. that this Court issue an injunction ordering Defendants to comply with the ADA with respect to all Hollister Co. stores nationwide and all Abercrombie & Fitch and abercrombie stores in Colorado; 4. that this Court award monetary damages to Plaintiffs to the maximum extent permitted;
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5. that this Court award reasonable attorneys’ fees and costs; and

6. that this Court award such additional or alternative relief as may be just,

proper and equitable.

JURY DEMAND: Plaintiffs demand a jury on all issues which can be heard by a jury.

Dated: August 30,2010

Respectfully submitted,

/s/ Kevin W. Williams Kevin W. Williams Carrie Ann Lucas Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Voice: 303.839.1775 TTY: 303.839.0015 Facsimile: 303.839.1782 E-mail: kwilliams@ccdconline.org E-mail: clucas@ccdconline.org

Amy F. Robertson Fox & Robertson, P.C. 104 Broadway, Suite 400 Denver, CO 80203 Voice: (303) 595-9700 TTY: (877) 595-9706 Facsimile: (303) 595-9705 E-mail: arob@foxrob.com

Bill Lann Lee Julia Campins Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 1330 Broadway, Suite 1800 Oakland, CA 94612 Voice: (510) 839-6824 Fax: (510) 839-7839 E-mail: blee@lewisfeinberg.com E-mail: jcampins@lewisfeinberg.com

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Address of Plaintiff Colorado Cross-Disability Coalition:

655 Broadway, Suite 775 Denver, CO 80203

Address of Anita Hansen:

Address of Joshua Stapen:

7400 W. Grant Ranch Blvd. Littleton, CO 80123

3610 Pointer Way Highlands Ranch, CO 80126

Address of Robert Sirowitz:

Address of Benjamin Hernandez:

801 Englewood Parkway, Apt. E-101 Englewood, CO 80110

1059 Ammons Street #6, Lakewood, CO 80214

Address of Robin Stephens:

4411 South Washington Street Englewood, CO 80113

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 Case 1:09-cv-02757-WYD-KMT Document 76 Filed 09/20/10 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No.: 09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, ANITA HANSEN, ROBERT SIROWITZ, JOSHUA STAPEN, ROBIN STEPHENS, and BENJAMIN HERNANDEZ
Plaintiffs, v. ABERCROMBIE & FITCH CO., ABERCROMBIE & FITCH STORES, INC., and J.M. HOLLISTER LLC, d/b/a HOLLISTER CO.,
Defendants. DEFENDANTS’ RENEWED
MOTION TO DISMISS FOR LACK OF STANDING Defendants, Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., and J.M. Hollister, LLC, move the Court to dismiss Plaintiffs’ Third Amended and Class Action Complaint for lack of subject matter jurisdiction, pursuant to F.R. Civ. P. (12)(b)(1). As set forth in the Memorandum in Support of this Renewed Motion, all plaintiffs lack constitutional standing to assert their federal claims for a nationwide injunction, plaintiff Colorado CrossDisability Coalition lacks prudential standing to assert claims on behalf of its Members, and the Court should decline to exercise supplemental jurisdiction over their remaining state law claims.
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Respectfully submitted,
/s/ Thomas B. Ridgley Thomas B. Ridgley Mark A. Knueve Richard T. Miller VORYS, SATER, SEYMOUR & PEASE LLP 52 E. Gay Street PO Box 1008 Columbus, Ohio 43215
Gregory A. Eurich OF HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8166 Fax: (303) 975-5464 geurich@hollandhart.com ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that on September 20th, 2010, I have caused to be electronically filed the foregoing with the Clerk of Courts using CM/ECF system which will send notification of such filing to the following e-mail addresses:
Kevin W. Williams, Legal Program Director Carrie Ann Lucas Center for the Rights of Parents with Disabilities Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203
/s/ Thomas B. Ridgley Thomas B. Ridgley VORYS, SATER, SEYMOUR & PEASE LLP 52 E. Gay Street PO Box 1008 Columbus, Ohio 43215
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9/20/2010 9302954

Case 1:09-cv-02757-WYD-KMT Document 76-1 Filed 09/20/10 USDC Colorado Page 1 of 16
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No.: 09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, ANITA HANSEN, ROBERT SIROWITZ, JOSHUA STAPEN, ROBIN STEPHENS, and BENJAMIN HERNANDEZ
Plaintiffs, v. ABERCROMBIE & FITCH CO., ABERCROMBIE & FITCH STORES, INC., and J.M. HOLLISTER LLC, d/b/a HOLLISTER CO.,
Defendants. ______________________________________________________________________________
DEFENDANTS’ MEMORANDUM IN SUPPORT OF RENEWED MOTION TO DISMISS FOR LACK OF STANDING ______________________________________________________________________________ Defendants previously moved to dismiss plaintiffs’ Second Amended and Class Action
Complaint for lack of standing. (DN 50.) After the motion was fully briefed, the Court granted
plaintiffs’ motion to further amend their pleadings, which defendants had not opposed. (DN 72.)
In their Third Amended and Class Action Complaint (DN 73), plaintiffs now attempt to assert
new claims and to cure the defects in standing that defendants had pointed out in their motion.
Plaintiffs’ new allegations do not establish that they have standing to bring their claims, for the
reasons set forth below, and their Third Amended and Class Action Complaint therefore should
be dismissed pursuant to F.R.Civ.P. 12(b)(1).
The factual allegations of plaintiffs’ pleadings do not show that they have standing to
assert their First Claim for Relief, which seeks a nationwide injunction to remedy alleged
violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12181, et seq. Plaintiff

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Colorado Cross-Disability Coalition (“CCDC”) lacks standing to assert this claim on its own behalf, because it has suffered no cognizable injury-in-fact from the alleged inaccessible conditions at defendants’ stores, or on behalf of its unnamed members, because they lack standing to litigate those claims. The five individual plaintiffs do not have standing to assert their ADA claims against all of defendants’ Hollister stores “nationwide,” and against their other stores in Colorado, because they face no immediate threat of harm as to stores they have never patronized and do not intend to patronize in the future.
The Court should then decline to exercise pendent jurisdiction over plaintiffs' Second Claim for Relief, which asserts Colorado state law damage claims. There is no federal subject matter jurisdiction over this case, and plaintiffs’ claims should be dismissed as a matter of law. I. Statement of Alleged Facts
Defendants move to dismiss this lawsuit pursuant to Fed.R.Civ.P. 12(b)(1) on the grounds that the facts alleged in plaintiffs’ Third Amended and Class Action Complaint would be insufficient to demonstrate standing even if they were true. Accordingly, plaintiffs’ factual allegations should be presumed to be true in deciding defendants’ motion. See Calderon v. Kansas Dept. of Social and Rehabilitation Services, 181 F.3d 1180, 1183 (10th Cir. 1999).
The five individual plaintiffs in this case use wheelchairs for mobility and allege that they encountered inaccessible conditions at three of defendants’ Hollister stores. (Third Amended Complaint, DN 73, at ¶¶ 15-19, 60-62, 89, 109, 117, 140, 156, 170, 182-83.) All five allege that they shopped at a Hollister store located in Lone Tree, Colorado; two shopped at a Hollister store in Westminster, Colorado; and one shopped at a Hollister store in Beaumont, Texas. (Id.) In each instance, they allege that steps at the main entrances to the stores required them to use an
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alternative wheelchair-accessible entrance, that service counters were too high, and that merchandise displays impeded their movement through the stores. (Id., at ¶¶ 60-193.)
Plaintiff CCDC is a Colorado corporation whose members include the five individual plaintiffs and others with disabilities, as well as people who advocate for their rights. (Id., at ¶¶ 9, 14.) CCDC alleges that the inaccessible conditions at defendants’ stores have caused it to devote resources to this lawsuit that it otherwise could have devoted to “other outreach, advocacy, and educational efforts,” and that this “frustrates” CCDC’s organizational goal of achieving full inclusion for people with disabilities. (Id., at ¶¶ 203-204.) However, CCDC further alleges that the resources it is devoting to the present lawsuit are being used to “identify[ ] and counteract[ ] the sources of discrimination,” which also advances that goal. (Id., at ¶ 206.)
Plaintiffs’ First Claim for Relief, for alleged violations of Title III of the ADA, is asserted by CCDC, the five individual plaintiffs, and the members of a putative nationwide class. They seek “an injunction ordering Defendants to comply with the ADA with respect to all Hollister Co. stores nationwide and all Abercrombie & Fitch and abercrombie stores in Colorado.” (Id., Prayer for Relief, at ¶ 3). In plaintiffs’ Second Claim for Relief, for alleged violations of the Colorado Civil Rights Act (“CRAA”), Colo. Rev. Stat. 24-34-601, et seq., CCDC, the five individual plaintiffs, and members of the putative nationwide class who reside in Colorado seek monetary damages for the same alleged conditions at defendants’ stores. (Id., at ¶¶ 231.)
II. Argument A. The First Claim for Relief should be dismissed because plaintiffs do not have
standing to assert this ADA claim. In the First Claim for Relief, CCDC (on its own behalf and on behalf of its members) and the five individual plaintiffs (on their own behalf and as proposed representatives of a putative national class) all seek the same injunction requiring defendants’ Hollister stores “nationwide”
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and their other stores in Colorado to comply with the ADA. Defendants have renewed their earlier motion to dismiss because the factual allegations of plaintiffs’ pleadings still fail to meet their burden of demonstrating that they have standing to assert this claim. As set forth below, CCDC has not alleged facts establishing that it will sustain a “certain and imminent” injury, as required for standing by Article III, Section 2 of the United States Constitution, and its allegations also fail to demonstrate that it has standing to assert this claim on behalf of its members for their alleged injuries. The five individual plaintiffs have similarly failed to allege facts showing that they will sustain a “certain and imminent” injury with respect to each of defendants’ stores unless an injunction is issued.
Standing is the threshold question in every federal case, as it determines whether the court has legal authority to decide the dispute. Warth v. Seldin, 422 U.S. 490, 498 (1975). “Article III of the Constitution restricts the federal courts to the adjudication of ‘Cases’ and ‘Controversies,’” Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004), and “[t]he doctrine of standing is one of several doctrines that reflect this fundamental limitation.” Summers v. Earth Island Institute, -- U.S. --, 129 S. Ct. 1142, 1149 (2009). Indeed, standing is “perhaps the most important limit on federal subject matter litigation,” Allen v. Wright, 468 U.S. 737, 750 (1984), because it ensures that “the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal court jurisdiction.” Summers, supra, 129 S. Ct. at 1149, quoting Warth, supra, 422 U.S. at 498-99 (original emphasis). The standing requirement prevents plaintiffs from “convert[ing] the judicial process into ‘no more than a vehicle for the vindication of the value interests of concerned bystanders.’” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 473 (1982) (quotation omitted).
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Because it is the party claiming federal jurisdiction, a plaintiff “bears the burden of showing that he has standing for each type of relief sought.” Summers, supra, 129 S. Ct. at 1149. See also D.L. v. Unified School Dist. No. 497, 596 F.3d 768, 775 (10th Cir. 2010) (same). (D. Colo. 2007). A plaintiff’s pleadings must show, inter alia, that “the plaintiff . . . suffered an injury-in-fact – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations and internal punctuation omitted). See also Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81 (2000) (quoting Lujan); Stewart v. Kempthorne, 554 F.3d 1245, 1253 (10th Cir. 2009). “[T]he alleged injury must be stated as factual and not speculative.” Gianzero v. Wal-Mart Stores, Inc., No. 09-CV-656, 2010 WL 1258073, at *1 (D. Colo. 2010).
Prospective injunctive relief is the only remedy available for the ADA claims plaintiffs assert in this action. See 42 U.S.C. 12188(a)(1) and (2). See also Lewis v. Burger King, 361 Fed.Appx. 937, 938, fn. 1 (10th Cir. 2010) (“monetary relief is not available to private litigants under Title III of the ADA”); Lucas v. K-Mart Corporation, 234 F.R.D. 688, 690 (D. Colo. 2006) (“Title III [of the ADA] does not provide a damage remedy for private plaintiffs”). In order to establish standing, each of the plaintiffs in the present case must therefore allege facts establishing that they will sustain injuries in the future. “[A] plaintiff seeking injunctive relief premised upon an alleged past wrong must demonstrate a ‘real and immediate threat’ of repeated future harm to satisfy the injury-in-fact prong of the standing test. This requirement is independent of the substantive requirements for equitable relief.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (emphasis added). See also Tandy, supra, 380 F.3d at 1283-84 (“[t]he threatened injury must be ‘certainly impending’ and not merely speculative;” quoting Laidlaw,
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supra). “[T]he lesson of Lujan [supra] is clear: mere allegations that at some point in the future an injury might occur are not enough to establish standing. What is required is a more particularized allegation showing that an injury will occur at a certain time in the future.” National Coalition of Latino Clergy, Inc. v. Henry, No. 07-CV-613, 2007 WL 4390650, at *3 (N.D. Okla. 2007) (original emphasis).
Accordingly, plaintiffs must allege facts demonstrating that they “will suffer future discrimination at the hands of the defendant” in order to plead an ADA injury-in-fact and establish standing. Gregory v. Otac, Inc., 247 F. Supp. 2d 764, 770 (D. Md. 2003). “[V]iolation of the ADA does not alone establish injury” and, thus, is insufficient to establish standing to file suit for the violation. 247 F. Supp. 2d at 769. For example, one of the plaintiffs in Tandy, supra, alleged that the defendant’s public buses violated the ADA because they were not accessible to people who use wheelchairs, and further alleged that he “desired” to use the buses in the future, but the Court of Appeals for the Tenth Circuit found that these allegations did not “suffice to establish that he is under a real and immediate threat of repeated injury. Therefore, [he] has no standing. . . .” 380 F.3d at 1288.
Plaintiffs’ factual allegations must also satisfy prudential standing requirements. See Warth, supra, 422 U.S. at 498 (“the [standing] inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise”); Edwards v. Doe, 331 Fed. Appx. 563, 567 (10th Cir. 2009) (same). “The prudential strand of the standing doctrine is the recognition that sometimes courts must refuse to hear claims brought by litigants who are not properly situated.” National Coalition, supra, 2007 WL 4390650, at *7.
As set forth below, plaintiffs’ allegations in the present case do not meet the Article III injury-in-fact requirement, and CCDC also lacks prudential standing to assert claims for alleged
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injuries to its members. 1. Plaintiff CCDC has not alleged sufficient facts to demonstrate that it has standing to assert its ADA claims. CCDC is apparently attempting to assert ADA claims on its own behalf and on behalf of
its members. Plaintiffs’ pleadings must separately establish that CCDC has standing to bring each of these types of claims. Laidlaw, supra, 528 U.S. at 180-81. As set forth below, the factual allegations of the Third Amended Complaint do not demonstrate that CCDC has standing to assert the organizational claims it asserts on its own behalf, for alleged injuries to CCDC, or the representational claims it asserts on behalf of its members, for alleged injuries to the members.
a. CCDC lacks Article III standing to bring ADA claims on its own behalf for its alleged injuries.
CCDC seeks injunctive relief under the ADA for injuries that it has purportedly sustained as a result of inaccessible conditions at defendants’ stores. An organization that files suit for an injury suffered by the organization must meet the same requirements for standing that an individual plaintiff must satisfy. Laidlaw, supra, 528 U.S. at 180-81. Accordingly, CCDC bears the burden of alleging sufficient facts to establish, inter alia, that it has suffered an injury-in-fact. Sierra Club, supra, 2007 WL 45985 at *1, fn. 3.
CCDC alleges that it has been injured because the conditions at defendants’ stores have caused it to “devote resources” to filing this lawsuit that “could have been devoted to its other outreach, advocacy, and educational efforts,” thereby “frustrating” CCDC’s ability to achieve its organizational goals. (Third Amended Complaint, supra, at ¶¶ 202-205.) This is not a legally cognizable injury-in-fact for purposes of Article III standing. See Equal Rights Center v. Post Properties, Inc., 657 F. Supp.2d 197, 200 (D.D.C. 2009) (“[o]rganizational plaintiffs . . . will not
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be able to establish the injury necessary for constitutional standing when it consists merely of the impact on its activities caused by their willful diversion of their resources in response to the defendants’ conduct”). See also Buchanan v. Consolidated Stores Corp., 125 F.Supp.2d 730, 737-38 (D. Md. 2001), where the Court found that these allegations do not establish standing on the part of a disability rights organization to assert ADA claims:
ERC appears to allege that it suffered injury as a result of having to divert its resources from other programs to investigate Defendant’s alleged discrimination….Simply alleging [plaintiff] spent money to test or challenge alleged discrimination did not support standing. . . . ERC chose to investigate Defendant’s policy . . . ERC cannot now claim that because it chose to channel its funds this way, Defendant … has caused it injury-in-fact sufficient to satisfy Article III standing requirements. (Emphasis added). Courts have also specifically rejected the contention that conflict between a defendant’s conduct and an organization’s goals is a sufficient injury-in-fact to establish Article III standing on the part of the organization. See Maryland Highways Contractors Association v. State of Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991), cert. denied, 502 U.S. 939 (1991) (“although the Association alleges that its broad purposes have been violated . . . this type of injury is insufficient to support standing”). Moreover, an organization’s goals are not frustrated if it diverts resources in order to file a lawsuit that is intended to accomplish those goals. See Doe v. Obama, 670 F.Supp.2d 435, 441 (D. Md. 2009) (“[t]o the extent that the complaint alleges that NOEL suffers an injury because it is unable to fulfill its purpose… the court does not find this injury sufficient to meet the requirements of standing… NOEL is fulfilling its purpose… by the very act of filing this lawsuit”); Goldstein v. Costco Wholesale Corp., 278 F.Supp.2d 766, 771 (E.D. Va. 2003) (“[w]hen an organization’s primary source of revenue is litigation directed against alleged
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discrimination, it cannot be said that the organization’s participation in such litigation impairs its ability to do its work”). In their Third Amended Complaint, supra, at ¶¶ 196, 206, plaintiffs acknowledge that CCDC has filed and “resolved” other lawsuits for alleged ADA violations, and that it has “devoted resources… to the present lawsuit … to identify and counteract discrimination in the community including that of Defendants.” (Emphasis added.)
If allegations of “diversion of resources” and “frustration” of an organization’s goals were sufficient for Article III standing, an organization could unilaterally create an injury-in-fact in every case by merely filing suit, thereby incurring legal expenses and diverting its resources, and by alleging that the defendants are frustrating its goals. Not surprisingly, courts have refused to find that an organization has Article III standing to pursue ADA claims based on these allegations. See, e.g., Small v. General Nutrition Companies, Inc., 388 F.Supp.2d 83, 94 (E.D.N.Y. 2005) (“[a]n organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit. Were the rule otherwise, a litigant could create injury-in-fact by bringing a case”) (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990), cert. denied, 498 U.S. 980 (1990).
In any event, an organization’s “frustration” and reallocation of resources are not an injury-in-fact, as discussed above, and CCDC’s ADA claim should be dismissed for lack of standing.
b. CCDC lacks standing to bring ADA claims on behalf of its members for injuries to its members.
CCDC is also apparently attempting to assert ADA claims on behalf of unnamed members of the organization who have purportedly encountered inaccessible conditions at defendants’ stores but have not joined this litigation as named plaintiffs. (DN 31, at ¶ 19; DN 73, at ¶208.) Defendants move to dismiss these claims because the factual allegations of the Third
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Amended Complaint do not show that CCDC has standing to bring representational claims for alleged injuries to unnamed members of the organization.
First, an organization does not have standing to sue on behalf of its members unless “its members would otherwise have standing to sue in their own right.” Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977). See also Utah Association of Counties v. Bush, 455 F.3d 1094, 1099 (10th Cir. 2006) (same). The purpose of this requirement is “to weed out [organizations] who try to bring cases, which could not otherwise be brought, by manufacturing allegations of standing that lack any real foundation.” New York State Club Association v. City of New York, 487 U.S. 1, 9 (1988).
In the present case, CCDC does not allege that any of its unnamed members have encountered inaccessible conditions at defendants’ stores and that they intend to return to those stores. It has not even attempted to plead facts establishing an injury-in-fact for any of its unnamed members, and the five named plaintiffs are asserting their own claims in this litigation. “Plaintiffs claiming organizational standing [must] identify members who have suffered the requisite harm.” Summers, supra, 129 S.Ct. at 1152. An organization “cannot…shoehorn an unknown number of supposed but unknown victims [of ADA violations] into their cause of action by the mechanism of associational standing.” Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 884 F.Supp. 487, 489 (S.D. Fla. 1994).
Even if CCDC had sufficiently alleged facts showing that its unnamed members have standing to assert ADA claims, CCDC could not assert claims on their behalf against stores that they never attempted to patronize in the past and do not intend to patronize in the future. CCDC does not have standing to assert ADA claims on behalf of its members against all of defendants’ stores in the absence of allegations showing that its members would have standing to bring those
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claims. See Small, supra, 388 F.Supp.2d at 97-98: [I]f DIA can establish the standing of one of its members… DIA will have established associational standing. Its standing would only be coextensive with the standing that member would enjoy, however…. Thus, the association would only have standing with respect to the specific stores at which the member…has standing.
In Equal Rights Center v. Hilton Hotels Corp., No. 07-1528, 2009 WL 6067336 (D.D.C. 2009), the District Court rejected an organization’s attempt to establish representational standing on behalf of its unnamed members in an ADA case for this reason and held that, “at a minimum, the [plaintiff organization] must state: (1) who these members are; (2) which Hilton hotels they visited; (3) what accessibility barriers they encountered; and (4) whether they would return to that hotel or those hotels were it not for the accessibility barriers.” CCDC has not alleged any of these basic facts with respect to its unnamed members in the present case. It therefore has no standing to assert ADA claims on their behalf.
CCDC’s allegations also fail to establish that it has representational standing to assert ADA claims on behalf of its unnamed members because litigating those claims would unavoidably require the participation of the members. See Sierra Club, supra, 2007 WL 45985, at *1, fn. 4 (“[a]n organization has representational standing to bring suit on behalf of its members if… neither the claim asserted nor the relief requested requires individual participation by its members”); Utah Association, supra, 455 F.3d at 1099 (same) CCDC cannot possibly prove that defendants’ alleged violations of the ADA caused injury to its unnamed members unless they testify, inter alia, that they encountered inaccessible conditions at defendants’ stores and intend to return to those stores. See Concerned Parents, supra, 884 F.Supp. at 488 (holding that the plaintiff organization did not have representational standing because an ADA claim “requires proof as to each individual claimant”); Association for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F.Supp.2d 1353, 1363-64 (S. D. Fla. 2001) (same); Disabled in
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Action of Metropolitan New York v. Trump International Hotel and Tower, No. 01-CIV-5518, 2003 WL 1751785 (S.D. N.Y. 2003) (same).
Finally, CCDC also lacks standing to assert claims on behalf of its unnamed members because “access to the federal courts should be limited to those litigants best suited to assert the claims,” and “the persons best suited to challenge practices impinging on individual rights are the direct victims of the alleged illegal practices.” Mackey v. Nationwide Insurance Companies, 724 F.2d 419, 421-23 (4th Cir. 1984). See also Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979). CCDC has pled no facts demonstrating that it is better suited to pursue these claims than the members whose claims are being asserted. In Buchanan, supra, the Court applied this rule and held that the plaintiff organization did not have associational standing to assert ADA claims on behalf of its unnamed members against a chain of retail stores:
[H]elping a plaintiff to acquire information to bring a lawsuit does not confer standing. Nothing bars the individual plaintiffs or anyone else directly harmed by Defendant’s policy from proceeding with this action….[A] proper remedy may be afforded to any plaintiffs actually injured by Defendant’s practices without ERC as a party. 125 F.Supp.2d at 739 (emphasis added). Accordingly, CCDC lacks standing to assert ADA claims on behalf of its unnamed members, and those claims should be dismissed. 2. The individual plaintiffs have not alleged sufficient facts to demonstrate that they have standing to assert their ADA claims. The five individual plaintiffs in this action have also failed to plead essential facts establishing that they have standing to seek a nationwide injunction against defendants. These plaintiffs have no standing to obtain injunctive relief with respect to any specific store unless they allege that they encountered inaccessible conditions at that store and intend to return to that store. They have made such allegations as to only the three stores identified in their pleadings,
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and, thus, they have not alleged that future injury is “certain and imminent” with respect to defendants’ stores nationwide. See Summers, supra, 129 S. Ct. at 1149 (for Article III standing to assert a claim for injunctive relief, “a plaintiff must show that he is under threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical”).
The five individual plaintiffs have therefore failed to establish that they have standing to obtain nationwide injunctive relief requiring defendants to remedy alleged ADA violations at their stores, as requested in their Third Amended Complaint, and these claims should be dismissed.
B. The Second Claim for Relief should be dismissed in the absence of any viable federal claim.
CCDC, the five individual plaintiffs, and a putative class of Colorado residents also assert claims under the Colorado Civil Rights Act, Colo. Rev. Stat. 24-34-601, et seq. (DN 73, Second Claim for Relief.) The Court should decline to exercise pendent jurisdiction over these state law claims after it dismisses plaintiffs’ ADA claims for lack of standing. The supplemental jurisdiction statute, 28 U.S.C. 1367(a), provides that district courts may exercise jurisdiction over state law claims only in actions in which they “have original jurisdiction.” In the present case, this Court has never had subject matter jurisdiction over plaintiffs’ federal ADA claims, as set forth above, and thus has no discretion to exercise jurisdiction over the state law claims. See Kaw Nation ex rel. McCauley v. Lujan, 378 F.3d 1139, 1142 (10th Cir. 2004) (“because plaintiffs’ complaint does not present a federal question, there was no original jurisdiction in the district court, and hence no basis for supplemental jurisdiction”).
Even before the supplemental jurisdiction statute was enacted, the United States Supreme Court had long recognized that “a case properly belongs in state court… when the federal law
13

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claims have dropped out of the lawsuit in its early stages and only state law claims remain.” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988). This rule is now codified at 28 U.S.C. 1367(c), which provides that “district courts may decline to exercise supplemental jurisdiction over a claim…if…(3) the district court has dismissed all claims over which it has original jurisdiction…” Courts in this Circuit have repeatedly recognized that a plaintiff’s state law claims should be dismissed in these circumstances. See, e.g. Harrison v. University of Colorado Health Sciences Center, 337 Fed. Appx. 750, 755 (10th Cir. 2009).
14

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III. Conclusion The Court should dismiss this action pursuant to Fed.R.Civ.P. 12(b)(1) for lack of
standing. Plaintiffs have not carried their burden of alleging sufficient facts to demonstrate that they have standing to assert their First Claim for Relief, for injunctive relief under the ADA, and the Court should decline to exercise pendent jurisdiction over their Second Claim for Relief, for monetary damages under Colorado state law. Accordingly, the Court should dismiss the Third Amended and Class Action Complaint in its entirety for lack of subject matter jurisdiction.
Respectfully submitted,
/s/ Thomas B. Ridgley Thomas B. Ridgley Mark A. Knueve Richard T. Miller VORYS, SATER, SEYMOUR & PEASE LLP 52 E. Gay Street PO Box 1008 Columbus, Ohio 43215 Gregory A. Eurich OF HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8166 Fax: (303) 975-5464 geurich@hollandhart.com ATTORNEYS FOR DEFENDANTS
15

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CERTIFICATE OF SERVICE I hereby certify that on September 20th, 2010, I have caused to be electronically filed the foregoing with the Clerk of Courts using CM/ECF system which will send notification of such filing to the following e-mail addresses: Kevin W. Williams, Legal Program Director Carrie Ann Lucas Center for the Rights of Parents with Disabilities Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203
/s/ Thomas B. Ridgley Thomas B. Ridgley Mark A. Knueve Richard T. Miller VORYS, SATER, SEYMOUR & PEASE LLP 52 E. Gay Street PO Box 1008 Columbus, Ohio 43215
16
9/20/2010 9227264 V.2

 
 Case 1:09-cv-02757-WYD-KMT Document 87 Filed 03/16/11 USDC Colorado Page 1 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No.09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, et al.,
Plaintiffs, v. ABERCROMBIE & FITCH CO., et al.,
Defendants.
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs, by and through counsel, hereby move for partial summary judgment on the grounds that the steps at the main entrances to the Hollister stores at two local malls violate Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq.
Over five years after passage of the ADA -- with its requirement that all newly constructed public accommodations be accessible to people with disabilities, 42 U.S.C. § 12183(a)(1) -- Defendants constructed mall-based retail stores with two unnecessary and essentially decorative steps at the front entrances. The sole purpose of these steps is to place the customer on a slightly elevated platform, from which the customer must then descend two steps into the store. This construction choice makes the main entrances inaccessible to individuals who use wheelchairs and forces them to use separate side entrances, thus violating the regulation that accessible entrances, where feasible, be those used by the majority of the public.

Case 1:09-cv-02757-WYD-KMT Document 87 Filed 03/16/11 USDC Colorado Page 2 of 11
Congress recognized, in passing the ADA, that “historically, society has tended to isolate and segregate individuals with disabilities,” 42 U.S.C. § 12101(a)(2), and stated that “[p]roviding services in the most integrated setting is a fundamental principle of the ADA.” H.R. Rep. 101485, pt. 2, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 385. Defendants’ newlyconstructed decorative steps and segregated side entrances are a gross violation of the letter and purpose of the ADA.
Movant’s Statement of Material Facts 1. Defendants own, lease and/or operate the Hollister retail stores at the Park Meadows and Orchard Town Center malls in suburban Denver. (These stores will be referred to herein as the “Park Meadows Hollister” and the “Orchard Town Center Hollister,” respectively.) See Defs.’ Responses to Pls.’ First Set of Interrogs., Reqs. for Production, and Reqs. for Admis. (“Defs.’ First Responses,” Decl. of Amy F. Robertson (“Robertson Decl.”), Ex. 1) at 4-5. 2. The Orchard Town Center Hollister was built in or about 2007. Decl. of Megan Streckewald (“Streckewald Decl.”), Ex. 14. 3. The Park Meadows Hollister was built in or about 2002. Id., Exs. 12-13.1

1

See also Defs.’ First Responses at 4-5 (Park Meadows and Orchard Town Center

Hollisters acquired or leased after January 26, 1993); Defs.’ Responses to Pls.’ Second Set of

Interrogs., Reqs. for Production, and Reqs. for Admis. (Robertson Decl. Ex. 2) at 7 (“all

entrances at Hollister stores in Colorado . . . were designed and constructed after January 26,

1993,” and “there were no Hollister stores in Colorado . . . prior to the year 2000.”)

2

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4. Both the Park Meadows Hollister and the Orchard Town Center Hollister have two steps at their front entrances. Id., Exs. 1-5, 7-10. These steps ascend to a porch-like platform, which is at a higher level than the store. Id. ¶ 8.
5. Although both the Park Meadows Hollister and the Orchard Town Center Hollister have level entrances, in each case, the level entrances are to the side of the main entrance. Id., ¶ Exs. 1-5, 7-10.2
6. The design of the inaccessible front entrance and the side entrances demonstrates that the former is intended to be -- and is -- the main entrance used by the majority of people entering each Hollister store. See id.
7. Photographs make clear the visual and practical differences between the inaccessible main entrance -- primary, visually central, invitingly decorated -- and the side entrances -- secondary, visually inferior, virtually hidden:

2

Plaintiffs will assume for purposes of this motion that the side entrances are

accessible. In fact, Plaintiffs allege that the side entrances are often inaccessible. See, e.g., Third

Amd. and Class Action Cmplt. (ECF No. 73) ¶¶ 67, 128, 161.

3

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8. In the photograph above of the Park Meadows Hollister, the (ostensibly accessible) side entrances are on either side of the main entrance. Streckewald Decl. ¶ 7.
9. In both stores, after stepping up the inaccessible steps at the front entrance and entering the store, a customer then steps back down several steps to the sales floor. Streckewald Decl. ¶¶ 8-9.
4

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10. Both the Park Meadows Hollister and the Orchard Town Center Hollister are in malls, and in each case, all of the stores adjacent to the Hollister stores have level entries. Streckewald Decl., ¶¶ 3-4, Exs. 6, 11.
11. The foregoing paragraphs demonstrate that the steps at the Park Meadows Hollister and the Orchard Town Center Hollister are not required to address any pre-existing change in level. Supra ¶¶ 9-10.
12. Defendants concede that the steps at the front entrance are decorative. They “designed porch-like structures at some Hollister stores in order to give those stores the aesthetic appearance of a Southern California surf shack.” Defs.’ First Responses at 8.
13. Because the steps are decorative and not required to address a pre-existing change in level, it was feasible to construct the Park Meadows Hollister and the Orchard Town Center Hollister with an accessible front entrance. Supra ¶¶ 9-12.
Procedural Posture Plaintiffs filed this case on November 24, 2009, alleging a nationwide class action under Title III of the ADA. Defendants have moved to dismiss for lack of standing, but their argument addresses the ability of the named plaintiffs to obtain a nationwide injunction. See generally Defs.’ Mem. in Support of Renewed Mot. to Dismiss for Lack of Standing (ECF No. 76-1). Defendants’ pending motion does not challenge the standing of the individual named plaintiffs to obtain relief as to the stores they patronized, which include the Park Meadows Hollister and the
5

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Orchard Town Center Hollister.3 See Third Amd. Cmplt. ¶¶ 62-108, 111-13, 117-37, 140-53, 156-67, 170-93. Additionally, while this Court stayed discovery pending the resolution of the motion to dismiss (ECF No. 66), the present motion does not require discovery but rather may be resolved on undisputed facts.
ARGUMENT I. Standard of Review
Plaintiffs move for partial summary judgment on the question whether the entrances to the Park Meadows Hollister and the Orchard Town Center Hollister violate Title III of the ADA. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In this case, Plaintiffs’ motion is based on undisputed facts: (1) the fact that both stores at issue in the motion were designed and constructed after January 26, 1993; (2) the fact that both stores have two steps at their main entrances; and (3) the fact that it was feasible to construct both stores without steps at their main entrances. Plaintiffs are entitled to judgment as a matter of law based on the application of Title III and its implementing regulations to those undisputed facts.
The ADA is “a comprehensive piece of civil rights legislation which promises a new future: a future of inclusion and integration, and the end of exclusion and segregation.” H.R.

3

In their reply brief, Defendants make clear that they are only challenging the

individual plaintiffs’ ability to obtain a nationwide injunction. Defs.’ Reply Mem. in Support of

Renewed Mot. to Dismiss for Lack of Standing (ECF No. 82) at 7.

6

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Rep. 101-485, pt. 3, at 26 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 449. In reviewing antidiscrimination laws such as the ADA, the Tenth Circuit has held that a court “‘must be mindful of their remedial purposes, and liberally interpret their provisions to that end.’” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 983 (10th Cir. 2002) (quoting Wheeler v. Hurdman, 825 F.2d 257, 262 (10th Cir. 1987)). II. The Inaccessible Main Entrances Violate Title III of the ADA.
Title III of the ADA prohibits discrimination on the basis of disability in “the full and equal enjoyment” of places of public accommodation such as Hollister retail stores. 42 U.S.C. §§ 12182(a) (“full and equal enjoyment”); 12181(7)(E) (clothing stores are places of public accommodation). The ADA was signed into law on July 26, 1990. 104 Stat. 327. Providing a two and a half year grace period, it requires that facilities designed and constructed for first occupancy after January 26, 1993 be “readily accessible to and usable by individuals with disabilities.”4 42 U.S.C. § 12183(a)(1). Such new construction is required to comply with the Department of Justice Standards for Accessible Design (“DOJ Standards”),5 28 C.F.R. pt 36, app.

4

The only exception is “where an entity can demonstrate that it is structurally

impracticable” to comply. 42 U.S.C. § 12183(a)(1). However, “[f]ull compliance will be

considered structurally impracticable only in those rare circumstances when the unique

characteristics of terrain prevent the incorporation of accessibility features.” 28 C.F.R.

§ 36.401(c)(1). This exception would not apply to the mall-based stores at issue here.

5

The DOJ Standards are also available online at http://www.ada.gov/adastd94.pdf.

The Standards have recently been revised; it is the original 1991 Standards that apply to the

stores at issue here. 28 C.F.R. § 36.406(a)(1) (1991 Standards apply to buildings constructed

before September 15, 2010). The 2010 Standards, while not structured the same as the older

standards, are “intended to achieve the same result as the 1991 Standards” with respect to

(continued...)

7

Case 1:09-cv-02757-WYD-KMT Document 87 Filed 03/16/11 USDC Colorado Page 8 of 11
A (1994). See 28 C.F.R. § 36.406(a)(1) (requiring compliance with the DOJ Standards). Both stores were designed and constructed after January 26, 1993 and thus are required to comply with the DOJ Standards.
The DOJ Standards require that “an accessible entrance must be provided to each tenancy in a facility (for example, individual stores in strip shopping center),” id. § 4.1.3(8)(a)(iii), and -more importantly -- that “[w]here feasible, accessible entrances shall be the entrances used by the majority of people visiting or working in the building,” id. § 4.1.3(8)(a). It was feasible to construct both the Orchard Town Center Hollister and the Park Meadows Hollister so that the front entrance -- the one used by and intended to be used by the majority of the people -- was accessible. As such, Defendants were required to ensure that the main entrances to the two Hollister stores at issue in this motion were accessible. The current, inaccessible, main entrances are in violation of the DOJ Standards. III. Segregated Side Entrances Are Contrary to the Purpose and Intent of the ADA.
In addition to requiring “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation,” 42 U.S.C. § 12182(a), Title III requires public accommodations to provide “[g]oods, services, facilities, privileges, advantages, and accommodations . . . in the most integrated setting appropriate. . . ,” id. § 12182(b)(1)(B) (emphasis added), and prohibits places of public accommodation from providing people with disabilities with “a good, service, facility, privilege, advantage, or
5(...continued) entrances. 75 Fed. Reg. 56,236, 56,320 (Sept. 15, 2010).
8

Case 1:09-cv-02757-WYD-KMT Document 87 Filed 03/16/11 USDC Colorado Page 9 of 11
accommodation that is different or separate from that provided to other individuals,” unless it is necessary to do so, id. § 12182(b)(1)(A)(iii) (emphasis added). “Providing services in the most integrated setting is a fundamental principle of the ADA.” H.R. Rep. 101-485, pt. 2, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 385.
The ADA was enacted at least in part because “historically, society has tended to isolate and segregate individuals with disabilities.” 42 U.S.C. § 12101(a)(2). As Congress recognized with respect to Title II of the ADA, which prohibits discrimination in public services: “‘the goal [is to] eradicat[e] the “invisibility of the handicapped”.’ Separate-but-equal services do not accomplish this central goal and should be rejected.” H.R. Rep. 101-485, pt. 3, at 50 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 473 (internal quotations omitted).
As a result of this history and intent, integration is central to the language of Title III, the statute that the DOJ Standards are intended to implement. “[I]mplementing regulations ‘must be interpreted so as to harmonize with and further and not to conflict with the objective of the statute [they] implement[ ].’” Koch Indus., Inc. v. U.S., 603 F.3d 816, 821 (10th Cir. 2010) (quoting Joy Techs., Inc. v. Sec'y of Labor, 99 F.3d 991, 996 (10th Cir.1996)). The Tenth Circuit “‘will not interpret an agency regulation to thwart a statutory mandate.’” Emery Mining Corp. v. Sec’y of Labor, 744 F.2d 1411, 1415 (10th Cir. 1984) (citation omitted). The DOJ Standards make clear that Defendants’ inaccessible main entrances and segregated side entrances violate the ADA and thus effectuate the Title III integration provision and its purpose.
The Hollister stores at issue in this motion were planned, designed, and built with “separate” and “different” entrances for individuals who use wheelchairs off to the side of the
9

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main entrance. Defendants took presumably level, accessible, pre-existing entrances and

converted them to inaccessible entrances through the introduction of an unnecessary barrier. The

effect of Defendants’ design is separation, difference, and lesser, unequal treatment of customers

who use wheelchairs.

CONCLUSION

For the reasons set forth above, Plaintiffs respectfully request that this Court grant partial

summary judgment in favor of Plaintiffs and hold that the inaccessible front entrances at the

Hollister stores at Park Meadows mall and Orchard Town Center mall violate Title III of the

ADA.

Respectfully submitted,

/s/ Amy F. Robertson Amy F. Robertson Fox & Robertson, P.C. 104 Broadway, Suite 400 Denver, CO 80203 Voice: (303) 595-9700 Facsimile: (303) 595-9705 E-mail: arob@foxrob.com
Kevin W. Williams Carrie Ann Lucas Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Voice: (303) 839-1775 Facsimile: (303) 839-1782 E-mail: kwilliams@ccdconline.org E-mail: clucas@ccdconline.org

Bill Lann Lee Julia Campins Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 476 – 9th Street Oakland, CA 94607 Voice: (510) 839-6824 Fax: (510) 839-7839 E-mail: blee@lewisfeinberg.com E-mail: jcampins@lewisfeinberg.com

Dated: March 16, 2011 10

Case 1:09-cv-02757-WYD-KMT Document 87 Filed 03/16/11 USDC Colorado Page 11 of 11
CERTIFICATE OF SERVICE I hereby certify that on March 16, 2011, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will provide electronic service to the following:
Gregory A. Eurich geurich@hollandhart.com Thomas B. Ridgley tbridgley@vorys.com Mark A. Knueve maknueve@vorys.com
/s/ Caitlin R. Anderson Paralegal
11

 
 Case 1:09-cv-02757-WYD-KMT Document 97 Filed 05/31/11 USDC Colorado Page 1 of 10
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, et al.
Plaintiffs, v. ABERCROMBIE & FITCH CO., et al.,
Defendants.
THE UNITED STATES OF AMERICA’S STATEMENT OF INTEREST ON PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
The United States files this Statement of Interest, pursuant to 28 U.S.C. § 517, because this litigation implicates the proper interpretation and application of title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et. seq., (“ADA), which the Attorney General has statutory authority to enforce. See 28 U.S.C. § 517; 42 U.S.C. §§ 12186-88.
This case raises the important question of the extent to which a place of public accommodation that is constructed after the effective date of the ADA must make its main entrance accessible under title III of the ADA and its implementing regulations. As the author of the implementing regulations in question, and the officer mandated to enforce the ADA, the Attorney General has a clear interest in ensuring their proper implementation and therefore submits this statement of interest to explain its interpretation of the proper application of Department of Justice regulations in this case.

Case 1:09-cv-02757-WYD-KMT Document 97 Filed 05/31/11 USDC Colorado Page 2 of 10
In the pending motion for partial summary judgment (“Motion”), Plaintiffs allege that Defendant clothing stores violate title III of the ADA because the stores’ main entrances are inaccessible to people who use wheelchairs. Defendants dispute which entrances should be considered the main entrances and, alternatively, allege that the ADA implementing regulation at issue is merely “aspirational.” Defendants’ arguments, however, are contrary to both the undisputed facts and the plain language of the ADA implementing regulations. Defendants have failed to meet the ADA requirements for new construction and have violated the ADA’s prohibition against providing separate or different accommodations. Accordingly, for the reasons set forth in greater detail below, the United States respectfully submits that this Court should grant Plaintiffs’ Motion for Partial Summary Judgment.
SUMMARY OF FACTS Defendant Hollister LLC owns and operates two retail clothing stores located in two separate shopping malls near Denver, Colorado. Defendants’ Response in Opposition to Plaintiffs’ Motion for Partial Summary Judgment (hereinafter “Opp.”) at p. 1, ¶ 1. The stores were built in 2002 and 2007, over ten years after the passage of the ADA in 1990. Id. at pp. 1-2, ¶¶ 2-3; see 42 U.S.C. § 12101. Both stores have three entrances on the front wall where the center entrance is “raised on a porch-like platform two steps above ground level” and the other two entrances – which both Plaintiffs and Defendants assume, for purposes of the Motion, are accessible per the ADA1 – are located at ground level on either side of the raised center entrance. Motion at p. 3, fn. 2; Opp. at p. 2, ¶¶ 4-5. Defendants acknowledge that the raised platform design of the 1 Plaintiffs note that they believe the side entrances are actually inaccessible. Motion at p. 3, fn. 2. Based upon the pictures in the Motion and accompanying declarations, the United States also believes that the side entrances are inaccessible.
2

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center entrances is purely decorative.2 Opp. at p. 4, ¶ 12. Moreover, they recognize that it would be physically possible to construct stores that do not have an entrance on a raised platform. Id. at p. 4, ¶¶ 11, 13.
Plaintiffs allege that the center entrances are the main entrances to Defendants’ stores. Motion at p. 1. Because the center entrances are raised two steps above ground level, Plaintiffs allege that they are “inaccessible to individuals who use wheelchairs” and, as a result, patrons in wheelchairs must “use separate side entrances” in violation of the ADA’s implementing regulation “that accessible entrances, where feasible, be those used by a majority of the public.” Id. (referring to 28 C.F.R. Pt. 36, App. A, 4.1.3(8)(a)(iii)). Defendants do not dispute that their stores’ center raised entrances are inaccessible to people who use wheelchairs. Rather, they allege that “the three doors at the front of each store constitute a single, accessible entrance that fully complies” with the ADA and, alternatively, that the regulation requiring that the accessible entrance be the same one used by a majority of the public, is merely “aspirational,” and therefore, impliedly, not mandatory. Opp. at pp. 5-6.
STANDARD OF REVIEW Summary judgment is appropriate where the Court is satisfied that “there is no genuine dispute as to any material fact” and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To deny summary judgment, there must be “sufficient evidence favoring the nonmoving
2 A photograph of one of the stores shows that the raised center entrance has a roof that extends out over the porch-like platform. See Motion at p. 4, photograph. It appears that there are large potted plants on the porch-like platform that extend as high as the roof, large pictures on the wall under the roof, and overhead lighting. Id. In contrast, the entrances on either side of the raised entrance do not have a roof over them. Id. There are no plants, pictures, or dedicated lighting at them. Id.
3

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party for a jury to return a verdict for that party. If the evidence is merely colorable, or
is not significantly probative, summary judgment may be granted.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).
ARGUMENT It is not in dispute that Defendants’ stores were built after the ADA took effect,
and yet the design and construction of the entrances to these two stores violates both the
purpose and the letter of the ADA by unnecessarily relegating people who use
wheelchairs to separate and objectively different entrances than those available for other
people. Title III of the ADA broadly 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.”3 42 U.S.C. § 12182(a). It specifically prohibits providing
accommodations to people with disabilities that are “different or separate” than those
provided to other people except where necessary to match effectiveness of the accommodation provided to others. 42 U.S.C. § 12182(b)(1)(A)(iii).4
Regarding new building construction after January 26, 1993, the ADA mandates
that new facilities must be “readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12183(a)(1).5 All structural elements required to be
3 Defendants do not dispute that their stores are places of public accommodation and subject to title III of the ADA. See 42 U.S.C. § 12181(7)(E); Opp. at p. 4. 4 “It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.” 42 U.S.C. § 12182(b)(1)(A)(iii). 5 The preamble to the 1991 ADA title III regulation provides, “[to be readily accessible to and usable by individuals with disabilities] means, with respect to a facility or a portion of a facility,
4

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accessible must meet the requirements set out in the ADA’s implementing regulations (hereinafter “ADA Standards”)6 “except where an entity can demonstrate that it is structurally impracticable” to do so. Id. (emphasis added). The regulatory language explains that this exception applies “only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features.” 28 C.F.R. § 36.401(c)(1).
With respect to the entrances of newly constructed facilities, the ADA Standards require that:
Where feasible, accessible entrances shall be the entrances used by the majority of the people visiting or working in the building. 28 C.F.R. Pt. 36, App. A, (“ADA Standard”) 4.1.3(8)(a)(iii) (emphasis added). Defendants do not allege that they meet any of the exceptions (in italics above) contained in the preceding provisions to excuse their stores’ different and separate accessible entrances. They do not allege that their different and separate accessible entrances are necessary to match the “effectiveness” of the inaccessible raised center entrance. They do not allege that it is “structurally impracticable” for them to meet the ADA Standards. Nor do they allege that it is infeasible for them to construct stores without raised entrances. Instead, Defendants argue that the stores’ combination of three front entrances should be considered one accessible entrance (Opp. at p. 6) and,
that it can be approached, entered, and exited, and used by persons with disabilities…easily and conveniently…To the extent that a particular type or element of a facility is not specifically addressed by the standards, the language of this section is the safest guide.” 56 Fed. Reg. 144 at 35576 (July 26, 1991). 6 Congress authorized the Department of Justice to promulgate regulations implementing the provisions of title III of the ADA regarding physical structures. See 42 U.S.C. § 12186(b); 28 C.F.R. 36.406(a); 28 C.F.R. Pt. 36, App. A. The regulations, titled “ADA Accessibility Guidelines for Buildings and Facilities,” were revised in 2010 but the parties agree that the original regulations were those in effect at the time Defendants built the stores at issue and therefore are the operative regulations for this matter. See 28 C.F.R. 36.406(a)(1).
5

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alternatively, that the ADA implementing regulation at issue is merely “aspirational” (Opp. at p. 8). These arguments fail for two simple reasons.
First, the ADA Standard at issue is mandatory, not “aspirational” as Defendants allege. See Opp. at pp. 8-9. It requires that:
Where feasible, accessible entrances shall be the entrances used by the majority of the people visiting or working in the building. ADA Standard 4.1.3(8)(a)(iii).7 The ADA Standards define “shall” as denoting “a mandatory specification or requirement.” ADA Standard 3.4. Accordingly, a plain reading of the ADA Standard conveys that it is a mandatory requirement, albeit one conditioned upon feasibility. Cf. United States v. Sprenger, 625 F.3d 1305, 1307 (10th Cir. 2010) (“interpretation of a statute begins with its plain language”). Furthermore, the Department of Justice’s interpretation of its own regulation is entitled to deference, especially where it is based upon a straightforward reading of the regulatory language, as it is here. See Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (U.S. 1984); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (U.S. 1994) (“We must give substantial deference to an agency's interpretation of its own regulations.”). Therefore, Defendants are required to make their main store entrances accessible unless it would not be feasible to do so. Defendants concede that it would be feasible, stating that it would be “physically possible to construct stores . . . that do not have an entry door on a raised platform.”8 Opp. at p. 4, ¶¶ 11, 13. In fact, it appears that Defendants
7 It is not contradictory to require public accommodations to comply with both ADA Standards 4.1.3.8(a)(ii) (“At least fifty percent of all public entrances . . . must be accessible”) and 4.1.3(8)(a)(iii). Read together, they require that at least 50% of the public entrances must be accessible and that the entrance used by the majority of people be included in this 50% unless that is not feasible. 8 Although the term “feasible” is not defined, the phrase “maximum extent feasible” is defined:
6

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deliberately constructed inaccessible entrances since “all of the other stores in the malls
adjacent to the[] stores [at issue] have only level doors along the mall corridor. Opp. at
pp. 5, ¶¶ 10-11.
Second, regardless of whether the three front entrances are together considered
one entrance, as urged by the Defendants (Opp. at p. 6), the numerous differences
between the accessible ground level entrances and inaccessible raised entrances remain
unchanged.9 As shown in the photograph in the Motion (p. 4), the ground level side
entrances are qualitatively “different” from the raised center entrance.10 The raised
center entrance has a roof that extends out over the porch-like platform. Id. There are
large plants on the raised platform, large pictures on the wall under the roof, and
overhead lighting. Id. In contrast, the entrances on either side of the raised entrance do
not have a roof over them. Id. There are no plants, pictures, or dedicated lighting at
them either.11 Id. Defendants’ obvious post hoc rationalization for a design decision
Any alteration to a place of public accommodation . . . shall be made so as to ensure that, to the maximum extent feasible, the altered portions . . . are readily accessible…
* * * The phrase “to the maximum extent feasible” . . . applies to the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with applicable accessibility standards through planned alteration. 28 C.F.R. § 36.402 (emphasis added). 9 Defendants are correct that the definition of “entrance” provides that one entrance may consist of more than one entry door (Opp. at p. 7) but their conclusion is incorrect. The definition reads in part that “[a]n entrance includes the approach walk, the vertical access leading to the entrance platform, the entrance platform itself, vestibules if provided, the entry door(s) or gate(s), and the hardware of the entry door(s) or gate(s).” Even without analyzing the decorative differences between the center entrance and the side entrances, the different elevations of the “entrance platform” and “vestibule” of the middle raised entrance and the ground level side entrances, preclude their being considered together as one entrance under the definition. 10 Defendants’ raised porch-like entrances were designed in order to give the stores “the aesthetic appearance of a Southern California surf shack.” Motion at p. 5, ¶ 12. 11 Had Defendants incorporated the ground level side entrances into the overall design by extending the roof over the side entrances and decorating all three entrances similarly with
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that violates the ADA should be rejected by this Court. Defendants are in violation of 42 U.S.C. § 12182(b)(1)(A)(iii) (prohibiting provision of accommodations to people with disabilities that are “different or separate” from those provided to people without disabilities), and they have failed to meet the ADA requirements for new construction.
CONCLUSION For the foregoing reasons, Defendants are in violation of title III of the ADA and the Court should grant Plaintiffs’ Motion for Partial Summary Judgment.
Respectfully submitted, THOMAS E. PEREZ Assistant Attorney General Civil Rights Division SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General JOHN L. WODATCH Deputy Assistant Attorney General ALLISON NICHOL, Chief RENEE M. WOHLENHAUS, Deputy Chief KATHLEEN P. WOLFE, Acting Special Legal Counsel
plants, etc., their argument that all three entrances are one cohesive entrance might be more persuasive.
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Dated: May 31, 2011

/s/ Nabina J. Sinha NABINA J. SINHA, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 616-2730 Facsimile: (202) 305-9775 nabina.sinha@usdoj.gov

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CERTIFICATE OF SERVICE I hereby certify that on May 31, 2011, a copy of foregoing was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.
/s/ Nabina J. Sinha________________ NABINA J. SINHA Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 616-2730 Facsimile: (202) 305-9775 nabina.sinha@usdoj.gov Counsel for United States
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 Case 1:09-cv-02757-WYD-KMT Document 181 Filed 06/26/12 USDC Colorado Page 1 of 14
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, et al.
Plaintiffs, v. ABERCROMBIE & FITCH CO., et al.,
Defendants.
THE UNITED STATES OF AMERICA’S STATEMENT OF INTEREST ON THE PARTIES’ MOTIONS FOR SUMMARY JUDGMENT
The United States files this Statement of Interest because the pending motions for summary judgment raise questions about the proper interpretation and application of title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (“ADA”), and the regulations implementing that statute. Specifically, this case focuses on whether the raised porches at Defendants’ stores comply with the 2010 ADA Standards for Accessible Design (2010 Standards), which are part of the title III regulations. As the author of the regulations in question (42 U.S.C. § 12186) and the officer mandated to enforce the ADA (42 U.S.C. § 12188), the Attorney General has an interest in ensuring the regulation’s proper implementation and therefore submits this second statement of interest, pursuant to 28 U.S.C. § 517, to explain the application of the Department’s regulations at issue in this case. The United States filed its first statement of interest in this case on May 31, 2011. ECF No. 97.
This Court previously found on partial summary judgment that two of Defendants’ clothing stores violated the ADA because their main entrances were on raised porches, which are

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only reachable by steps. The steps make the raised porches inaccessible and unnecessarily relegate individuals who use wheelchairs to separate entrances. Order 12, Aug. 31, 2011, ECF No. 109. In finding an ADA violation, this Court concluded that the raised porches at Defendants’ stores failed to comply with the requirements for accessible public entrances set forth in § 4.1.3(8) of the 1991 ADA Standards for Accessible Design (1991 Standards), which were in effect at the time of the Court’s earlier decision. Since that ruling, a plaintiffs’ class was certified and Plaintiffs now seek to apply the ruling to Defendants’ remaining 249 stores nationwide that also have entrances on raised porches.
In seeking to vacate this Court’s August 2011 Order, Defendants emphasize that certain language that appeared in the 1991 Standards was changed when the Department of Justice adopted the 2010 Standards. Defendants assert that, as a result of this wording change, the raised porches now comply with the 2010 Standards. Defendants’ argument is misplaced. Many changes were made in the 2010 Standards after a section by section review of the 1991 Standards. The changes clarified and simplified the 2010 Standards as compared to the 1991 Standards. One of the significant goals of the changes was to eliminate duplication or overlap in Federal accessibility guidelines, as well as to harmonize the 2010 Standards with model codes that are the basis of many State and local building codes. See Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. 56,236, 56,245-46 (Sept. 15, 2010).
The Department of Justice’s interpretive guidance accompanying the 2010 Standards specifically states that the revision regarding accessible public entrances is intended to achieve the same result as the 1991 Standards. Consequently, this Court’s holding that the raised porches
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failed to comply with the 1991 Standards compels the conclusion that they also violate the 2010 Standards.
Further, the raised porches at issue in this case function not only as entrances; they also are part of the public retail space of the store. As such, they are required to be accessible, under both the 1991 and 2010 Standards. Throughout this litigation, Defendants have emphasized the importance of the “in-store experience” for the Hollister brand. Defendants have indicated that the unique Hollister store design – including its raised porches, which are covered by a roof, feature a wooden floor, and include furniture and “props” such as lamps, plants, and oars – is at the core of creating this experience. Because the raised porches including these special features and attributes are used as both public retail spaces and public entrances, they must meet the requirements under the ADA for both uses.
DEFENDANTS’ RAISED PORCHES Defendants own and operate clothing stores across the country, 249 of which have raised porches at the entrances. Defendants’ Motion for Summary Judgment, or in the Alternative, to Vacate August 31, 2011 Order (“Defs.’ Mot.”) 1 at ¶1, ECF No. 164; Plaintiffs’ Motion for Summary Judgment and Entry of Injunction and Entry of Judgment (“Pls.’ Mot.”) 3 at ¶5, ECF No. 162. The raised porches are accessed from the exterior of the stores by ascending two steps from ground level. From atop the raised porches, the interior of the store is reached by proceeding through an opening without a door and descending two steps. See Order 3, ECF No. 109. Because one has to negotiate steps to reach them, the raised porches are inaccessible to people with mobility impairments, including those who use wheelchairs. Defendants do not dispute that the raised porches can only be accessed by climbing up or down two steps. Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment and Entry
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of Injunction (“Defs.’ Opp.”) ii, ECF No. 167. At each of the 249 stores in question, two public entrances with doors that are not part of the porch flank the raised porch. Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment or, In the Alternative, to Vacate August 31, 2011 Order and Plaintiffs’ Reply In Support of Motion for Summary Judgment (“Pls.’ Opp.”) 5 at ¶2, 7-10, ECF No. 171; Order 3, ECF No. 109. The parties assume, for purposes of their motions, that these two other public entrances with doors are accessible.1 Order 3 n.2, ECF No. 109.
Defendants use the raised porches as an important part of the Hollister experience, intended to invite customers in to interact with props displayed to advertise their brand and attract customers. Defs.’ Mot. 1 at ¶¶1-2, ECF No. 164. Defendants explain that “the Hollister brand exemplifies a Southern California beach lifestyle” and that the raised porches “create the aesthetic appearance of a Southern California surf shack.” Id. To produce that aesthetic, the raised porches are covered by a roof and have furniture such as chairs and lamps and are decorated with items such as plants and oars. Order 3, ECF No. 109; Pls.’ Opp. 6 at ¶¶3-5, 7-10, ECF No. 171. Marketing images and mannequins dressed in clothes that are for sale within the store are arranged on the raised porches. Pls.’ Opp. 6 at ¶5, 7-10, ECF No. 171. The entrances with doors that flank the raised porches are not similarly covered by a roof and do not have furniture, marketing items, and a wooden floor. Id. at 7-10.
ARGUMENT What was true when this Court granted Plaintiffs’ Motion for Partial Summary Judgment – that Defendants’ stores with raised porches only accessed by steps violate the ADA – remains true today. The revisions to the ADA Standards for Accessible Design do not
1 The United States believes the side entrances with doors are in fact not accessible. U.S. Statement of Interest 2 n.1, ECF No. 97.
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change the outcome here because the 2010 Standards regarding public entrances are intended to achieve the same result as the 1991 Standards.
A. Overview Of The Relevant Statutory And Regulatory Provisions. In 1990, Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). In enacting the ADA, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities.” 42 U.S.C. § 12101(a)(2). Congress further found that “individuals with disabilities continually encounter various forms of discrimination, including . . . the discriminatory effects of architectural . . . barriers, . . . segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.” 42 U.S.C. § 12101(a)(5). Title III of the ADA 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.”2 42 U.S.C. § 12182(a). It requires that new construction, such as Defendants’ stores, be “readily accessible to and usable by individuals with disabilities.”3 42 U.S.C. § 12183(a)(1). Additionally, the ADA prohibits places of public accommodation from providing goods, services, facilities, privileges, and accommodations to people with disabilities that are “different or separate” than those provided to
2 Defendants do not dispute that their stores are places of public accommodation and subject to title III of the ADA. See 42 U.S.C. § 12181(7)(E); Order 3-4, ECF No. 109. 3 The exception to this rule is in situations where it is “structurally impracticable” to do so. 42 U.S.C. § 12183(a)(1). That is not the case here. See Order 3, ECF No. 109.
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other people4 and requires goods, services, facilities, privileges, and accommodations to be afforded to people with disabilities “in the most integrated setting appropriate to the needs of the individual.” 42 U.S.C. § 12182(b)(1).
The ADA directs the Department of Justice to issue regulations implementing title III of the ADA. 42 U.S.C. § 12186(b). It requires that architectural standards included in the regulations be consistent with the minimum guidelines issued by the Architectural and Transportation Barriers Compliance Board (Access Board). 42 U.S.C. § 12186(c). On July 26, 1991, the Department issued rules implementing title II and title III, which are codified at 28 C.F.R. part 35 (title II) and 28 C.F.R. part 36 (title III). Appendix A of the 1991 title III regulation5 contains the ADA Standards for Accessible Design (“1991 Standards”) which were based upon the ADA Accessibility Guidelines (1991 ADAAG) published by the Access Board on the same date. The Access Board published updated ADA Accessibility Guidelines in 2004 (2004 ADAAG) as the culmination of a ten-year long effort to harmonize Federal accessibility requirements with each other and with model codes that are the basis of many State and local building codes. See 36 C.F.R. pt. 1191. In 2010, the Department of Justice revised its title II and title III regulations, which included the adoption of updated accessibility standards. For title III, the new standards (“2010 Standards”) consist of the 2004 ADAAG along with revised Subpart D of 28 C.F.R. part 36. See 28 C.F.R. § 36.104 (defining the term “2010 Standards”). Although
4 Separate or different accommodations are acceptable only where necessary to match effectiveness of the accommodation provided to others. 42 U.S.C. § 12182(b)(1)(A)(iii). Defendants do not argue that this exception applies. 5 This Appendix was republished as Appendix D when the Department revised its ADA title III regulations in 2010.
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the revised regulations took effect on March 15, 2011, covered entities were not required to comply with the 2010 Standards until March 15, 2012. 28 C.F.R. § 36.406.6
Defendants’ stores were constructed after January 26, 1993, and before September 15, 2010, and therefore should have been constructed to comply with the 1991 Standards. 28 C.F.R. § 36.406(a)(1); Defs.’ Opp. 1, ECF No. 167. However, after March 15, 2012, newly constructed facilities subject to the 1991 Standards that contain non-compliant elements, such as Defendants’ raised porches, are required to be made accessible in accordance with the 2010 Standards. 28 C.F.R. § 36.406(a)(5)(ii).
B. The 2010 Standards Regarding Public Entrances Are Intended To Achieve the Same Result As the 1991 Standards Regarding Public Entrances.
As the Court previously held, Defendants’ entrances on raised porches violate the provision of the 1991 Standards governing accessible public entrances. Order 11-12, ECF No. 109; see 1991 Standards, § 4.1.3(8)(a)(iii). That provision specified, among other things, that “[w]here feasible, accessible entrances shall be the entrances used by the majority of people visiting or working in the building.” 1991 Standards, § 4.1.3(8)(a)(iii). Defendants argue that because the language was changed in the 2010 Standards to state “Accessible routes shall coincide with or be located in the same area as general circulation paths,” the raised porches do not violate the 2010 Standards. 2010 Standards, § 206.3 (location of accessible routes); Defs.’ Mot. 13, ECF No. 164; compare 2010 Standards, § 206.4.1 (“Public Entrances”), with 1991 Standards, § 4.1.3(8)(a)(iii).
Defendants’ reading of the 2010 Standards is incomplete because it disregards the Department of Justice’s interpretive guidance accompanying those Standards. The guidance to
6 “Newly constructed or altered facilities or elements . . . that were constructed or altered before March 15, 2012, and that do not comply with the 1991 Standards shall, on or after March 15, 2012, be made accessible in accordance with the 2010 Standards.” 28 C.F.R. § 36.406(a)(5)(ii).
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the 2010 Standards states that the Department intended for the 2010 public entrance provisions to achieve the same result as the 1991 provisions for public entrances. This guidance is entitled to deference because it represents the Department’s authoritative interpretation of its own regulations. As the Supreme Court has held, an agency’s interpretation of its own regulation is controlling unless “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (citation omitted); accord Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (“We must give substantial deference to an agency’s interpretation of its own regulations.”).
The guidance to the 2010 Standards, which was published with the 2010 Standards, addresses substantive changes between the 1991 Standards and the 2010 Standards. 28 C.F.R. pt. 36, App. B (2011) at 816-17. Discussing changes to the provisions regarding public entrances, the guidance to the 2010 Standards explains that the “revision is intended to achieve the same result as the 1991 Standards.” Id. at 822-23. Therefore, applying the 2010 Standards to the entrances on raised porches results in the same consequence as the 1991 Standards – the inaccessible entrances on raised porches violate the Standards.
This outcome is supported not only by the Department’s interpretive guidance regarding the revisions to the 2010 Standards but by the core principles of the ADA. The two types of entrances at issue here provide a very different experience to customers with and without disabilities. The two side entrances with doors for people with disabilities provide an experience devoid of any features found at the inaccessible entrance that is on a raised porch. People who use wheelchairs do not get to experience the Southern California surf shack aesthetic of the raised porches. They do not get to inspect the clothing displayed on the mannequins. They do not get to enter through an opening without a door and see the marketing images displayed on the porches
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or to experience the furniture and “props” located there. Nor are they integrated with other nondisabled customers, who are entering over the porches.
The ADA requires that no one 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.” 42 U.S.C. § 12182(a); see also 28 C.F.R. § 36.201 (regulatory language mirroring the statutory prohibition against discrimination on the basis of disability). To that end, the ADA requires that new construction, such as Defendants’ stores, be “readily accessible to and usable by individuals with disabilities,” except where an entity can demonstrate that it is “structurally impracticable” to do so. 42 U.S.C. § 12183(a)(1). The ADA states that it is discriminatory to provide an individual with a disability with a “good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual . . . with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.” 42 U.S.C. § 12182(b)(1)(A)(iii).
The inaccessible raised porches preclude the full and equal enjoyment of Defendants’ stores by people with mobility impairments, including those people who use wheelchairs. As the Court correctly held, “Defendants have unnecessarily created a design for their brand that excludes people using wheelchairs from full enjoyment of the aesthetic for that brand.” Order 12, ECF No. 109.
C. Raised Porches Are Part Of the Store That Must Be Made Accessible and Located On An Accessible Route.
The raised porches also violate the 2010 Standards because: (1) the porches are part of the store that must be accessible, and (2) they are not located on an accessible route.
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1. Defendants’ raised porches are part of the store and must be accessible.
The raised porches violate the 2010 Standards because they are part of the store itself that must be made accessible. An analysis under the 2010 Standards starts with the requirement that all spaces must be accessible unless specifically exempted. 2010 Standards, § 201.1. The advisory note to Section 201.1 states that “[t]hese requirements are to be applied to all areas of a facility unless exempted . . . .” 2010 Standards, § 201.1 (Advisory). Moreover, where a space contains more than one use, “each portion shall comply with the applicable requirements for that use.” 2010 Standards, § 201.2. The requirements for accessible spaces are set forth in the 2010 Standards at Chapter 3: Building Blocks. Pursuant to Chapter 3, accessible spaces must have compliant floor surfaces, compliant turning space, and compliant clear floor space, among other requirements. 2010 Standards, §§ 301-309.
Defendants admit that the raised porches are used as more than just entrances. They state that the porches are designed to “create the aesthetic appearance of a Southern California surf shack.” Defs.’ Mot. 1 at ¶2, ECF No. 164. They use the porches as interactive advertising to draw the attention of shoppers.7 The raised porches are a unique space that invites customers to pass through, inspect clothes for sale and enjoy furniture and decorations in an interactive way not available to customers viewing a window display. As stated, Defendants’ raised porches are part of the public retail space of the store.
Because the raised porches are used as both public retail space and public entrance, they must meet the requirements for both uses. 2010 Standards, §§ 106.5 (definition for “entrance”
7 Defendants further admit that displays such as those on the raised porches are critical to their business because “[r]ather than advertise through traditional methods, [Defendant] markets virtually exclusively through its in-store experience.” Defs.’ Mot. 1 at ¶1, ECF No. 164.
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and “space”), 201.2. Therefore, the raised porches are required to be accessible as public spaces8 and as public entrances. See 2010 Standards, § 201.1.9
2. Defendants’ raised porches must be on an accessible route. The raised porches must be located on an accessible route. The 2010 Standards require
that all spaces required to be accessible – such as the raised porches – be connected by an
accessible route. 2010 Standards, § 206.2.4. The requirements for accessible routes are set forth
in the 2010 Standards at Chapter 4: Accessible Routes. Pursuant to Chapter 4, Section 403,
accessible routes must have compliant walking surfaces, slopes no greater than 1:20 in the
direction of travel and cross slopes no greater than 1:48, vertical changes in level no higher than
¼”, and sufficient clear width and passing spaces, among other requirements. 2010 Standards,
§§ 401-410. Raised areas such as raised porches are specifically addressed in an advisory note
that states, “Accessible routes must connect all spaces and elements required to be accessible
including, but not limited to, raised areas and speaker platforms.” Id. at § 206.2.4 (Advisory).
The raised porches do not meet any of the exceptions that would allow them to remain
unconnected by an accessible route. See, id. §§ 206.2.3 (listing exceptions for multi-story
8 Although not applicable to Defendants’ raised porches, there are thirteen exemptions to the requirement that public spaces must be accessible. 2010 Standards, § 203. The four exemptions addressing raised spaces are inapplicable here:
• “Raised Areas. Areas raised primarily for the purposes of security, life safety, or fire safety, including but not limited to, observation or lookout galleries, prison guard towers, fire towers, or life guard stands shall not be required to comply with these requirements or to be on an accessible route.” 2010 Standards, § 203.3.
• Raised refereeing, judging, and scoring areas. Id. at § 203.10. • Raised boxing or wrestling rings. Id. at § 203.13. • Raised diving boards and diving platforms. Id. at § 203.14. 9 Defendants’ raised porches are similarly covered by the analogous provisions of the 1991 Standards regarding public and common use areas. See 1991 Standards, §§ 3.5 (defining “public use” as “spaces that are made available to the general public” and “common use” as spaces that are “made available for the use of a restricted group of people”), 4.2.3 (turning space), 4.2.4 (clear floor space), 4.2.4.3 (surfaces), etc.
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facilities), 206.2.4 (listing three general exceptions). However, Defendants’ raised porches are
not located on an accessible route because each is only reachable by steps having a vertical change in level greater than ¼”.10
CONCLUSION Defendants’ raised porches violate both the letter and the spirit of the ADA. They
embody precisely the kind of segregated, second-class treatment of people with disabilities the
ADA was intended to combat. They, in essence, send people with disabilities through the “back”
door.
As already held by this Court, the raised porches do not comply with the 1991 Standards.
The raised porches also do not comply with the 2010 Standards because the revised public
entrance provisions must be read as reaching the same outcome as the 1991 public entrance
provisions. In addition, because the porches, themselves, are part of the store space, they are,
themselves, required to be accessible and to be on an accessible route. For all the foregoing
reasons, Defendants are in violation of title III of the ADA.
Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
EVE L. HILL Senior Counselor to the Assistant Attorney General
GREGORY B. FRIEL, Acting Chief KEVIN J. KIJEWSKI, Deputy Chief SHEILA M. FORAN, Special Legal Counsel
10 Defendants’ raised porches are similarly in violation of the analogous provisions of the 1991 Standards regarding accessible routes to public and common use areas. See 1991 Standards, §§ 4.1.3 (requiring an accessible route connect accessible entrances with all accessible spaces within a facility), 4.3.2 (requiring at least one accessible route from public streets to the accessible building entrance they serve, which “shall, to the maximum extent feasible, coincide with the route for the general public.”), 4.3.3 (width), 4.3.6 (surface textures), 4.3.7 (slope), 4.3.8 (changes in level), etc.
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/s/ Nabina J. Sinha NABINA J. SINHA, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 616-2730 Facsimile: (202) 305-9775 nabina.sinha@usdoj.gov Dated: June 26, 2012
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CERTIFICATE OF SERVICE I hereby certify that on June 26, 2012, a copy of foregoing was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.
/s/ Nabina J. Sinha NABINA J. SINHA Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 616-2730 Facsimile: (202) 305-9775 nabina.sinha@usdoj.gov Counsel for United States
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 Case 1:09-cv-02757-WYD-KMT Document 125 Filed 10/31/11 USDC Colorado Page 1 of 14
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. ABERCROMBIE & FITCH CO., et al., Defendants.
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Plaintiffs, by and through counsel, hereby move for Class Certification. Plaintiffs move pursuant to Fed. R. Civ. P. 23(b)(2) for certification of a nationwide class of Hollister customers who use wheelchairs seeking injunctive relief in the form of an order requiring the removal of the elevated porch-like entrances that this Court has held violate Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. See Order, ECF No. 109.
FACTS Defendant J.M. Hollister LLC owns and operates Hollister retail clothing stores in malls around the country. Defendants “have designed porch-like structures at some Hollister stores in order to give those stores the aesthetic appearance of a Southern California surf shack.” Defs.’ Resps. to Pls.’ First Set of Interrogs., Requests for Production of Documents, and Requests for
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Admission at 8 (Decl. of Amy F. Robertson (“Robertson Decl.”) Ex. 2). These porch-like structures contain steps that render them inaccessible to customers who use wheelchairs. See Declaration of Anita Hansen (“Hansen Dec.”) ¶¶ 3, 6-8, 21-24; Declaration of Julie Farrar (“Farrar Dec.”) ¶¶ 3, 6-12. Defendants have identified approximately 249 Hollister stores around the country that contain these porch-like structures. Robertson Decl. Ex. 3. All of these stores were constructed after January 26, 1993. Defs.’ Supplemental Resps. to Pls.’ Interrogs and Requests for Production of Documents at 4 (Robertson Decl., Ex. 1).
Plaintiffs moved for partial summary judgment as to two stores in Colorado that had porch-like entrances. ECF No. 87. On August 31, 2011, this Court -- after analyzing the entrances, the parties’ arguments, and the Statement of Interest of the Department of Justice -granted Plaintiffs’ motion for partial summary judgment, concluding that these entrances violate the provision of Title III of the Americans with Disabilities Act governing new construction, that is, facilities constructed after January 26, 1993, 42 U.S.C. § 12183(a)(1). ECF No. 109 at 12.
Following this Order, Plaintiffs filed their Fourth Amended and Class Action Complaint (“Fourth Complaint”) which narrowed the case by eliminating all substantive claims except the Title III claim for injunctive relief relating to the porch-like entrances. ECF No. 117. This complaint removed the claims of two plaintiffs as well as any damages claims. Id. Just after filing that complaint, undersigned counsel learned that one of the two Plaintiffs would not be able to participate a class representative. As a result, Plaintiffs sought leave to file a Fifth Amended and Class Action Complaint (“Fifth Complaint”), seeking to substitute another individual who uses a wheelchair – Julie Farrar -- as a plaintiff and class representative. ECF
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No. 123. This motion is still pending. Because Mr. Stapen can no longer serve as a representative plaintiff, this Motion respectfully requests that Ms. Hansen and Ms. Farrar be appointed to that role.
In both the Fourth and Fifth Complaints, Plaintiffs stated that they sought to maintain this action as a class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure with respect to the question of whether the porch-like entrances at Hollister Stores nationwide violate Title III of the ADA. Fourth Complaint ¶ 36; Fifth Complaint ¶ 35. Plaintiffs propose the following class definition:
all people with disabilities who use wheelchairs for mobility who are being or, during the two years prior to the filing of the Complaint in this case, have been denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. store in the United States on the basis of disability because of the existence of an elevated porch-like entrance. (“Proposed Class”). Plaintiffs now seek an Order certifying the Proposed Class pursuant to Rule 23(b)(2), and allowing this case to be maintained as a nationwide class action. Pursuant to D.C.COLO.LCivR 7.1(A), the undersigned conferred with Defendants’ counsel, Mark Knueve, and sought Defendants’ consent to the relief sought herein. Mr. Knueve reported that Defendants would not consent to such relief, but would agree not to oppose the adequacy of Plaintiffs’ counsel under Rule 23(g). Robertson Decl. ¶ 3.
ARGUMENT “A district court may certify a class if the proposed class satisfies the requirements of Rule 23(a) and the requirements of one of the types of classes in Rule 23(b).” DG ex rel.
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Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th Cir. 2010). Here, the Proposed Class meets all of the requirements of Rule 23(a) as well as the requirements of Rule 23(b)(2).
Because the class covers approximately 249 Hollister stores nationwide, there is no question that the class is sufficiently numerous and geographically dispersed that joinder would be impracticable. Plaintiffs challenge a single common barrier – the porch-like entrance with steps -- that affects all wheelchair users in the same way, by rendering that entrance unusable. Named Plaintiffs’ claims are thus both common with and typical of those of the Proposed Class. Finally, Named Plaintiffs have no conflict with the class, and Defendants have indicated that they have no opposition to the adequacy of class counsel, see Robertson Decl. ¶ 3.
Plaintiffs seek certification pursuant to Rule 23(b)(2) because Hollister has “acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Plaintiffs seek only injunctive and declaratory relief.
Plaintiffs will analyze each of the requirements of Rule 23(a) and Rule 23(b)(2) separately below. As an overview, numerous courts have certified classes of individuals with disabilities challenging inaccessible architectural elements, equipment, or facilities.1

1

See, e.g., Armstrong v. Davis, 275 F.3d 849, 868-69 (9th Cir. 2001) (affirming

certification of class of individuals with varying disabilities challenging barriers and policies at

prison facilities in California); Lightbourn v. County of El Paso, Tex., 118 F.3d 421, 426 (5th

Cir. 1997) (affirming certification of a class of blind and mobility-impaired individuals

challenging accessibility of polling places); Park v. Ralph’s Grocery Co., 254 F.R.D. 112, 120-

23 (C.D. Cal. 2008) (certifying class of persons with mobility disabilities suing for alleged

violations of architectural accessibility requirements at a grocery store chain); Californians for

Disability Rights, Inc. v. Cal. Dep’t of Transp., 249 F.R.D. 334, 344-49 (N.D. Cal. 2008)

(certifying class of persons with mobility and/or vision disabilities suing due to barriers along

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I. The Proposed Class Meets the Requirements of Rule 23(a).
A. The Proposed Class Is So Numerous That Joinder Is Impracticable.
Rule 23(a)(1) requires that a class be so numerous that joinder of all members is
impracticable. There are a number of factors that are relevant to this requirement, including the
class size, the geographic diversity of class members, and the relative ease or difficulty in
identifying members of the class for joinder. See Colo. Cross-Disability Coal. v. Taco Bell
Corp., 184 F.R.D. 354, 357 (D. Colo. 1999) (hereinafter “CCDC v. Taco Bell”); 1 William B.
outdoor designated pedestrian walkways throughout the state of California which are owned and/or maintained by the California Department of Transportation); Nat’l Fed’n of the Blind v. Target Corp., 582 F. Supp. 2d 1185, 1199-1203 (N.D. Cal. 2007) (certifying class of persons with visual impairments suing for alleged violations of accessibility requirements at online store); Lucas v. Kmart Corp., 2005 WL 1648182, at *3 (D. Colo. July 13, 2005) (certifying nationwide class of people who use wheelchairs challenging barriers and policies at 1,500 retail stores) & 2006 WL 722163 (D. Colo. Mar. 22, 2006) (certifying damages subclasses in seven states); Moeller v. Taco Bell Corp., 220 F.R.D. 604, 613-14 (N.D. Cal. 2004) (certifying statewide class of people who use wheelchairs challenging barriers and policies at approximately 220 restaurants); Nat’l Org. on Disability v. Tartaglione, 2001 WL 1258089, at *5 (E.D.Pa. Oct. 22, 2001) (certifying class of blind and mobility-impaired individuals and organizations representing same challenging accessibility of voting machines and polling places); Access Now, Inc. v. AHM CGH, Inc., 2000 WL 1809979, at *6 (S.D. Fla. Jul. 12, 2000) (certifying a class of individuals with all disabilities challenging barriers at a chain of health care facilities); Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd., 197 F.R.D. 522, 530 (S.D. Fla. 2000) (same); Colo. Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 363 (D. Colo. 1999) (certifying class of people who use wheelchairs challenging barriers at approximately 42 restaurants); Civic Ass’n of the Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622, 634 (S.D.N.Y. 1996) (certifying class of deaf individuals challenging accessibility of municipal 911 and street alarm box system); Bacal v. Southeastern Pa. Transp. Auth., 1995 WL 299029, at * 6 (E.D. Pa. May 16, 1995) (certifying class of individuals who use paratransit services challenging discrimination in the provision of such services); Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 458 (N.D. Cal. 1994) (certifying statewide class of people who use wheelchairs challenging barriers at a chain of movie theaters).
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Rubenstein, Alba Conte, and Herbert B. Newberg, Newberg on Class Actions (“Newberg”) § 3:6 (4th ed. 2008) (and cases cited therein). These factors show that joinder is impracticable in the present case.
The Proposed Class is large and geographically diverse. In determining class size, the exact number of potential members need not be shown. See, e.g., Joseph v. Gen. Motors Corp., 109 F.R.D. 635, 639 (D. Colo. 1986). Rather the court may make “common sense assumptions” to support a finding that joinder would be impracticable. Civic Ass’n of the Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622, 632 (S.D.N.Y. 1996) (citation omitted); see also 1 Newberg § 3:3 (citing cases). Because this case involves 249 stores nationwide, there is no question that -- as a common sense matter -- the class is numerous and geographically dispersed. Joinder is thus impracticable.
Particularly where, as here, the class consists of persons with disabilities impacted by architectural barriers, joinder is impracticable because it is very difficult to identify individual class members. See, e.g., CCDC v. Taco Bell, 184 F.R.D. at 358-59; 1 Newberg § 3:5 (citing cases). In Arnold v. United Artists Theatre Circuit, Inc., for example, the court held that “by the very nature” of the class of persons with disabilities affected by the defendant’s architectural barriers, its members were “unknown” and could not be “readily identified” and thus joinder of class members was impracticable. 158 F.R.D. 439 (N.D. Cal.), modified, 158 F.R.D. 439, 448 (1994).
For these reasons, the class is so numerous that joinder is impracticable and satisfies Rule 23(a)(1).
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B. Class Members Share Common Issues of Law and Fact Rule 23(a)(2) requires that there be questions of law or fact common to the class. This does not mean that every issue must be common to the class so long as the claims of the plaintiffs and other class members are based on the same legal or remedial theory. Joseph, 109 F.R.D. at 639-40. “Where a class of persons sharing a common disability complain of the identical architectural barrier based on the same alleged violations of law, commonality is unquestionably established.” CCDC v. Taco Bell, 184 F.R.D. at 359. As the Supreme Court recently clarified, what matters is “‘the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.’” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (emphasis in original) (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L. Rev. 97, 132 (2009)); see also J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999) (holding that commonality is satisfied where “the putative class . . . share[s] a discrete legal question of some kind”). Given that Plaintiffs challenge only a single barrier that is materially similar if not identical in each of the 249 stores included in the class definition and do so under a single legal theory, the common questions are all capable of being -- and indeed likely already have been -- answered on a classwide basis. The primary common question is whether Hollister’s porch-like entrances violate the new construction provisions of Title III of the ADA, 42 U.S.C. § 12183(a)(1). In its September 31 Order, this Court answered that question in the affirmative with respect to two stores in Colorado. ECF No. 109 at 12. There is no material difference between the porch-like entrances
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at those two stores and those at the remaining stores listed in Exhibit 1, all of which Defendants admit have the porch-like entrances and all of which they admit were constructed after January 26, 1993.1 They will thus all be subject to the same analysis as set forth in this Court’s order granting Plaintiffs’ motion for partial summary judgment.
While this Court has not yet addressed the appropriate remedy for this violation, Title III’s remedial provision requires that where, as here, a violation of 42 U.S.C. § 12183(a) is found, see ECF No. 109 at 12, “injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this subchapter.” 42 U.S.C. § 12188(a)(2). Thus this Court can rule on liability and remedy based on two questions common to the entire class.
C. The Claims of Named Plaintiffs Are Typical of the Claims of the Class. As the Supreme Court recently reiterated, “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” Wal-Mart, 131 S. Ct. at 2551 n.5 (citation omitted). Typicality exists where the harm or threat of harm to the Named Plaintiffs is similar to that of the class. D.G. ex rel. Stricklin, 594 F.3d at 1195. In this case, the Named Plaintiffs and the members of the class have disabilities which, although not identical, require the use of a wheelchair or scooter for mobility. Thus, the effect of the disability is shared by all class members. Further, the representative plaintiffs contest the legality of architectural barriers under the same statutes as the class. [T]herefore . . . the claims of the representative plaintiffs are typical of the class.

1

Indeed, because the Court’s September 31 Order was on a Motion for Partial Summary

Judgment, there were no disputed facts resolved by the Court in reaching its legal conclusion

regarding the stores’ ADA violation.

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CCDC v. Taco Bell, 184 F.R.D. at 360; see also Lucas v. Kmart Corp., 2005 WL 1648182, at *3 (D. Colo. July 13, 2005) (holding that where the focus of an ADA lawsuit is final injunctive relief against the defendant benefitting the class as a whole, “the prerequisites of commonality and typicality are met”); Arnold, 158 F.R.D. at 450 (“Indeed, in a public accommodations suit such as this one where disabled persons challenge the legal permissibility of architectural design features, the interests, injuries, and claims of the class members are, in truth, identical such that any class member could satisfy the typicality requirement for class representation.”)
Here, the Named Plaintiffs are individuals with disabilities who use wheelchairs, who attempted to patronize Defendants’ Hollister stores that featured porch-like structures and who, because of those porch-like structures, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of those Hollister stores. See Hansen Dec. ¶¶ 3, 6-35; Farrar Dec. ¶¶ 3, 6-20. Plaintiff CCDC is a non-profit disability rights organization whose membership includes individuals with disabilities who use wheelchairs (including Named Plaintiffs), who were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of Hollister stores because of the porch-like structures. See Decl. of Julie Reiskin (“Reiskin Decl.”) ¶¶ 3-4; Hansen Decl. ¶ 4; Farrar Decl. ¶ 4. Named Plaintiffs’ claims relating to the porch-like structures at Defendants’ Hollister stores are typical, if not identical, to the claims of the Proposed Class members.
D. Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Class.
“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor,
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521 U.S. 591, 625-26 (1997) (citation omitted). In short, the question is “whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Id. at 626 n.20 (citation omitted). Adequate representation is usually presumed in the absence of contrary evidence. Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 386 (D. Colo. 1993) (quoting 2 Newberg § 7.24 at 7-80 to -81).
Here Plaintiffs, like the members of the Proposed Class, seek remedies for the steps that pose barriers to their full and equal enjoyment of the 249 Hollister stores at issue. There are neither unique facts nor unique defenses relevant to Plaintiffs’ claims that would put them in conflict with the Proposed Class. In addition, Plaintiffs and their counsel have prosecuted the interests of the class vigorously, including opposing two motions to dismiss and successfully moving for partial summary judgment.
CCDC is also an adequate representative plaintiff. This Court has previously held that CCDC alleged sufficient facts to support associational standing. Order, ECF No. 94, at 8-11; see also Reiskin Decl. ¶ 5. Under these circumstances, several courts have held that organizations of individuals with disabilities can serve as representative plaintiffs. See, e.g., Civic Ass’n of the Deaf, 915 F. Supp. at 633; E. Paralyzed Veterans Ass’n, Inc. v. Veterans’ Admin., 762 F. Supp. 539, 547 (S.D.N.Y. 1991).
As indicated above, Defendants have courteously agreed that they do not oppose the adequacy of Plaintiffs’ counsel. Robertson Decl. ¶ 3. For the Court’s information, Plaintiffs’ counsel have been held by the United States District Court for the District of Colorado to be able
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adequately to represent a class of persons with mobility impairments bringing suit under Title III of the ADA. Robertson Decl. ¶ 4 (Among many other cases, Kevin W. Williams, Amy F. Robertson, and Bill Lann Lee were approved as class counsel in Lucas v. Kmart Corp.; Mr. Williams and Ms. Robertson in CCDC v. Taco Bell). II. The Proposed Class Satisfies Rule 23(b)(2) Because Defendants Have Acted on
Grounds Generally Applicable to the Class, Making Classwide Injunctive Relief Appropriate. A class is proper under Rule 23(b)(2) if the party opposing the class “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” and the representatives are seeking “final injunctive relief or corresponding declaratory relief.” “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart, 131 S. Ct. at 2557. Named Plaintiffs here seek a single injunction ordering the removal of the stepped entrances at Hollister stores nationwide; that injunction would provide relief to all members of the class. Certification pursuant to Rule 23(b)(2) is thus appropriate. Indeed, “[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of Rule 23(b)(2) classes. Amchem Prods., Inc. v. Windsor, 521 U.S. at 614 (quoting Adv. Comm. Notes, 28 U.S.C. App., at 697); see also Wal-Mart, 131 S. Ct. at 2558 (Rule 23(b)(2) “reflects a series of decisions involving challenges to racial segregation -- conduct that was remedied by a single classwide order”). Cases such as this one
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“provide[ ] a paradigm for class certification under Rule 23(b)(2) . . . .” Lucas, 2005 WL 1648182, at * 2; see also Arnold, 158 F.R.D. at 452.
“A class action in which all members of the class complain of the identical architectural barrier necessarily involves acts that are generally applicable to the class.” CCDC v. Taco Bell, 184 F.R.D. at 361 (citations omitted). The Advisory Committee Notes to the 1966 amendment to Rule 23 demonstrate that subdivision (b)(2) was intended to reach precisely the type of class proposed here: “Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.” The single architectural barrier at issue in this case involves acts generally applicable to the class, and can be remedied with a single injunction. Certification pursuant to Rule 23(b)(2) is thus appropriate.
CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Court certify the following class under Rule 23(b)(2): all people with disabilities who use wheelchairs for mobility who are being or, during the two years prior to the filing of the Complaint in this case, have been denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. store in the United States on the basis of disability because of the existence of an elevated porch-like entrance.
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Plaintiffs further request that CCDC, Ms. Hansen and Ms. Farrar be appointed representative plaintiffs and that the counsel listed below be appointed class counsel.

Dated: October 31, 2011

Respectfully submitted,
/s/ Amy F. Robertson Amy F. Robertson Fox & Robertson, P.C. 104 Broadway, Suite 400 Denver, Colorado 80203 Voice: (303) 595-9700 Facsimile: (303) 595-9705 E-mail: arob@foxrob.com
Kevin W. Williams Andrew C. Montoya Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, Colorado 80203 Phone: (303) 839-1775 Facsimile: (303) 839-1782 E-mail: kwilliams@ccdconline.org E-mail: amontoya@ccdconline.org
Bill Lann Lee Julia Campins Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 476 - 9th Street Oakland, CA 94607 Voice: (510) 839-6824 Facsimile: (510) 839-7839 E-mail: blee@lewisfeinberg.com E-mail: jcampins@lewisfeinberg.com
Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on October 31, 2011, a copy of the foregoing document and the Declarations of Amy F. Robertson, Julie Reiskin, Anita Hansen, and Julie Farrar were filed with the Clerk of Court using the CM/ECF system, which will provide electronic service to the following:
Gregory A. Eurich geurich@hollandhart.com Thomas B. Ridgley tbridgley@vorys.com Mark A. Knueve maknueve@vors.com
/s/ Caitlin R. Anderson Caitlin R. Anderson Paralegal Fox & Robertson, P.C.
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 Case 1:09-cv-02757-WYD-KMT Document 149 Filed 12/08/11 USDC Colorado Page 1 of 18
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No.09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, ANITA HANSEN, and JULIE FARRAR,
Plaintiffs, on behalf of themselves and all others similarly situated, v. ABERCROMBIE & FITCH CO., ABERCROMBIE & FITCH STORES, INC, and J.M. HOLLISTER LLC, d/b/a HOLLISTER CO.
Defendants.
FIFTH AMENDED AND CLASS ACTION COMPLAINT
Plaintiffs, Colorado Cross-Disability Coalition, Anita Hansen, and Julie Farrar, by and through undersigned counsel, hereby submit this Fifth Amended and Class Action Complaint, for violations of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq.
INTRODUCTION 1. Almost twenty years after the passage of the ADA, Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc, J.M. Hollister LLC, d/b/a Hollister Co. (“Defendants”), all related companies and expanding clothing retailers with stores throughout the United States and beyond, discriminate against individuals who use wheelchairs for mobility. Defendants design, construct and operate stores that provide separate, segregated and unequal access and services to

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customers who use wheelchairs. 2. The federal ADA was enacted in 1990, “[t]o establish a clear and comprehensive
prohibition of discrimination on the basis of disability.” The ADA prohibits public accommodations, like the stores Defendants own and operate, from providing individuals who use wheelchairs with separate or unequal benefits and services.
3. According to Abercrombie & Fitch Co.’s March 2009 form 10-K submitted to the federal Securities and Exchange Commission and available on its website:
The Company’s in-store marketing is designed to convey the principal elements and personality of each brand. The store design, furniture, fixtures and music are carefully planned and coordinated to create a shopping experience that reflects the Abercrombie & Fitch, abercrombie . . . [or] Hollister . . . lifestyle. . . .
Every brand displays merchandise uniformly to ensure a consistent store experience, regardless of location. Store managers receive detailed plans designating fixture and merchandise placement to ensure coordinated execution of the Company-wide merchandising strategy. 4. That “store experience” and “lifestyle” exclude people who use wheelchairs. Defendants’ “coordinated” store layouts are not accessible to individuals who use wheelchairs. 5. Defendants created and designed all Hollister Co. stores, one of Defendants’ store brands, after the passage of and the effective date of the ADA. In newly designed and constructed stores or those that have been altered after the passage of the ADA, such stores must be “readily accessible to and usable by” individuals who use wheelchairs. Hollister Co. stores throughout the United States are not accessible to individuals who use wheelchairs. 6. Defendants discriminate against customers who use wheelchairs by designing and constructing stairs at Hollister Co. stores’ main entrances throughout the United States and
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forcing individuals who use wheelchairs to enter at a different, separate and segregated location. 7. Anita Hansen and Julie Farrar (“Individual Plaintiffs”) both use wheelchairs, and
Colorado Cross-Disability Coalition (“CCDC”) is a disability rights advocacy organization that advocates for individuals who use wheelchairs. Each Individual Plaintiff is a member of CCDC. CCDC and the Individual Plaintiffs have been harmed by Defendants’ discrimination and seek a court order directing Defendants to comply with the ADA and to pay Plaintiffs’ reasonable attorneys’ fees and costs.
8. Plaintiffs seek to send a clear message that segregated services and inaccessible public accommodations are no longer permitted under the law and can no longer be tolerated.
9. Because Defendants’ Hollister Co. stores are designed and constructed uniformly with respect to elevated entrance designs in ways that violate the ADA, Plaintiffs seek to certify a class action pursuant to Fed. R. Civ. P. 23.
JURISDICTION 10. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343. 11. Venue is proper within this District pursuant to 28 U.S.C. § 1391.
PARTIES 12. Colorado Cross-Disability Coalition (“CCDC”) is a Colorado non-profit corporation whose members are persons with disabilities and their non-disabled allies. 13. Anita Hansen is substantially limited in the major life activity of walking and uses a motorized wheelchair for mobility. Anita Hansen is a CCDC member.
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14. Julie Farrar is substantially limited in the major life activity of walking and uses a manual wheelchair for mobility. Julie Farrar is a CCDC member
15. Defendant Abercrombie & Fitch Co. (“A&F Co.”) is a corporation, incorporated in Delaware in 1996. A&F Co. is a retailer that operates stores throughout the United States and websites selling casual sportswear apparel under Abercrombie & Fitch, abercrombie, Hollister and other brands. A&F Co.’s principal place of business located at 6301 Fitch Path, New Albany, OH 43054. On information and belief, A&F Co. is the parent company for the other defendants in this case, and each of these defendants operates stores throughout the United States.
16. Defendant Abercrombie & Fitch Stores, Inc. (“A&F Stores”) is a subsidiary of A&F Co. A&F Stores operates clothing stores throughout the United States. A&F Stores operates stores under the names “Abercrombie & Fitch” and “abercrombie.” A&F Stores is a corporation, with its principal place of business located at 6301 Fitch Path, New Albany, OH 43054. A&F Stores is the parent company for J.M. Hollister LLC, d/b/a Hollister Co. (“Hollister”).
17. J.M. Hollister LLC, d/b/a Hollister Co. (“Hollister”) is a subsidiary of A&F Stores. Hollister operates clothing stores throughout the United States, including in Colorado. The stores in Colorado operate under the name “Hollister Co.” Hollister is a limited liability company, with its principal place of business located at 6301 Fitch Path, New Albany, OH 43054. Hollister operates stores throughout the United States.
CLASS ACTION ALLEGATIONS
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18. Defendants have discriminated against and continue to discriminate against customers who use wheelchairs as more fully set forth in this Complaint.
19. Defendants own and operate Hollister Co. stores throughout the United States that discriminate against individuals who use wheelchairs in violation of the ADA and in Colorado that violate the CADA.
20. Defendants have designed and constructed porch-like entrances at their Hollister Co. stores throughout the United States. Many if not most of these entrances include steps from the exterior to the porch, and from the porch to the interior of the store. These elevated Porch Entrances (“Elevated Entrances”) are not accessible to individuals who use wheelchairs.
21. The Elevated Entrances in Hollister Co. stores throughout the United States are designed to be the main public entrance to those stores.
22. In Hollister Co. stores throughout the United States that have Elevated Entrances, Defendants have designed and constructed a separate segregated entrance for individuals who use wheelchairs.
23. The separate segregated Elevated Entrances at Hollister Co. stores throughout the United States are not readily accessible to and usable by individuals who use wheelchairs.
24. The separate segregated Elevated Entrances at Hollister Co. stores throughout the United States do not provide individuals who use wheelchairs with the full and equal enjoyment of Hollister Co. stores’ goods, services, facilities, accommodations and privileges.
25. All of Hollister’s stores were designed and constructed after January 26, 1993. 26. Hollister Co. stores throughout the United States that have Elevated Entrances do
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not provide signage at the entrance directing individuals who use wheelchairs to the separate segregated entrances.
27. In Hollister’s stores with Elevated Entrances, customers who use wheelchairs must seek out and find a door opening mechanism that is not located at the main public entrance.
28. On information and belief, Defendants intend to continue designing and constructing stores with Elevated Entrances used by the general public.
29. Within two years prior to the filing of the original Complaint, each of the Individual Plaintiffs has experienced some or all of the accessibility barriers described in this Fifth Amended and Class Action Complaint at Defendants’ Hollister Co. stores.
30. On information and belief, class members have experienced the same barriers to full accessibility that the Individual Plaintiffs and CCDC members who use wheelchairs have experienced exist in Defendants’ stores throughout the United States.
31. Defendants have been involved in lawsuits before the instant case regarding claims of ADA violations and a lack of accessibility for individuals who use wheelchairs.
32. Defendants maintain and/or engage in policies, practices and procedures that violate the ADA.
33. Class members have been damaged by Defendants’ failure to comply with the ADA.
34. Plaintiff Hansen, Plaintiff Farrar and Colorado Cross-Disability Coalition (“Proposed Class Representatives”) seek to maintain this action as a class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure with respect to the question whether the
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Elevated Entrances at Hollister Stores nationwide violate Title III of the ADA. 35. The class consists of all people with disabilities who use wheelchairs for mobility
who, during the two years prior to the filing of the Complaint (ECF # 1, filed November 24, 2009) in this case, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. store in the United States on the basis of disability because of the presence of an Elevated Entrance.
36. The class identified is believed to consist of hundreds of members, and joinder of all such class members in this lawsuit is impracticable.
37. The question of the compliance of the Elevated Entrances with Title III of the ADA is common to the class.
38. The claims of the Proposed Class Representatives are typical of the claims of the class. The Individual Plaintiffs -- like all other members of the class -- each use a wheelchair for mobility and claim that Defendants have violated the ADA by constructing stores with Elevated Entrances after the effective date of the ADA.
39. The Proposed Class Representatives will fairly and adequately protect the interests of the class because they have retained counsel with extensive experience in litigation, including class action litigation.
40. The Proposed Class Representatives have no interests that conflict in any way with those of the class.
41. This action may be maintained pursuant to Rule 23(b)(2), because Defendants’ actions in constructing Elevated Entrances at Hollister stores are actions that apply generally to
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the class. Injunctive or declaratory relief, therefore, is appropriate respecting the class as a whole.
INDIVIDUAL ALLEGATIONS 42. Plaintiffs reallege and reincorporate by reference all other allegations in this Complaint herein. 43. Plaintiff Anita Hansen has visited Defendants’ stores and experienced the accessibility barriers identified in this Complaint. As set forth below, Plaintiff Hansen will go to Defendants’ stores if Defendants remedy the ADA violations identified in this complaint. 44. Plaintiff Hansen visits malls and other retail shopping complexes, including malls and shopping complexes in which Defendants maintain Hollister Co. stores approximately six to eight times per year in order to shop for merchandise for herself, her friends and relatives. 45. Plaintiff Hansen visited Defendants’ Hollister store, located in the Orchard Towne Center at 14697 Delaware Street, Westminster, Colorado, on July 30, 2010, and experienced the accessibility barriers identified in this Fourth Amended and Class Action Complaint. 46. When Plaintiff Hansen arrived at the Orchard Towne Center Hollister store, she did not see a way to access the store right away because there are steps at the front entrance. The steps led to a platform with chairs and items displayed on it and appeared to be the only entrance to the store. 47. Because Plaintiff Hansen uses a wheelchair, the steps prohibited Plaintiff Hansen from accessing the store.
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48. There was no sign at the entrance where the steps are that directed Plaintiff Hansen to an accessible entrance.
49. Eventually, Plaintiff Hansen did find what looked like shutters with a small button next to them. This button was located to the left of the main entrance approximately ten feet and was difficult to see.
50. When Plaintiff Hansen approached the button and pressed it, a door (which looks like shutters) was locked.
51. Someone outside the store who did not appear to be an employee asked Plaintiff Hansen if she needed to get in the store. Plaintiff Hansen told him, “Yes.”
52. The entrance to the store was very narrow, but Plaintiff Hansen was able to enter. 53. Plaintiff Hansen entered on the young women’s side of the store. 54. Looking at the entrance from inside the store, Plaintiff Hansen observed steps coming down from the entrance platform into the young women’s section. 55. The only way to get to the young men’s side of the store was to go all the way into the store and cross over. She had to ask employees to move tables, chairs, and other heavy objects so Plaintiff Hansen could have a clear path for her wheelchair. 56. This store was one of the most difficult stores Plaintiff Hansen had been in with respect to accessibility. 57. Non-disabled customers could access either side of the store from the elevated entrance with stairs. 58. Plaintiff Hansen was frustrated and humiliated throughout this shopping
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experience by the lack of accessibility. 59. Plaintiff Hansen went to the Hollister store at Park Meadows Mall at 8401 South
Park Meadows Center Drive, Lone Tree, Colorado on August 19, 2009, and experienced accessibility barriers identified in this Complaint.
60. Plaintiff Hansen went to this store to return the shirts she had purchased previously at the Orchard Towne Center Hollister store.
61. This store design and layout were similar to the store in the Orchard Towne Center.
62. The front entrance to this store had steps blocking access for Plaintiff Hansen. 63. There was no sign at the front entrance directing a person in a wheelchair how to access the store. 64. Off to the right of the entrance porch, there was a small, hard-to-see button next to what looked like shutters. 65. Plaintiff Hansen pressed the button, and the door opened automatically in the direction of her wheelchair. 66. Plaintiff Hansen had to back up quickly in her wheelchair to avoid being hit by the opening door. 67. The entrance was very narrow and difficult to get through in Plaintiff Hansen’s wheelchair. 68. Plaintiff Hansen entered into the young men’s side of the store. 69. Steps that led from the entrance porch to the young women’s side of the store
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made it impossible for Plaintiff Hansen to access that side of the store in her wheelchair. 70. As soon as Plaintiff Hansen entered the store, there was a table of merchandise
that blocked her entrance. 71. No employee offered to help move the table, so Plaintiff Hansen had to get past
the table by pushing it out of the way with her motorized wheelchair. 72. In March of 2010, while shopping, Plaintiff Hansen went to the Hollister store in
the Parkdale Mall, located at 6155 Eastex Freeway, Beaumont, Texas 77706. 73. Because of the barriers to accessibility, Plaintiff Hansen had experienced earlier
at the two previous Hollister stores, she was deterred from entering the store. 74. Plaintiff Hansen will shop at Defendants’ Hollister stores, including the ones she
shopped at or attempted to shop at, if Defendants remedy the inaccessibility. Plaintiff Hansen will visit Defendants’ other Hollister stores in the Denver metropolitan area and elsewhere when she travels if Defendants make their stores accessible.
75. Plaintiff Hansen will return to the stores she has previously visited periodically to test whether accessibility barriers still exist.
76. Until the accessibility barriers are remedied, other than visiting Hollister stores to test accessibility, Plaintiff Hansen is and will continue to be deterred and discouraged from going to Defendants’ Hollister stores.
77. Plaintiff Julie Farrar has visited Defendants’ Hollister Co. stores and experienced the accessibility barriers identified in this Complaint.
78. Plaintiff Farrar visits malls and other retail shopping complexes, including malls
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and shopping complexes in which Defendants maintain Hollister stores, approximately twenty times per year in order to shop for merchandise for himself, friends and relatives.
79. Plaintiff Farrar has visited Defendants’ Hollister store, located within the Orchard Towne Center, 14697 Delaware Street, Westminster, Colorado, with her daughter on numerous occasions, and encountered the Elevated Entrance.
80. Neither Plaintiff Farrar nor her daughter noticed an accessible entrance to the Hollister store.
81. Believing that she would not be able to enter Defendants’ Hollister store, Plaintiff Farrar and her daughter were deterred from entering the store, and moved on to another store.
82. Plaintiff Farrar has also visited Defendants’ Hollister Store, located within the Park Meadows Mall, 8401 South Park Meadows Center Drive, Lone Tree, Colorado, with her daughter on numerous occasions, and encountered the Elevated Entrance.
83. Neither Plaintiff Farrar nor her daughter noticed an accessible entrance to the Hollister store.
84. Believing that she would not be able to enter Defendants’ Hollister store, Plaintiff Farrar and her daughter were deterred from entering the store, and moved on to another store.
85. Plaintiff Farrar intends to shop and will shop at Defendants’ Hollister stores, including the stores located in the Orchard Towne Center and Park Meadows Mall, if Defendants remedy the barriers she encountered and others like them.
86. Plaintiff Farrar intends to and will visit Defendants’ other Hollister stores in the Denver metropolitan area and elsewhere when she travels if Defendants remedy the accessibility
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barriers similar to those she experienced. 87. Plaintiff Farrar intends to and will return to the Hollister store she visited to test
whether the accessibility barriers have been remedied. 88. Other than to determine if Hollister stores are accessible, Plaintiff Farrar is and
continues to be deterred and discouraged from going to Defendants’ Hollister stores. 89. Plaintiff Farrar was humiliated and frustrated by her experience trying to enter
Defendants’ Hollister stores. 90. Plaintiff Farrar would like to and will access Defendants’ stores in the future if
Defendants remedy the ADA violations identified in this Complaint. 91. Plaintiff CCDC is a membership organization having members who use
wheelchairs. 92. As a result of Defendants’ failures to make their stores accessible, CCDC has
investigated and is investigating complaints by individuals who use wheelchairs about accessibility at Defendants’ stores.
93. CCDC has filed two prior lawsuits against Defendant A&F Stores regarding wheelchair accessibility in two specific Abercrombie & Fitch Colorado stores, owned and operated by A&F Stores. These cases were resolved.
94. CCDC has members who use wheelchairs who have experienced and/or are likely to experience barriers to accessibility at Defendants’ stores.
95. CCDC’s purpose is to work for systemic change that promotes independence, self-reliance, and full inclusion for people with disabilities in the entire community. As part of
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that purpose, CCDC seeks to ensure that persons with disabilities have access to -- and do not encounter discrimination in – the goods, services, facilities, privileges, advantages, or accommodations provided by places of public accommodation.
96. As set forth in this Complaint, Defendants’ discrimination has been and continues to be a barrier to the full participation of persons with disabilities and, therefore, frustrates CCDC’s ability to achieve full inclusion for persons with disabilities.
97. CCDC’s members and their spouses, friends, relatives, and associates have been harmed and will continue to be harmed by Defendants’ discrimination.
98. The elimination of discrimination, such as that of Defendants, and the integration of persons with disabilities into all aspects of community life are at the core of CCDC’s organizational purpose.
99. The participation of individual CCDC members in the lawsuit is not required either to resolve the claims at issue or to formulate relief.
CLAIM FOR RELIEF (On behalf of CCDC, the Class Representatives, and all others similarly situated for violations of
Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq.) 100. Plaintiffs reallege and reincorporate by reference the remainder of the allegations set forth in this Complaint as if fully set forth herein. 101. Defendant A&F Stores owns and operates Hollister Co. stores throughout the United States. 102. A&F Co. is the parent company of A&F Stores. 103. A&F Stores is the owner of the subsidiary Hollister.
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104. A&F Stores’ Hollister Co. stores are places of public accommodation under 42 U.S.C. § 12181(7)(E).
105. All Hollister Co. stores were designed and constructed after the effective date of the ADA.
106. All Hollister Co. were required to be designed and constructed so that they are readily accessible to and usable by individuals who use wheelchairs. 42 U.S.C. § 12183(a)(1).
107. The Elevated Entrances at Hollister Co. stores were not designed and constructed to be readily accessible to and usable by individuals who use wheelchairs.
108. All Hollister Co. stores were required to be designed and constructed to comply with the Department of Justice’s Standards for Accessible Design (“Standards”). 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 36.406; 28 C.F.R., pt. 36, app A.
109. The Elevated Entrances at Defendants’ Hollister stores do not comply with the Standards.
110. Defendants are required to provide individuals who use wheelchairs full and equal enjoyment of their stores. 42 U.S.C. § 12182(a).
111. Defendants have failed and continue to fail to provide individuals who use wheelchairs the full and equal enjoyment of their Hollister Co. stores in the United States.
112. Defendants unlawfully discriminated against individuals who use wheelchairs and will continue to discriminate against individuals who use wheelchairs unless this Court orders an injunction prohibiting such discrimination.
113. Plaintiffs were harmed by Defendants’ discrimination and will continue to be
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harmed by Defendants’ discrimination unless this Court orders them to comply. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray: 1. That this Court assume jurisdiction; 2. that this Court certify the class identified in paragraph 36 pursuant to Rule 23 of the Federal Rules of Civil Procedure; 3. that this Court issue an injunction ordering Defendants to comply with the ADA with respect to all Hollister Co. stores nationwide by ramping or removing the Elevated Entrances or otherwise making the Porch Entrances accessible; 4. that this Court award reasonable attorneys’ fees and costs; and 5. that this Court award such additional or alternative relief as may be just, proper and equitable. JURY DEMAND: Plaintiffs seek a trial to the Court.
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Dated: October 21, 2010

Respectfully submitted,
/s/ Kevin W. Williams Kevin W. Williams Andrew C. Montoya Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Phone: 303.839.1775 Facsimile: 303.839.1782 E-mail: kwilliams@ccdconline.org E-mail: amontoya@ccdconline.org
Bill Lann Lee Julia Campins Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 1330 Broadway, Suite 1800 Oakland, CA 94612 Voice: (510) 839-6824 Fax: (510) 839-7839 E-mail: blee@lewisfeinberg.com E-mail: jcampins@lewisfeinberg.com
Amy F. Robertson Fox & Robertson, P.C. 104 Broadway, Suite 400 Denver, CO 80203 Voice: (303) 595-9700 TTY: (877) 595-9706 Facsimile: (303) 595-9705 E-mail: arob@foxrob.com

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Address of Plaintiff Colorado Cross-Disability Coalition: 655 Broadway, Suite 775 Denver, CO 80203 Address of Anita Hansen: 7400 W. Grant Ranch Blvd. Littleton, CO 80123 Address of Julie Farrar: 2925 Dexter Street Denver, CO 80207
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 Case 1:09-cv-02757-WYD-KMT Document 161 Filed 04/20/12 USDC Colorado Page 1 of 14
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation; ANITA HANSEN; and JULIE FARRAR,
Plaintiffs, on behalf of themselves and all others similarly situated, v. ABERCROMBIE & FITCH CO.; ABERCROMBIE & FITCH STORES, INC.; and J.M HOLLISTER LLC, d/b/a HOLLISTER CO.,
Defendants.
ORDER
I. BACKGROUND THIS MATTER is before the Court on Plaintiffs’ Motion for Class Certification
filed October 31, 2011 [ECF No. 125]. A hearing took place on Monday, April 9, 2012. For the reasons set forth in this Order, and on record during the hearing, the motion will be GRANTED.
Plaintiffs Anita Hansen and Julie Farrar are wheelchair users and members of the Colorado Cross-Disability Coalition (“CCDC”). In their Fifth Amended and Class Action Complaint, filed December 8, 2011, Plaintiffs bring claims on behalf of themselves and all others similarly situated, for violation of Title III of the Americans with
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Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.1 Plaintiffs allege that Defendants have discriminated against customers who use wheelchairs through their design and construction of elevated porch-like entrances at many of their Hollister Co. Stores throughout the United States. According to Plaintiffs, these “Elevated Entrances” are not accessible to individuals who use wheelchairs, and separate segregated entrances are not readily accessible and usable. They seek injunctive relief and reasonable attorneys’ fees and costs.
In the instant motion, Plaintiffs seek to certify a class pursuant to Fed. R. Civ. P. 23 defined as:
all people with disabilities who use wheelchairs for mobility who, during the two years prior to the filing of the Complaint in this case, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. Store in the United States on the basis of disability because of the presence of an Elevated Entrance. As an initial matter, I note that this case is somewhat unique in that I have already ruled on two dispositive motions. On June 2, 2011, I entered an order denying Defendants’ Motion to Dismiss for lack of subject matter jurisdiction, finding that the individual named Plaintiffs and Colorado-Cross Disability Coalition (“CCDC”) had standing to bring a claim requesting nationwide injunctive relief based on Defendants’
1In prior iterations of their Complaint, Plaintiffs brought a claim under the Colorado Civil Rights Act (Colo. Rev. Stat. § 24-34-601 et seq.), as well as damages claims. However, their Fifth Amended Complaint asserts a single class-action claim for injunctive relief under Title III of the ADA based on the Elevated Entrances at Defendants’ Hollister Co. stores.
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alleged violations of the ADA. In addition, on August 31, 2011, I entered an order granting Plaintiffs’ Motion for Partial Summary Judgment in which I found that the center front Elevated Entrances at the Hollister stores at Park Meadows mall and Orchard Town Center mall, both located in Colorado, violate title III of the ADA.
Plaintiffs now request certification of a nationwide class of Hollister customers who use wheelchairs, and injunctive relief in the form of an order requiring the removal of the Elevated Entrances that I previously found to violate the ADA.
Defendants argue that Plaintiffs cannot satisfy the requirements of Fed. R. Civ. P. 23 because differences between various Hollister stores defeat Plaintiffs’ attempts to show numerosity, commonality, and typicality under Rule 23. Defendants further assert that nationwide injunctive relieve cannot be granted in a single order with respect to the class as a whole. In addition, they maintain that the proposed class representatives cannot adequately represent the class because they are subject to unique defenses. I find these arguments unpersuasive and grant the motion for certification as set forth below. II. ANALYSIS
Fed. R. Civ. P. 23(a) governs class certification. A district court has broad discretion in determining whether a suit should proceed as a class action. Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982), cert. denied, 460 U.S. 1069 (1983). In ruling on Plaintiffs’ motion for class certification under Rule 23, my inquiry is limited to whether the requirements of Rule 23 have been satisfied, and the merits of the proposed class action claim may not be considered. See Penn v. San Juan Hosp., Inc.,
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528 F.2d 1181, 1189 (10th Cir. 1975). In addition, I must take the substantive allegations of the complaint as true. J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir. 1999). And in deciding whether certification is appropriate, doubts should be resolved in favor of certification. See Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1988) (“if there is error to be made, let it be in favor and not against the maintenance of a class action”), cert. denied, 394 U.S. 928 (1969)).
A. The Requirements of Rule 23(a): A class may be certified only if all four of the following prerequisites are met: (1) Numerosity: “the class is so numerous that joinder of all members is impracticable”; (2) Commonality: “there are questions of law or fact that are common to the class”; (3) Typicality: “the claims or defenses of the representative parties are typical of the claims or defenses of the class”; and (4) Adequacy of representation: “the representative parties will fairly and adequately represent the interests of the class.” A party seeking to certify a class bears the “strict” burden of proving that the requirements of Rule 23 have been met. Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir.2006). I am required to engage in a “rigorous analysis” into whether the requirements of Rule 23 are satisfied. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011); Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 161 (1982).
1. Numerosity The burden is upon the plaintiff seeking to represent a class to establish that the class is so numerous as to make joinder impracticable. Peterson v. Oklahoma City
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Housing Authority, 545 F.2d 1270, 1273 (10th Cir. 1976); Trevizo, 455 F.3d at 1162. There is “no set formula to determine if the class is so numerous that it should be so certified.” Rex v. Owens ex rel. State of Okla., 585 F.2d 432, 436 (10th Cir.1978). Because this is a fact-specific inquiry, the district court has wide discretion in making this determination. Johnson by Johnson v. Thompson, 971 F.2d 1487, 1498 (10th Cir.1992); Trevizo, 455 F.3d at 1162. A number of factors are relevant to this consideration including the class size, the geographic diversity of class members, the relative ease or difficulty in identifying members of the class for joinder, the financial resources of class members, and the ability of class members to institute individual lawsuits. CCDC v. Taco Bell, 184 F.R.D. 354, 358-59 (D. Colo. 1999) (certifying a class of claimants with disabilities who used wheelchairs or scooters and were discriminated against by restaurant’s failure to comply with ADA Accessibility Guidelines).
Here, Plaintiffs argue that the numerosity requirement is met because Defendants have identified approximately 249 Hollister stores around the country that utilize Elevated Entrances. Plaintiffs further state that the proposed class is large and geographically diverse, although the exact number of potential members is not known. According to Plaintiffs, in cases where the proposed class consists of persons with disabilities impacted by architectural barriers, joinder of class members is impracticable. Defendants complain that Plaintiffs have presented no evidence of class size. Defendants assert that simply because there are 249 Hollister stores, there is no way to determine the number of persons using wheelchairs who live in the vicinity of a Hollister store with an Elevated Entrance who wish to shop at the store.
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While Plaintiffs have not provided specific census data concerning the number of individuals nationwide utilizing wheelchairs who are likely to patronize Defendants’ business, I find that in this case it is reasonable to infer that potential class is so numerous and geographically diverse as to make joinder impracticable. See Taco Bell, 184 F.R.D. at 358-59; see also Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994) (in cases where the proposed class consists of persons with disabilities impacted by a common architectural barriers, joinder of class members is impracticable). In addition, individuals affected by the access violation would be difficult to identify and unlikely to bring individuals suits. I find that Plaintiffs have met their burden with respect to the numerosity requirement.
2. Commonality Commonality for purposes of Rule 23(a) requires only a single issue common to the class. See J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999). Further, “‘[t]hat the claims of individual class members may differ factually should not preclude certification under Rule 23(b)(2) of a claim seeking the application of a common policy.’” Id. (quotations omitted). The commonality requirement “is satisfied when the legal question linking the class members is substantially related to the resolution of the litigation.” Realmonte v. Reeves, 169 F.3d 1280, 1285 (10th Cir.1999). Here, there are common questions of law and fact. Defendants have identified 249 Hollister stores constructed with an Elevated Entrances, and that all of the class members will all be subject to the same ADA analysis with respect that architectural barrier. Plaintiffs note that “[w]here a class of persons sharing a common disability
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complains of the identical architectural barrier based on the same alleged violations of law, commonality is unquestionably established.” Taco Bell, 184 F.R.D. at 359.
Defendants assert that the commonality requirement is not met here because not all of the Elevated Entrances are “identical.” According to Defendants, some of the Elevated Entrances have different “decorations” and lighting, affecting the visibility of the automatic door buttons to open the alternate side doors. Defendants maintain that in my Order of August 31, 2011, in which I found that the Elevated Entrances at the Hollister stores at Park Meadows mall and Orchard Town Center mall violate Title III of the ADA, I considered several “non-uniform” factors including whether merchandise was displayed for sale on the elevated porch, whether shutters at the side entrances were opened or closed, and whether buttons used to activate the alternate side entrances were visible. Thus, Defendants contend that a finding of an ADA violation at one store with an Elevated Entrance would not necessarily lead to a finding that an ADA violation exists at all other stores.
I disagree with Defendants’ characterization of my prior Order. In my August 11, 2011, Order, I noted that the decorations on the elevated front-porch entrances to the stores at issue made the existence of alternate side doors and automatic door buttons less obvious. However, the thrust of Defendants’ ADA violation is that the main Elevated Entrances violate the ADA’s prohibition on different or separate accommodations and its requirement of integration. As I stated in my Order, “[c]learly the side doors do not ‘permit the same pattern of use as the raised entry door and equal access to all merchandise.’” While there may be some non-material differences in the
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porch displays at various store locations, it appears beyond dispute that the Elevated Entrances are constructed pursuant to a common architectural design. Therefore, this case is clearly distinguishable from Castaneda v. Burger King Corp., 264 F.R.D. 557, 568-69 (N.D. Cal. 2009), a case relied upon by Defendants, because that case involved different restaurant franchises that were constructed using different blueprints and constructions plans, and different architectural and engineering services. Here, Defendants have not shown any material differences in the Elevated Entrances at the 249 stores they identified. I find that differences in the front merchandise display at various stores does not preclude commonality in this case, and that Plaintiffs have satisfied the commonality requirement of Rule 23(a). Here, there are both common questions of law and of fact.
3. Typicality “Typicality insures that the class representative’s claims resemble the class’s claims to an extent that adequate representation can be expected.” In Re Intelcom Group, Inc. v. Securities Litig., 169 F.R.D. 142, 149 (D. Colo. 1996). “The rationale behind the requirement that the class representative’s claims be typical of the class claims is recognition that a plaintiff with claims typical of the class will, in pursuing and defending his own self interest in the litigation, be concomitantly advancing or defending the interests of the class.” Dubin v. Miller, 132 F.R.D. 269, 274 (D. Colo. 1990) (citing 1 H. Newberg, Newberg on Class Actions § 3.22, at 199 (2d ed. 1985)). Plaintiffs assert that the typicality requirement is met in this case because the named Plaintiffs are individuals with disabilities who use wheelchairs, who attempted to
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patronize Defendants’ Hollister stores that featured Elevated Entrances and who, because of these entrances, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of those Hollister stores.
Again, Defendants contend that slight variations in the merchandise displays at various Hollister stores preclude a finding of typicality. I disagree with this assertion for the reasons stated above. In addition, Defendants also contend that the two individually named Plaintiffs are atypical of the class because they are “testers.” I find this argument an attempt by Defendants to re-litigate Plaintiffs’ standing. All of the cases cited by Defendants involve “tester” plaintiffs who were found not to have standing to bring suits for injunctive relief under Title III of the ADA because they were unlikely to return and patronize the accommodation in question. See Nat. Alliance for Accessibility, Inc. v. Waffle House, Inc., 2011 WL 2580679 (E.D.N.C. June, 29, 2011); Harris v. Stonecrest core Automotive Center, 472 F.Supp.2d 1208, 1219 (S.D. Cal. 2007). As noted above, I have already ruled that the individual Plaintiffs in this case have standing to bring claims for nationwide injunctive relief. Defendants nevertheless argue that one of the named Plaintiffs, Julie Farrar, was not a Plaintiff when I decided the standing issue, and that the deposition testimony of both named Plaintiffs conflicts with assertions they made in their declarations concerning their intent to shop at Defendants’ Hollister stores if Defendants make those stores accessible.
First, I reject Defendants’ assertion that the named Plaintiffs here are merely “testers.” Plaintiff Julie Farrar testified in her deposition that she first encountered the inaccessible entrance at a Hollister store in the summer of 2011, prior to learning about
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the instant case and prior to agreeing to become a named Plaintiff. She testified that her daughter likes to shop at Hollister and loves wearing their clothing, and that but for the Elevated Entrances, she would shop at Hollister with her daughter. Moreover, even if the Plaintiffs were appropriately classified as “testers,” this would not necessarily defeat their individual standing. I note that in Tandy v. City of Wichita, 380 F.3d 1277, 1287 (10 Cir. 2004), the Tenth Circuit found that “testers” had standing to sue for relief under Title II of the ADA. While Defendants have not formally asked me to reconsider my ruling on standing, I nevertheless affirm that prior ruling and find and conclude that both named Plaintiffs have shown that they have suffered a real and concrete injury-infact. The named Plaintiffs have suffered and will suffer in the future if the Elevated Entrances are not removed. See Colorado Cross Disability Coalition v. Hermanson Family Ltd. P’ship, 1997 WL 33471623 (D. Colo., Aug. 5, 1997) (unreported) (finding that wheelchair bound plaintiff, while arguable a tester, had standing to challenge architectural barriers that precluded him from accessing the public accommodation at issue).
Moreover, I note that Defendants have not cited any case, nor am I aware of any case, where a plaintiff’s status as a tester precluded a finding of typicality in the context of a motion for class certification. Here, I find that the claims of the named Plaintiffs are clearly typical of the class. See Taco Bell, 184 F.R.D. at 360-61 (typicality requirement satisfied where representative plaintiffs suffered from similar disability and contested the same architectural barrier under the same statutes as the class); see also Arnold, 158 F.R.D. at 450 (“in a public accommodations suit . . . where disabled persons challenge
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the legal permissibility of architectural design features, the interests, injuries, and claims of the class members are, in truth, identical such that any class member could satisfy the typicality requirement for class representation.”).
4. Adequacy of representation The final requirement of Rule 23(a) is adequate representation. Rule 23(a)(4) requires that the representative parties “fairly and adequately protect the interests of the class.” The Tenth Circuit has held that adequacy of representation depends on resolution of two questions. Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002). These questions are: “‘(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?’” Id. at 1187-88 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)). Here, the named Plaintiffs, like the members of the proposed class, seek remedies for the Elevated Entrances that pose barriers to their full and equal enjoyment of the 249 Hollister stores at issue. In addition, Plaintiffs contend, and I agree, that there are no unique facts or defenses relevant to the named Plaintiffs’ claims that would put them in conflict with the proposed class. Defendants assert that the CCDC cannot be a part of the class because it is not a person. While this might be the case, I need not decide this issue because it is irrelevant to my determination that the matter should be certified as a class action. In addition, Defendants contend that individual Plaintiff Anita Hansen and Plaintiff Julie Farrar are not a proper class representatives because (1) they lack standing to seek
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injunctive relief, (2) they have “credibility” problems and (3) they are “testers.” As discussed above, I have already found that Plaintiffs have standing to seek nationwide injunctive relief. In addition, I find Defendants’ attack on the named Plaintiffs credibility to be unsupported. Most significantly, Defendants have not demonstrated the existence of any conflicts of interest between the named Plaintiffs and other class members. There is no evidence that the named Plaintiffs and their counsel will not prosecute this action vigorously on behalf of the class.2
I find that the named Plaintiffs are members of the class they seek to represent and their interests are not in conflict with those of the class. I find that the named plaintiff can fairly and adequately protect the interests of the absent class members.
B. Whether the Class Satisfies the Requirements of Rule 23(b)(2) Having determined that the Rule 23(a) requirements are met, I must also decide whether the action falls within one of the three categories set forth in Rule 23(b). Trevizo v. Adams, 455 F.3d 1155, 1166-62 (10th Cir.2006); Shook v. El Paso County, 386 F.3d 963, 968 (10th Cir.2004). This case clearly falls within the paradigm for class certification under Fed. R. Civ. P. 23(b)(2) because “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.” Fed. R. Civ. P. 23(b)(2). Here, all class members have suffered the same injury and that their Fifth
2 Here, the parties do not dispute the adequacy of Plaintiffs’ counsel under Rule 23(g).
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Amended Complaint seeks an injunction that would remedy all class members’ injuries and satisfy Rule 65(d).
The Tenth Circuit has held that Rule 23(b)(2) imposes two independent, but related requirements on those seeking class certification. DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1199 (10th Cir. 2010)(internal citations and quotations omitted). In Stricklin, the Tenth Circuit held: “First, plaintiffs must demonstrate defendants’ actions or inactions are based on grounds generally applicable to all class members. Second, plaintiffs must also establish the injunctive relief they have requested is appropriate for the class as a whole.” Stricklin, 594 F.3d at 1199 (internal citations and quotations omitted).
It cannot be seriously disputed that a proposed class action such as this, in which all members of the class complain of an identical architectural barrier, necessarily involves acts that are generally applicable to the class. Taco Bell, 184 F.R.D. at 361; Arnold, 158 F.R.D. at 452. In addition, as Plaintiffs note, the Advisory Committee Notes to the 1966 amendment to rule 23 demonstrate that subdivision (b)(2) was intended to reach precisely the type of class proposed here: “Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.” Therefore, I find that the proposed class action is properly certified under Rule 23(b)(2). III. CONCLUSION
For the reasons set forth herein, Defendants’ various objections to certification are denied, and Plaintiffs’ Motion for Class Certification filed October 31, 2011 [ECF No.
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Case 1:09-cv-02757-WYD-KMT Document 161 Filed 04/20/12 USDC Colorado Page 14 of 14 125] is GRANTED. Plaintiffs Anita Hansen and Julie Farrar are hereby certified as representatives of a nationwide class of individuals seeking injunctive relief, as defined on page 2 of the Order. Dated: April 20, 2012 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge
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 Case 1:09-cv-02757-WYD-KMT Document 162 Filed 04/27/12 USDC Colorado Page 1 of 7
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation; ANITA HANSEN; and JULIE FARRAR,
Plaintiffs, on behalf of themselves and all others similarly situated, v. ABERCROMBIE & FITCH CO.; ABERCROMBIE & FITCH STORES, INC.; and J.M HOLLISTER LLC, d/b/a HOLLISTER CO.,
Defendants. ______________________________________________________________________________
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND ENTRY OF INJUNCTION AND ENTRY OF JUDGMENT ______________________________________________________________________________ Plaintiffs, by and through undersigned counsel, hereby submit their Motion for Summary Judgment and Entry of Injunction. This Court has held that the Elevated Entrances at two Hollister stores in Colorado violate Title III of the Americans with Disabilities Act (“ADA”) and has certified a nationwide class of individuals who use wheelchairs who have encountered discrimination based on Elevated Entrances. Because it is undisputed that approximately 249 Hollister stores nationwide have such entrances, Plaintiffs move for summary judgment holding that all such entrances violate the ADA, entry of a nationwide injunction remedying the violations, and entry of judgment in favor of Plaintiffs. CERTIFICATE OF COMPLIANCE WITH D.C.COLOLCivR 7.1(A)

Case 1:09-cv-02757-WYD-KMT Document 162 Filed 04/27/12 USDC Colorado Page 2 of 7

Undersigned counsel hereby certifies that he conferred with counsel for Defendants.

Defendants oppose this motion.

As further grounds for this motion, Plaintiffs state the following:

1.

On August 31, 2011, this Court granted Plaintiffs’ Motion for Partial Summary

Judgment. See Order, [ECF No. 109] (“Summary Judgment Order”). The Summary Judgment

Order holds “the center front entrances at the Hollister stores at Park Meadows mall and Orchard

Town Center mall violate Title III of the Americans with Disabilities Act.” Id. at 12.

2.

On April 9, 2012, this Court held a hearing on Plaintiffs’ Motion for Class

Certification [ECF No. 125]. The Court entered its written Order on April 20, 2012 [ECF No.

161] (“Class Cert. Order”). Pursuant to Fed. R. Civ. P. 23, the Court certified a class defined as

all people with disabilities who use wheelchairs for mobility who, during the two years prior to the filing of the Complaint in this case, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. Store in the United States on the basis of disability because of the presence of an Elevated Entrance.1

3.

Plaintiffs now move for summary judgment with respect to all of Defendants’

Hollister Stores in the United Sates that have Elevated Entrances.

4.

Summary judgment is appropriate where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);

Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190

(10th Cir. 2000).

2

Case 1:09-cv-02757-WYD-KMT Document 162 Filed 04/27/12 USDC Colorado Page 3 of 7

5.

It is undisputed that Defendants own and operate approximately 249 Hollister

stores nationwide that have Elevated Entrances. Robertson Decl. Ex. 3 [ECF No. 125-1],

submitted in connection with Plaintiffs’ Motion for Class Certification [ECF No. 125].

6.

It is also undisputed that all Hollister stores were constructed after January 26,

1993, the date after which all newly constructed public accommodations were required to

comply with the ADA. 42 U.S.C. § 12183(a)(1); Defs.’ Supplemental Resps. to Pls.' Interrogs

and Requests for Production of Documents at 4 (Robertson Decl., Exs. 1 & 3); see also Answer

to Fourth Am. and Class Action Complaint [ECF No. 122] ¶ 5 (admitting “Defendants created

and designed all Hollister Co. stores, one of Defendants’ store brands, after the passage of and

the effective date of the ADA”).

7.

The Elevated Entrances are constructed pursuant to a common architectural

design. Class Cert. Order at 7-8.

8.

Hollister stores’ Elevated Entrances are not accessible to people in wheelchairs.

Summary Judgment Order at 3.

9.

The ADA requires that all newly constructed places of public accommodation be

“readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12183(a)(1).

10.

Also under Title III,

It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege,

1

Elevated Entrance refers to a raised porch-like platform that is two steps above

ground level. Summary Judgment Order at 3.

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Case 1:09-cv-02757-WYD-KMT Document 162 Filed 04/27/12 USDC Colorado Page 4 of 7

advantage, or accommodation, or other opportunity that is as effective as that provided to others.

Summary Judgment Order at 11 (quoting 42 U.S.C §12182(b)(1)(A)(iii) (emphasis in Order)).

11.

“The thrust of Defendants’ ADA violation is that the main Elevated Entrances

violate the ADA’s prohibition on different or separate accommodations and its requirement of

integration.” Class Cert. Order at 7; see also 42 U.S.C. § 12182(b)(1)(A)(iii), (b)(1)(B). That

ADA violation exists at every Hollister store that has an Elevated Entrance.

12.

“[B]ecause [the statute] sets forth the criteria necessary for injunctive relief, the

traditional equitable factors, including a showing of irreparable harm, need not be proved.”

United States v. Morris, 09-cv-02381-WYD-KMT, 2011 WL 588060, at *5 (D. Colo., Jan. 14,

2011) (citing Atchison, Topeka & Santa Fe R.R. Co. v. Lennen, 640 F.2d 255, 259 (10th Cir.

1981)); see also Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175 (9th Cir. 2010)

(Title III case holding that “[t]he standard requirements for equitable relief need not be satisfied

when an injunction is sought to prevent the violation of a federal statute which specifically

provides for injunctive relief.”), cert. denied, 131 S.Ct. 2113 (2011). “‘When the evidence

shows that the defendants are engaged in, or about to be engaged in, the act or practices

prohibited by a statute which provides for injunctive relief to prevent such violations, irreparable

harm to the plaintiffs need not be shown.’” Star Fuel Marts, LLC v. Sam's East, Inc., 362 F.3d

639, 651 (10th Cir. 2004) (internal citations omitted).

13.

Injunctive relief is the only remedy for violations of Title III of the ADA. 42

U.S.C. § 12188(a)(1). In cases such as the present, where a public accommodation has violated

the new construction provisions of § 12183(a)(1), “injunctive relief shall include an order to alter

4

Case 1:09-cv-02757-WYD-KMT Document 162 Filed 04/27/12 USDC Colorado Page 5 of 7

facilities to make such facilities readily accessible to and usable by individuals with disabilities

to the extent required by this subchapter.” 42 U.S.C. § 12188(a)(2) (emphasis added).

14.

As Defendants are engaged in practices prohibited by the ADA, Plaintiffs are

therefore entitled to an injunction ordering removal of the Elevated Entrances.

15.

Because this motion resolves all remaining issues in the case, Plaintiffs

respectfully request that this Court enter judgment in Plaintiffs’ favor in accordance with this

motion, as required by -- and in a separate paper pursuant to -- Fed. R. Civ. P. 58(a). See

Plaintiffs’ proposed Final Judgment filed concurrently with this motion.

WHEREFORE, for the reasons set forth above, Plaintiffs respectfully request this Court

hold that the center front entrances at all Hollister stores with Elevated Entrances violate Title III

of the Americans with Disabilities Act and enter summary judgment in favor of Plaintiffs and

against Defendants on Plaintiffs’ claim under Title III (the only remaining claim in the case). In

addition, Plaintiffs respectfully request this Court issue an injunction ordering Defendants to

remove the Elevated Entrances from any Hollister store that has one and enjoining Defendants

from designing and constructing Elevated Entrances at Hollister stores now and in the future.

Finally, Plaintiffs respectfully request this Court enter final judgment in favor of the Plaintiffs as set forth in this motion.2

2

Entry of judgment in Plaintiffs’ favor entitles Plaintiffs to recover their reasonable

attorneys’ fees, litigation expenses and costs. 42 U.S.C. § 12205. Should the Court enter such a

judgment, Plaintiffs respectfully request that the Court set a schedule for briefing Plaintiffs’ fee

petition.

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Case 1:09-cv-02757-WYD-KMT Document 162 Filed 04/27/12 USDC Colorado Page 6 of 7

Dated: April 27, 2012
Andrew Colorado

Respectfully submitted,
/s/ Kevin W. Williams Kevin W. Williams
C. Montoya Cross-Disability Coalition
655 Broadway, Suite 775 Denver, Colorado 80203 Telephone: (720) 336-3584 Facsimile: (720) 210-9819 E-mail: kwilliams@ccdconline.org E-mail: amontoya@ccdconline.org
Amy R. Robertson Fox & Robertson, P.C. 104 Broadway, Suite 400 Denver, Colorado 80203 Telephone: (303) 595-9700 Facsimile: (303) 595-9705 E-mail: arob@foxrob.com
Bill Lann Lee Julia Campins Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 476 - 9th Street Oakland, CA 94607 Telephone: (510) 839-6824 Facsimile: (510) 839-7839 E-mail: blee@lewisfeinberg.com E-mail: jcampins@lewisfeinberg.com
Attorneys for Plaintiff

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Case 1:09-cv-02757-WYD-KMT Document 162 Filed 04/27/12 USDC Colorado Page 7 of 7

CERTIFICATE OF SERVICE

I hereby certify that on April 27, 2012, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will provide electronic service to the following:

Gregory

A. Eurich geurich@hollandhart.com

Thom

as B. Ridgley tbridgley@vorys.com

Mark

A. Knueve maknueve@vors.com

/s/ Briana McCarten Briana McCarten Legal Program Assistant

7

 
 Case 1:09-cv-02757-WYD-KMT Document 164 Filed 05/03/12 USDC Colorado Page 1 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action 09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, et al.,
Plaintiffs, v. ABERCROMBIE & FITCH CO., et al.,
Defendants. ____________________________________________________________________
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, TO VACATE AUGUST 31, 2011 ORDER
____________________________________________________________________ Defendants, Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., and J.M. Hollister LLC, move the Court pursuant to Fed.R.Civ.P. 56 to enter summary judgment in their favor on all claims asserted against them in this suit or, in the alternative, for the Court to vacate its August 31, 2011 Order in this matter. As set forth in the attached Memorandum in Support, the circumstances of this litigation have changed since this Court entered its August 31, 2011 Order. One of the two stores identified in the Court’s Order has closed, and Defendants have made alterations to the other store and it now indisputably complies with the ADA. Defendants are thus entitled to summary judgment as a matter of law or, in the alternative and at a minimum, to vacation of the August 31, 2011 Order in this matter.

Case 1:09-cv-02757-WYD-KMT Document 164 Filed 05/03/12 USDC Colorado Page 2 of 21
Respectfully submitted,
s/ Mark A. Knueve ___________________________________ Thomas B. Ridgley Mark A. Knueve Richard T. Miller VORYS, SATER, SEYMOUR AND PEASE LLP 52 E. Gay Street P.O. Box 1008 Columbus, Ohio 43215 Tel: (614) 464-6387 Fax: (614) 719-4808 maknueve@vorys.com
OF COUNSEL:
HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, CO 80201-8749 Tel: (303) 295-8749 Fax: (303) 975-5464 geurich@hollandhart.com
Counsel for Defendants

Case 1:09-cv-02757-WYD-KMT Document 164 Filed 05/03/12 USDC Colorado Page 3 of 21
MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. Movant’s Statement of Material Facts 1. Defendants operate retail stores across the country under multiple brands, including the Hollister brand. Unlike many other national retailers, Hollister does no traditional advertising, either through print, television or other means. Rather than advertise through traditional methods, Hollister markets virtually exclusively through its in-store experience. Hollister has created a brand identity designed to draw teen consumers to the store and to its merchandise. The Hollister brand exemplifies a Southern California beach lifestyle. (Bondy Declaration, ¶2.)1 2. A porch-like structure is incorporated in the entrance of some Hollister stores to create the aesthetic appearance of a Southern California surf shack. Hollister utilizes the porchlike structure as a visual display, analogous to a store window used to draw the attention of all shoppers. The mannequins displayed there are dressed in Hollister clothing, but it is not intended to be touched or purchased, and no merchandise is sold on the porch-like structure. (Bondy Declaration, ¶¶ 4, 17.) 3. The fully accessible entry doors adjacent to the porch-like structure are parts of an integrated entrance design with multiple entry doors. (Bondy Declaration, ¶¶ 3.) 4. Plaintiff CCDC notified defendants in May and June of 2009 that it believed the entrance, cash register counter, fixed shelving displays, and access to merchandise at Hollister stores violated various ADA regulations. (Bondy Declaration, ¶ 6.) Thereafter, Hollister entered into settlement negotiations with CCDC, which were unsuccessful. Nonetheless, to resolve CCDC’s concerns, defendant Hollister modified Hollister stores throughout the country by
1 The Declaration of Michael Bondy and attachments are filed as Exhibit 1. Relevant portions from the Deposition of Anita Hansen are filed as Exhibit 2.
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lowering the height of the primary sales counters, adding to those stores with a porch-like structure a second automatic push button on the second accessible entry door, changing store procedures to ensure that the accessible entry doors were unblocked by merchandise and unlocked while the stores are open, and re-merchandising the stores to ensure a 36-inch path of travel (with occasional 32-inch pinch points of less than 24 inches) through the stores and around all fixtures in the stores, at a total cost of over $11.5 million. (Bondy Declaration, ¶ 7.)
5. The Hollister store located in the Orchard Town Center mall in Westminster, Colorado (the “Orchard Town Center Store”), has permanently closed and is no longer in business. (Bondy Declaration, ¶ 8.)
6. The Hollister store located at the Park Meadows mall in Littleton, Colorado (the “Park Meadows Store”) is now the only Hollister store in Colorado that has an elevated entry door in addition to accessible entry doors. (Bondy Declaration, ¶ 8.)
7. The Park Meadows Store has an integrated entrance design with three entry points. One entry point is a porch-like structure with two steps. Someone who uses the porchlike structure as an entry point must walk up the steps onto the porch-like structure, and must then either turn left or right to walk down two additional stairs in order to enter the store. A person thus must make a choice to enter either into the “Dudes” side of the store (which sells men’s clothing) or into the “Bettys” side of the stores (which sells women’s clothing). The Park Meadows Store also has two accessible entry doors on either side of the porch-like structure, which are accessible to persons who use wheelchairs or similar devices. The accessible entry doors at the Park Meadows Store are and have been openly denoted by push-buttons, which are designated with the International Symbol of Accessibility. Once someone pushes the pushbutton, a powered door opens and allows the person to enter the store. One of the two accessible
2

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entry doors at the Park Meadows Store leads into the “Dudes” side of the store. The other accessible entry door leads into the “Bettys” side of the store. (Bondy Declaration, ¶¶ 9-10.)
8. The entrance to the Park Meadows Store was altered on or about April 27 and 28, 2012. Signage has been added at each accessible entry door indicating whether it enters into the “Dudes” side of the store (displaying men’s clothing) or the “Betty’s” side of the store (displaying women’s clothing). In addition, operable door handles have been added (in addition to the push buttons) to each of these accessible doors to increase their visibility and recognizability as entry doors. (Bondy Declaration, ¶¶ 10.) The new signs and the door handles are visible from a position outside the store directly in front of the porch-like structure. (Bondy Declaration, ¶¶ 10-12.) The new signs on the accessible entry doors are the same as the signs on the porch-like structure which direct customers to the “Dudes” and “Betty’s” sides of the stores. (Bondy Declaration, ¶¶ 10-12.)
9. The only exterior signage on the Park Meadows Store is: (1) the words “Hollister Co.” painted on the sides of the porch-like structure; (2) the “Dudes” and “Bettys” signs on the door frames of the accessible entry doors; and (3) and the International Symbols of Accessibility on the push-buttons for the accessible entry doors. The accessible entry doors are also denoted by the door handles. As a result, the accessible entry doors are highly visible. (Bondy Declaration, ¶ 13.)
10. Shoppers who enter a Hollister store from the porch-like structure, turn to the side of the store marked “Dudes,” and descend two steps, will reach the same spot inside the store as shoppers who enter the store through the adjacent accessible door marked “Dudes.” The general circulation paths inside the store begin at the same point and are the same throughout the inside of the store. The same is true of shoppers who enter through the porch-like structure and
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descend into the side of the store marked “Dudes,” and those who enter through the adjacent accessible door marked “Bettys.” (Bondy Declaration, ¶ 14-15; Hansen Deposition, at 56-57.)
11. The in-store experience is identical for shoppers who enter through the elevated entry door and those who enter through either of the accessible entry doors. Shoppers who enter the store through the porch-like structure and shoppers who enter through the adjacent accessible doors all hear the same store music, see the same marketing displays, see the same merchandise, smell the same spritzed Hollister scent, and interact with the same employees. (Bondy Declaration, ¶ 15; Hansen Deposition, at 54-57.)
12. Once someone enters the store on the “Dudes” side or the “Bettys” side from either the porch-like structure or the accessible entry points, a customer may only cross from the “Dudes” side to the “Bettys” side of the store at certain access points in the Park Meadows Store. All such access points are accessible to persons using wheelchairs or similar devices. (Bondy Declaration, ¶ 16.)
II. Introduction Plaintiffs’ Fifth Amended and Class Action Complaint asserts a single claim for
injunctive relief under the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12181, et seq., relating to the accessibility of the “elevated entrances” that some Hollister stores use in addition to level, accessible entry doors. (Id., ¶¶ 101-113.) Defendants move for summary judgment in their favor at this time because the facts and circumstances underlying plaintiffs’ claim have changed since the Court previously addressed these issues.2
2 Because the only relief sought by plaintiffs is prospective injunctive relief, it is appropriate for this Court to consider changes in the factual circumstances and the applicable law.
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There are two individual plaintiffs, Anita Hansen and Julie Farrar, and they have been to only two Hollister stores. One of those stores has closed permanently and is no longer in business. Accordingly, plaintiffs’ claims against that store are now moot, and they no longer have standing to seek injunctive relief against it because there is no possible risk that they will encounter barriers there in the future. The other store has been remediated to address the concerns previously expressed by plaintiffs and by the Court. Its two accessible entry doors have been visibly distinguished from nearby windows by the addition of traditional door handles and new signage that indicates which accessible entry door enters into the portion of the store displaying men’s clothing, and which accessible entry door enters into the portion of the store displaying women’s clothing.3
Furthermore, the requirements of the ADA regulations that were referenced by the Court and by the parties in connection with earlier motions were revised in 2010. Most significantly, the 2010 ADA Standards do not include a provision stating that, where feasible, the accessible entrances shall be the entrances used by a majority of people visiting the site. Instead, the 2010 ADA Standards indicate that “accessible routes shall coincide with or be located in the same area as general circulation paths.” Additionally, the 2010 ADA Standards specify that multiple entry doors may comprise a single “entrance” that complies with the ADA when they include at least one accessible entry door The 2010 ADA regulations also allow for both accessible and inaccessible entrances, as long as 60% of the entrances are accessible.
Accordingly, because there is no genuine issue of fact and the Park Meadows Store complies with the ADA, summary judgment should be granted to Defendants. In the alternative, and at a minimum, this Court should set aside and vacate its August 31, 2011 Order in light of
3 If the Court determines that the alterations made to the Park Meadows Store bring its entrance into compliance with the ADA, defendant J.M. Hollister will make similar alterations at all of its stores nationwide that incorporate elevated entry doors in their entrances, obviating the need for the Court to address stores outside of Colorado.
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the changed circumstances. The alterations to the Park Meadows Store resolve this Court’s concerns or, at a minimum, raise genuine issues of material fact. Moreover, the Court’s prior Order relied upon regulations in the 1991 ADA Standards which no longer apply. As a result, at a minimum, the August 31, 2011 Order should be vacated. III. Prior rulings by the Court
This Court has made three substantive rulings on pretrial motions. First, the Court denied defendants’ motion to dismiss for lack of standing based upon the allegations in plaintiffs’ Second Amended and Class Action Complaint. (Order, May 18, 2011, Doc. #94.)
Second, on August 31, 2011, the Court granted plaintiffs’ Motion for Partial Summary Judgment with respect to the two Denver-area Hollister stores the plaintiffs had actually visited. (Order, Aug. 31, 2011, Doc. # 109.) It found that “the center front entrances at the Hollister stores at Park Meadows mall and Orchard Town Center mall violate Title III of the [ADA]” by incorporating a porch-like structure with steps at one of the entry doors. (Id., at 12.) The Court disagreed with defendants’ contention that the three front entry doors at each of these stores collectively constitute a single entrance that complies with the 1991 ADA regulations. (Id.) The Court assumed (in the absence of evidence submitted by plaintiffs) that a majority of customers enter the stores through the elevated entry door, and concluded that this door must therefore be accessible pursuant to the 1991 ADA regulations. (Id., at 9-14.) The Court held that the two accessible entry doors are difficult to distinguish visibly from nearby shuttered windows and noted that there were no signs indicating which of these doors entered into the women’s clothing area and which entered into the men’s clothing area. (Id., at 10.) (The Court issued this ruling before the Orchard Town Center Store was permanently closed, and before the Park Meadows
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Store underwent alterations to add signage and increase the visibility of its accessible entry doors.)
Finally, the Court recently granted plaintiffs’ motion for class certification and found that plaintiffs Anita Hansen and Julie Farrar are proper representatives of the class. (Order, April 20, 2012, Doc. # 161.) It also reiterated its earlier finding that the accessible entry doors are not visibly “obvious” and do not “permit the same pattern of use” as the elevated entry door. (Id., at 7.) (Again, the parties briefed these issues before the Orchard Town Center Store closed and before the Park Meadows Store was altered.) IV. Argument
A. Plaintiffs have not established viable ADA claims against defendants with respect to the Hollister store located at the Orchard Town Center mall.
The Orchard Town Center Store is one of the two stores4 specifically addressed by plaintiffs in their Fifth Amended and Class Action Complaint and in their deposition testimony. (Id., at ¶¶ 45-58; Deposition of Anita Hansen, Nov. 9, 2011; Deposition of Julie Farrar, Nov. 9, 2011.) In its ruling on plaintiffs’ Motion for Partial Summary Judgment, this Court found that the elevated entry door of the Orchard Town Center Store does not comply with the requirements of the 1991 ADA Standards. (Order, supra, Doc. # 109, at 12.) However, this Hollister store was permanently closed earlier this year for reasons unrelated to this litigation, after the Court’s ruling. (Bondy Declaration, at ¶ 8.) As a result, plaintiffs’ claim for injunctive relief against the Store should be dismissed for mootness and for lack of standing.
4 Plaintiffs’ Complaint briefly mentions a third store, located at the Parkdale Mall in Beaumont, Texas. (Supra, at ¶¶ 72, 73.) However, plaintiffs have conceded that this store has a level central entry door, without a porchlike structure (Hansen Deposition, at 34), and their allegation that Ms. Hansen “was deterred from entering the store” (Fifth Amended Complaint, at ¶ 73) is erroneous; she just “didn’t take the time” to enter that store. (Hansen Deposition, at 35.)
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First, a request for an injunction becomes moot when “subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 190 (2000). See also Chambers v. Melmed, 141 Fed.Appx. 718, 720 (10th Cir. 2005) (same). Summary judgment dismissing an ADA claim is therefore appropriate when the alleged barrier no longer exists. See, e.g., Hubbard v. 7-Eleven, Inc., 433 F.Supp.2d 1134, 1145 (S.D. Cal. 2006) (“[b]ecause the only relief available under the ADA is injunctive, the fact that the alleged barrier is remedied renders the issue moot”); Grove v. De La Cruz, 407 F.Supp.2d 1126, 1130 (D. D.C. 2005) (same).
Second, the permanent closure of the Orchard Town Center Store extinguishes plaintiffs’ standing to obtain injunctive relief requiring alterations to the entrance of that store. A plaintiff seeking injunctive relief must demonstrate a “real and immediate threat” of future harm. City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). In an ADA case, this requires proof that the accessibility barriers still exist. Troutt v. Jones, 415 Fed. Appx. 935, 938 (10th Cir. 2011), quoting Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004).
In the present case, no plaintiffs or class members can possibly establish that they intend to return to this Store in the future, or that they are deterred from returning there by the presence of the elevated entry door, in light of the fact that the Store is closed and is no longer in business. Accordingly, defendants are entitled to summary judgment in their favor, as a matter of law, on the injunctive claims asserted against them regarding the Orchard Town Center Store.
B. Plaintiffs have not established viable ADA claims against defendants with respect to the Hollister store located at the Park Meadows mall.
Defendants are also entitled to summary judgment in their favor with respect to the Park Meadows Store. (Fifth Amended and Class Action Complaint, supra, at ¶¶ 59-71.) In the
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alternative, the Court should set aside its earlier partial summary judgment ruling with respect to this Store.
1. The relevant facts have changed since the Court’s previous ruling on plaintiffs’ motion for partial summary judgment.
The Court previously found that the elevated entry door at the Park Meadows Store does not comply with the statutory requirements of the ADA or the 1991 ADA regulations. (Order, supra, Doc. # 109.) It noted that the accessible level entry doors located on each side of the elevated entry door “lead to either the male or female oriented side of the store and therefore necessitate additional travel through a possibly crowded store if one needs to reach the side devoted to the other gender.” (Id., at 9-10.) The Court stated: “[T]here do not appear to be any signs outside the store explaining which side has goods for males or for females;” thus, “close to 50% of the side door entrants would need to make their way through the store to the other side,” and the side doors do not “permit the same pattern of use as the raised entry door and equal access to all merchandise.” (Id., at 10.)
The Court held that the two accessible entry doors at the store do not comply with 1991 ADA Standard 4.1.3(8)(a), which requires that, “[w]here feasible, accessible entrances shall be the entrances used by the majority of the people visiting or working in the building.” (Id., at 1112.)5 The Court stated that the accessible doors “do not permit the same pattern of use as the raised entry door and equal access to all merchandise.” (Order, supra, Doc. # 161, at 7.)
Defendant Hollister has made alterations to the entrance of the Park Meadows Store since the Court’s ruling on plaintiffs’ motion for partial summary judgment. It added door handles to
5 When Congress enacted the ADA in 1990, it mandated that the United States Architectural Barriers Compliance Board issue guidelines to implement Title III of the statute. 42 U.S.C. 12204. The Access Board subsequently issued the ADA Accessibility Guidelines (“ADAAG”), codified at 36 C.F.R. pt. 1191, App. A. As directed by Congress, the Department of Justice adopted the ADAAG as its own ADA regulations, denominated the 1991 Standards for Accessible Design (“1991 ADA Standards”), codified at 28 C.F.R. pt. 36, App. A. See 28 C.F.R. 36.406. The Department of Justice subsequently issued revised ADA regulations, the 2010 Standards for Accessible Design (“2010 ADA Standards”), pursuant to the same statutory authority.
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the accessible entry doors, to increase their visibility and distinguish them from the windows at the front of the store, and it added signage to clearly indicate which accessible entry door leads directly to men’s clothing and which accessible entry door leads directly to women’s clothing. (Bondy Declaration, ¶¶ 10-12.) Accordingly, these entry doors now permit the same pattern of use as the elevated entry door, which similarly offers customers a choice of entering the portion of the store containing men’s clothing or the portion of the store containing women’s clothing. (Id., ¶¶ 14-16.)6
As set forth below, these alterations bring the Store into full compliance with all ADA regulations, and this precludes any liability under the ADA. There is no dispute as to any material fact, and defendants are entitled to summary judgment with respect to plaintiffs’ claims against the Park Meadows Hollister store as a matter of law.
2. Compliance with ADA regulations constitutes compliance with the ADA.
The Court’s previous ruling on partial summary judgment did not rely solely on the ADA regulations. It held that “[c]ompliance with numerous precise design standards does not protect [defendants] from violating the broad statutory requirements” of the ADA. Order, supra, Doc. # 109, at 11, citing 42 U.S.C. 12182(b)(1)(A)(iii) (“[i]t shall be discriminatory to provide an individual … on the basis of a disability … with a good, service … or accommodation that is different or separate from that provided to other individuals…”), and 42 U.S.C. 12182 (b)(1)(B) (‘[g]oods, services… and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate …”). The Court thus rejected “[defendants’] micro view that allows them to comply with the details in the regulations without taking the aims of the ADA to heart and fulfilling its overarching aims.” (Id., at 11.) “Compliance with numerous
6 If it would be of assistance to the Court, Defendants invite the Court or its designee to view the premises in-person in the presence of counsel for both parties.
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precise design standards does not protect them from violating the broad statutory requirements.” (Id.)
The Court reached the opposite conclusion in Colorado Cross-Disability Coalition v. Too, 344 F.Supp.2d 707, 710 (D. Colo. 2004), where it found that it would be “inappropriate” to “interpret the ADA ‘generally’ under the ‘full and equal enjoyment’ language of 42 U.S.C. 12182(a)” without regard to the specific requirements of ADA regulations. Its ruling in that case was consistent with the views of many other courts around the country. In White v. Divine Investments, Inc., 286 Fed. Appx. 344 (9th Cir. 2008), for example, the Circuit Court rejected the plaintiff’s argument that she could properly “maintain a discrimination action under Title III of the ADA for violation of her ‘full and equal enjoyment’ of [defendant’s retail store], irrespective of the existence of ADA Accessibility Guidelines violations”.
White is mistaken. No court has ever held that a Title III discrimination action based on the design of a public accommodation may be maintained in the absence of an ADAAG violation, nor does the text of the statute support such a reading. In Title III design cases, the ADAAG define discrimination, and absent an ADAAG violation, no discrimination has occurred. 286 Fed.Appx. at 345 (emphasis added). The Ninth Circuit had earlier reached the same conclusion in Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1084-85 (9th Cir. 2004) (holding that plaintiff must show a violation of ADA regulations to establish liability under the ADA). The First Circuit agreed in U.S. v. Hoyts Cinema Corp., 380 F.3d 558, 565-66 (1st Cir. 2004) (holding that an ADA Title III claim was properly dismissed “to the extent that it sought to impose obligations beyond the more specific standard,” i.e., 1991 Standard 4.33.3; “it makes more sense” to focus upon the ADA regulations rather than a “vaguer set of statutory provisions framed in more general terms”), as the Fifth Circuit did in Lara v. Cinemark USA, Inc., 207 F.3d 783, 789 (5th Cir. 2000) (“Congress
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granted the DOJ, in conjunction with the Access Board, the authority to promulgate regulations under the ADA in order to provide the owners and operators of places of public accommodation with clear guidelines,” and ADA liability cannot be imposed “in the absence of specific regulatory guidance”).
Many district courts have faced this issue and have also found that compliance with the ADA regulations constitutes compliance with the ADA. See, e.g., U.S. v. National Amusements, Inc., 180 F.Supp.2d 251, 255 (D. Mass. 2001) (noting “Congress’s intent to have the specific [ADA] regulations exclusively set forth the requirements for architectural design issues;” “compliance with the [ADA] design standards for new construction would be sufficient to satisfy Title II obligations with respect to the design of a structure”); White v. Cinemark USA, Inc., No. 2:04-cv-397, 2005 U.S. Dist. LEXIS 42134, at *13 (E.D. Cal. 2005) (“the ADA’s general nondiscriminatory language must be considered in light of the regulatory context rather than evaluated in vacuum”). “To hold otherwise would render compliance with these regulations meaningless, because a fully complaint structure would always be subject to a claim” under the ADA. National Amusements, supra, 180 F.Supp.2d at 258.
Accordingly, the entrance to the Park Meadows Store complies with the ADA, and defendants are entitled to summary judgment with respect to plaintiffs’ claims for injunctive relief against that store, unless plaintiffs establish that the entrance violates applicable ADA regulations.
3. The entrance of the Park Meadows Hollister store complies with the 2010 ADA regulations and summary judgment in favor of Defendants is proper.
This Court previously found that the entrance to the Park Meadows Store violates the 1991 ADA regulations. (Order, supra, Doc. # 109, at 4, 5, 6, 7, 8, 11-12.) However, the
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Department of Justice published revised regulations in 2010 that significantly changed the 1991 requirements that plaintiffs relied upon in their Motion for Partial Summary Judgment. The revised standards establish the ADA requirements for alterations undertaken after March 15, 2012, as in the present case. See 28 C.F.R. 36.406(a)(3). Moreover, the 2010 ADA Standards provide the criteria for compliance with the ADA, regardless of the 1991 requirements:
If the 2010 Standards reduce the technical requirements or the number of required accessible elements below the number required by the 1991 Standards, the technical requirements or the number of accessible elements in a facility subject to this part may be reduced in accordance with the requirements of the 2010 Standards. 28 C.F.R. 36.211(c). The revisions made in the 2010 regulations negate plaintiffs’ contentions. First, the 1991 ADA Standard stating that, where feasible, “accessible entrances shall be the entrances used by the majority of people visiting” the store was removed from the 2010 ADA Standards. (Compare 1991 ADA Standard 4.1.3(8)(a) with 2010 ADA Standards 206.4, 206.5, and 404.2.) Accordingly, the primary provision upon which plaintiffs have relied during this litigation no longer applies. Instead, under the 2010 ADA Standards, accessible routes must be “in the same area” as “general circulation paths.” See 2010 ADA Standard 206.3 (regarding “Location”) (“[a]ccessible routes shall coincide with or be located in the same area as general circulation paths.”) Second, 2010 ADA Standard 206.5.1 states: “Each entrance to a building or facility required to comply with 206.4 shall have at least one door, doorway, or gate complying with 404.” This provision thus explicitly recognizes that an “entrance” may consist of more than one entry door, and that an “entrance” may have entry doors that are inaccessible, as long as the “entrance” includes “at least one door, doorway, or gate complying with [2010 ADA Standard]
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404.” (2010 ADA Standard 206.5.1) (emphasis added). If an “entrance” could have only one entry door, then this provision would not exist. If all entry doors in an “entrance” had to be accessible, then this provision would not exist.
Third, even if the Park Meadows Store were deemed to have three entrances (instead of one), the Store would still comply with the 2010 ADA Standards because 2010 ADA Standard 206.4.1 requires that 60% of public entrances must meet ADA accessibility requirements, but (unlike 1991 ADA Standard 4.1.3(8)(a)) contains no requirement regarding the location of these public entrances. Again, if all entrances to a site had to be accessible, then this provision would not exist.
Consequently, the entrance of the Park Meadow Store complies with the 2010 ADA Standards as a matter of law. There can be no doubt that the accessible routes into the Store “are located in the same area” as the general circulation path into the Store. All three of the Store’s entry doors are directly adjacent to one another on the front façade of the Store, and thus all three entry doors are “in the same area.” Moreover, the “general circulation path” inside the Store for any customer, once that customer has chosen to enter either the men’s side or the women’s side of the store, begins at exactly the same place regardless of whether the customer enters through the porch-like structure or the accessible entry door. (Bondy Declaration, ¶¶ 14-15.) Finally, signage at those doors now informs the public whether the doors enter into the men’s or women’s side of the store, thereby permitting the same “pattern of use” for all customers. (Bondy Declaration, ¶¶ 10-12.) As a result, the Park Meadows Store’s entrance complies with Section 206.3 of the 2010 ADA Standards.
Furthermore, the Park Meadows Store complies with the 2010 ADA Standards regardless of whether this Court determines that the Park Meadows Store has (as defendants have
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maintained) a “single entrance” with multiple entry doors, or whether this Court determines instead that the Store has three separate entrances. If the Store has a “single entrance” it complies with 2010 ADA Standards 206.4 and 206.5.1 because there are three entry doors, two of which are accessible. If the Store has three separate entrances it complies with 2010 ADA Standard 206.4.1 because more than 60% of those entrances are accessible. In either event, the requirements of the 2010 ADA Standards are satisfied, and that is sufficient to comply with the ADA, irrespective of the 1991 regulations, pursuant to 28 C.F.R. 36.211(c). Accordingly, summary judgment in favor of defendants is proper.7
4. In the alternative, the Court should vacate its August 31, 2011 Order. In the alternative and at a minimum, the Court should revisit and vacate its previous ruling on this issue, which was made prior to the alterations to the store’s entrance, if it finds that the 2010 ADA Standards have not been met as a matter of law. In its partial summary judgment Order, the Court found (in the absence of evidence submitted by plaintiffs) that the elevated entry door was “obvious[ly]” the entry door “used by a majority of customers” in violation of 1991 Standard 4.1.3 (8)(a). The Court stated it was “not even clear that there are doors on either side of the porch”, and there are no “signs outside the store explaining which side has goods for males and for females….” The Court assumed that “Close to 50% of the side [accessible] door entrants would need to make their way through the store to the other side…. Clearly the side [accessible] doors do not permit the same pattern of use as the raised entry door and equal access to all merchandise….” (Order, supra, Doc. # 109, at 10; internal punctuation omitted.)
7 Defendants would also be entitled to summary judgment under the 1991 ADA regulations, even if they had not been suspended. Since the three entry doors at the Park Meadows Store are a “single entrance,” and all customers visiting the Store enter the Store through that “entrance” regardless of which entry door they use, the Store would have complied with 1991 ADA Standard 4.1.3(8)(a).
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The Court should revisit and vacate its Order in light of the alterations to the entrance of the Park Meadows Store, as well as the changes to the applicable ADA regulations. The accessible doors on each side of the elevated entry door are now clearly distinguishable from the windows and easily recognizable as doors, due to the addition of traditional door handle hardware. (Bondy Declaration, ¶¶ 10-12.) In addition, signs have been added at the entrance explaining which side of the store displays goods for males and which side displays goods for females, so that the accessible doors now permit the same pattern of use as the elevated entry. (Id., ¶ 10.) Defendants have also submitted affirmative evidence that the circulation paths are now “the same” for all customers. (Id., ¶¶ 14-16.) These alterations resolve the Court’s prior concerns, or at the very least raise a genuine issue of material fact.
Moreover, a primary basis of plaintiffs’ prior arguments, and the Court’s Order, appeared to be the assumption that most customers visiting the Store would use the elevated entry door as opposed to the accessible entry doors. This assumption is no longer relevant in light of the changes to the 2010 ADA Standards, but even if it were, after the alterations plaintiffs can no longer simply presume that most customers will enter the store through the elevated entry door given the visibility of the accessible entry doors. It is just as likely that customers will use the visible accessible entry doors as the elevated entrance.
Accordingly, defendants respectfully request that the Court enter summary judgment in their favor with respect to the Park Meadows Store, or, in the alternative, that the Court set aside its prior partial summary judgment ruling as to this Store. V. Conclusion
Defendants are entitled to summary judgment in their favor as to claims asserted by plaintiffs regarding the Orchard Town Center Store and the Park Meadows Store. Summary
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Case 1:09-cv-02757-WYD-KMT Document 164 Filed 05/03/12 USDC Colorado Page 19 of 21 judgment is appropriate with respect to the injunctive claims asserted against the Orchard Town Center Hollister store (because they are moot), and against the Park Meadows Store (because it has been altered and does not violate ADA regulations). Accordingly, defendants move the Court to enter summary judgment in their favor on plaintiffs’ claims for injunctive relief, or, in the alternative, to set aside its previous partial summary judgment ruling.
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Respectfully submitted, s/ Mark A. Knueve ___________________________________ Thomas B. Ridgley Mark A. Knueve Richard T. Miller VORYS, SATER, SEYMOUR AND PEASE LLP 52 E. Gay Street P.O. Box 1008 Columbus, Ohio 43215 Tel: (614) 464-6387 Fax: (614) 719-4808 maknueve@vorys.com HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, CO 80201-8749 Tel: (303) 295-8749 Fax: (303) 975-5464 geurich@hollandhart.com Counsel for Defendants
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CERTIFICATE OF SERVICE
I hereby certify that on May 3, 2012, I have caused to be electronically filed the foregoing with the Clerk of Courts using CM/ECF system which will send notification of such filing to the following e-mail addresses:
Kevin W. Williams Andrew C. Montoya Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, Colorado 80203 Voice: (303) 839-1775 Facsimile: (303) 839-1782 E-mail: kwilliams@ccdconline.org E-mail: amontoya@ccdconline.org
Amy R. Robertson Fox & Robertson, P.C. 104 Broadway, Suite 400 Denver, Colorado 80203 Voice: (303) 595-9700 Facsimile: (303) 595-9705 E-mail: arob@foxrob.com
Bill Lann Lee Julia Campins Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 476 - 9th Street Oakland, CA 94607 Voice: (510) 839-6824 Facsimile: (510) 839-7839 E-mail: blee@lewisfeinberg.com E-mail: jcampins@lewisfeinberg.com

5/03/2012 13704943

/s/ Mark A. Knueve Mark A. Knueve Richard T. Miller OF VORYS, SATER, SEYMOUR & PEASE LLP 52 E. Gay Street Columbus, Ohio 43215 Phone: (614) 464-6400 Fax: (614) 464-6350 maknueve@vorys.com
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Wiley Y. Daniel
Civil Action No. 09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation; ANITA HANSEN; and JULIE FARRAR, on behalf of themselves and all others similarly situated,
Plaintiffs, v. ABERCROMBIE & FITCH CO., et al.,
Defendants.
ORDER
I. BACKGROUND THIS MATTER comes before the Court on Plaintiffs’ Motion for Summary
Judgment, Entry of Injunction, and Entry of Judgment, filed April 27, 2012 [ECF No. 162], and Defendants’ Motion for Summary Judgment or, In the Alternative, To Vacate August 31, 2011 Order [ECF No. 164]. The motions have been fully briefed by the parties and the United States Department of Justice (“DOJ”) has filed its Statement of Interest On the Parties’ Motions for Summary Judgment (“Statement of Interest”). [ECF No. 181]. Based on these briefs and oral argument to the Court on January 24, 2013, I grant Plaintiffs’ motion and deny Defendants’ motion as more fully set forth below.
Plaintiffs, a class of individuals who use wheelchairs or scooters for mobility, challenge the raised porch entrances at approximately 248 Hollister brand stores

operated by Defendant Abercrombie & Fitch Stores LLC. On August 31, 2011, this
Court held that the raised porch entrances at two stores in Colorado were in violation of
section 4.1.3(8) of the 1991 Department of Justice Standards for Accessible Design
(“1991 Standards”), 28 C.F.R. pt. 36, app. D (2012), and therefore of Title III of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12183(a)(1). Colo. Cross-Disability
Coal. v. Abercrombie & Fitch Co., 835 F. Supp. 2d 1077, 1080 (D. Colo. 2011). [ECF
No. 109.] On April 20, 2012, this Court certified a class defined as follows:
all people with disabilities who use wheelchairs for mobility who, during the two years prior to the filing of the Complaint in this case, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. Store in the United States on the basis of disability because of the presence of an Elevated Entrance.
Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., 2012 WL 1378531, at * 1, 7 (D.
Colo. Apr. 20, 2012). [ECF No. 161.]
Following certification of the class, Plaintiffs moved to extend the summary
judgment holding to the remainder of the Hollister stores with Raised Porch Entrances.
Defendants simultaneously moved for summary judgment and/or to vacate the Court’s
August 31, 2011 order on the grounds that they had made modifications to the
remaining open store visited by the Representative Plaintiffs, and that the stores in
question were in compliance with the 2010 DOJ Standards for Accessible Design (“2010 Standards”).1 It is these motions that are currently before the Court.

1

The 2010 Standards consist of the 2004 ADAAG, 36 C.F.R. pt. 1191,

apps. B & D, and subpart D of 28 C.F.R. pt. 36. See 28 C.F.R. § 36.104 (definitions).

The 2010 Standards and the DOJ’s guidance thereto are published on the Department’s

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II. FINDINGS OF FACT 1. Defendant Abercrombie & Fitch Co., through subsidiaries Abercrombie &
Fitch Stores, Inc., and JM Hollister, LLC, (collectively “Defendants”), operates approximately 500 Hollister brand stores around the country. See Defs.’ Mot. for Summ. J. or, In the Alternative, to Vacate August 31, 2011 Order [ECF No. 164 at ¶ 1].
2. Plaintiffs Julie Farrar and Anita Hansen (the “Representative Plaintiffs”) are individuals who live in the Denver area. Both are substantially limited in the major life activity of walking, and both use wheelchairs for mobility.
3. Plaintiff Colorado Cross Disability Coalition (“CCDC”) is a Colorado nonprofit that advocates for the rights of individuals with disabilities and their allies.
4. The front areas of approximately 248 of the Hollister stores around the country are configured similarly. They contain a raised front porch that leads to two possible store entrances: one to the “Dudes” side, containing men’s clothing, and the other to the “Bettys” side, containing women’s. Steps lead up to the porch from the mall floor and then down from the porch into the two sides of the store. Decl. of Amy F. Robertson in Support of Summary Judgment, Entry of Injunction, and Entry of Judgment, Ex. 7 (“Robertson Decl.”) [ECF No. 172, 172-1 through -3], Defs.’ Combined Opp’n to Pls’ Amd. and Supplemented Mot. for Summ. J. and Reply Brief in Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Combined Opp’n”) at ii ¶ 2 [ECF No. 179]. These porches, which will be referred to herein as “Raised Porch Entrances,” are accessible
website. http://www.ada.gov/2010ADAstandards_index.htm -3-

only by steps, and are therefore inaccessible to people who use wheelchairs. Robertson Decl. Ex. 7; Defs.’ Combined Opp’n at iv ¶ 12.
5. The purpose of this Raised Porch Entrance “is to give the stores the aesthetic appearance of a Southern California surf shack . . . .” Decl. of Michael Bondy (“Bondy Decl.”) [ECF No. 164-1] ¶ 4.2 As such, the Raised Porch Entrance “is a significant aspect of the stores’ branding and marketing efforts.” Decl. of Adam Hill (“Hill Decl.”) [ECF No. 93-2] ¶ 8;3 Def’s Combined Opp’n at ii, ¶ 3. The Raised Porch Entrance was included in the design “to create . . . an entry to a house in southern California that you would walk up onto the porch or walk down into the porch, to enter like you would do at a beach house.” Hill Dep. 37:9 - 22; see also id. at 30:15 - 31:15; 33:19 - 34:7 (Robertson Decl. Ex. 5 [ECF No. 171-2]).
6. The Raised Porch Entrances at Hollister stores have upholstered chairs, a marketing image, and mannequins displaying merchandise. Bondy Dep. 54:9 - 55:3 (Robertson Decl. Ex. 4). While the furniture is not intended as seating, customers are permitted to sit there. See id. 55:14 - 56:1. Where the porch is raised, i.e., at the approximately 248 Hollister stores at issue here, customers in wheelchairs do not “have the ability to touch or feel the clothes” on display there or otherwise take part in this Hollister experience. See id. 58:19 - 59:2.

2

Michael Bondy is the Senior Project Manager in the Store Construction

Department of Abercrombie & Fitch Stores, Inc. Bondy Decl. ¶ 1.

3

Adam Hill is Abercrombie & Fitch Co.’s Vice President of Store Design.

Hill Dep. 19:21 - 20:2.

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7. Shoppers who use wheelchairs are not able to enter the stores through the Raised Porch Entrances. Rather, they enter through accessible doors -- on the same level as the mall floor -- to each side of the Raised Porch Entrance. The accessible side entrances are designed to look like French doors similar to the inoperable French doors farther to the left and right of the accessible side entrances. Hill Dep. 107:2 - 108:10.
8. Overall, the visual impression is of a main, decorated, primary but inaccessible entrance in the center, with smaller, inferior, undecorated accessible entrances to each side.
9. All of the Hollister stores at issue were constructed after January 26, 1993 but before September 15, 2010. Robertson Decl. ¶ 3 & Ex. 1 [ECF No. 171-2].
10. Representative Plaintiffs have patronized the Hollister stores at the Orchard Towne Center and Park Meadows malls in the Denver area. Both have experienced discrimination at those stores, and both have expressed intent to return to the Park Meadows store. See Order [ECF No. 161] at 9-10.
11. The Orchard Towne Center Hollister store is now closed. Bondy Decl. ¶ 8. 12. Following this Court’s decisions granting partial summary judgment to Plaintiffs and certifying a nationwide class, Defendants made two changes to the Park Meadows Hollister store. Signage has been added at each accessible side entrance indicating whether it enters into the “Dudes” side of the store (displaying men’s clothing) or the “Bettys” side of the store (displaying women’s clothing). In addition, operable
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door handles have been added (in addition to the push buttons) to each of these accessible doors. Bondy Decl. ¶ 10. III. ANALYSIS
A. Standard of Review Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). “When applying this standard, [the court] must ‘view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.’” Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (citation omitted). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Sw. Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991). B. Standing This Court has previously held that the Representative Plaintiffs have standing to challenge the Raised Porch Entrances under Title III of the ADA. Order [ECF No. 94] at 5-8 (denying Defendants’ motion to dismiss for lack of standing); Order [ECF No. 161] at 9-11 (holding, as part of the typicality analysis for class certification, that the Representative Plaintiffs had standing). Defendants argue that I must now reconsider
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the Representative Plaintiffs’ standing under a summary judgment standard, based on evidence rather than pleadings. My determination in the class certification order was, however, based on the same evidence Defendants now submit. I reaffirm my conclusion that the Representative Plaintiffs have standing to challenge the Raised Porch Entrances.
Defendants make two further arguments: that there is no evidence that the Representative Plaintiffs have returned to a Hollister store since Defendants added signage and door handles; and that Plaintiffs have not identified a Representative Plaintiff or class member with standing as to every store with a Raised Porch Entrance. I will address each argument in turn.
1. Recent Changes Defendants argue that the Representative Plaintiffs lack standing because they have not returned to that store since the changes were made.4 However, the changes at the Park Meadows store -- signage and door handles on the entrances to the sides of the Raised Porch Entrances, see supra -- are not material to the discrimination alleged or the injury suffered when the Representative Plaintiffs go to the store and encounter the inaccessible Raised Porch Entrance. Because the Representative Plaintiffs have encountered and will continue to encounter discrimination at the Park Meadows store,

4

Defendants argue that since the Orchard Towne Center Hollister store is

now closed, the case is moot as to that store. However characterized, any injunction

will not cover closed stores.

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they have standing regardless of whether they have attempted to visit since the recent changes.
2. Standing to Challenge Hollister Stores Nationwide Defendants also argue that Plaintiffs must establish individual standing with respect to each Hollister store covered by the class definition. This is not required. Now that the Court has certified the class, the question with respect to the remaining stores is whether the class has standing. There is no question that it does, as it was defined to include individuals who use wheelchairs who “were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. Store in the United States on the basis of disability because of the presence of an Elevated Entrance.” Order [ECF No. 161] at 2. That is, the class is precisely those individuals who have standing to challenge the steps at Hollister stores nationwide. “[A] certified class becomes an independent juridical entity capable of satisfying the standing requirements of Article III.” Clark v. State Farm Mut. Auto. Ins. Co., 590 F.3d 1134, 1138 (10th Cir. 2009). Once the court has determined that the Representative Plaintiffs have individual standing and that they satisfy the commonality and typicality requirements of Rule 23(a), the class -- once certified -- has standing to challenge the violations encompassed within the class definition. For example, in Lucas v. Kmart Corp., 2005 WL 1648182 (D. Colo. July 13, 2005), the plaintiffs sought certification of a nationwide class under Title III of the ADA challenging barriers to
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wheelchair access at 1,500 Kmart stores. Judge Kane held that Kmart’s “objection regarding representative Plaintiffs’ standing to assert claims on behalf of individuals who patronized other Kmart stores is subsumed by my determination that the Rule 23(a) prerequisites have been met.” Id. at *3; see also Campion v. Old Republic Home Prot. Co., Inc., 272 F.R.D. 517, 525-26 (S.D. Cal. 2011) (“Generally standing in a class action is assessed solely with respect to class representatives, not unnamed members of the class. It is not required that each member of a class submit evidence of personal standing.” (internal citations omitted).)
In making this argument, Defendants cite only to non-class cases holding that individuals or organizations were required to establish standing with respect to each facility they challenged. However, it is precisely the fact that the class satisfies Rule 23(a) -- an element missing from all of Defendants’ cases -- that provides class standing to challenge all of the Hollister stores within the class definition.
Were Plaintiffs required to identify a named plaintiff or class member with standing as to each store within the class definition, this would convert the case from a class action to a massive individual action, defeating the efficiencies of Rule 23. See 1 Newberg on Class Actions § 2:3 (5th ed.) (“[I]f class members other than the named plaintiffs were required to submit evidence of their standing, then the core function of class actions, wherein named plaintiffs represent a passive group of class members, would be significantly compromised.”). It would also significantly undermine Rule 23(b)(2)’s historic function as a tool to challenge discrimination that affects a class
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of people in the same way. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997) (“Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of Rule 23(b)(2) classes (quoting Adv. Comm. Notes, 28 U.S.C. App., at 697)); Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2558 (2011) (Rule 23(b)(2) “reflects a series of decisions involving challenges to racial segregation -- conduct that was remedied by a single classwide order”).
C. Title III of the Americans with Disabilities Act Title III of the ADA prohibits discrimination on the basis of disability by those who own or operate places of public accommodation. 42 U.S.C. § 12182(a). In enacting the ADA, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities.” 42 U.S.C. § 12101(a)(2). The ADA’s legislative history states that “[i]ntegration is fundamental to the purposes of the ADA. Provision of segregated accommodations and services relegate persons with disabilities to second-class citizen status.” H. Rep. 101-485(III), 101st Cong., 2d Sess, at 56, reprinted in 1990 U.S.C.C.A.N. 445, 479. “‘[T]he goal [is to] eradicat[e] the “invisibility of the handicapped.”’ Separate-but-equal services do not accomplish this central goal and should be rejected.” Id. at 50, 1990 U.S.C.C.A.N. at 473. The ADA provides a “broad mandate” to “eliminate discrimination against disabled individuals, and to integrate them ‘into the economic and social mainstream of American life.’” PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (quoting H.R.Rep. No. 101–485, pt. 2, p. 50 (1990), reprinted in 1991 U.S.C.C.A.N. 303, 332).
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This integration mandate is found in two sections of the statute. Title III makes it discriminatory to provide individuals with disabilities “with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary” to provide facilities, accommodations and the like that are as effective as those provided others. 42 U.S.C. § 12182(b)(1)(A)(iii). It also requires that “[g]oods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual.” Id., § 12182(b)(1)(B).
Section 303 of the ADA required that all facilities designed and constructed after January 26, 1993 must be “readily accessible to and useable by” individuals with disabilities. 42 U.S.C. § 12183(a)(1). The statute further instructed the DOJ to adopt implementing standards and regulations. 42 U.S.C. § 12186(b). On July 26, 1991, the DOJ adopted the Americans with Disabilities Act Accessibility Guidelines as the 1991 Standards. 28 C.F.R. § 36.406(a) (1991). The 1991 Standards are now published as Appendix D to title 28, part 36 of the Code of Federal Regulations. On September 15, 2010, the DOJ amended its regulations and adopted the 2010 Standards. See supra n. 1.
Because the stores at issue in this case were constructed after January 26, 1993 but before September 15, 2010, they are required to comply with the 1991 Standards. 28 C.F.R. § 36.406(a)(1) (2012). The only exception to this requirement is that, if the
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2010 Standards “reduce the technical requirements or the number of required accessible elements below the number required by the 1991 Standards,” the newer standards apply. 28 C.F.R. § 36.211(c) (2012).
1. The 1991 Standards The 1991 Standards required that at least 50% of all public entrances be accessible and that, “[w]here feasible, accessible entrances shall be the entrances used by the majority of people visiting or working in the building.” Id. § 4.1.3(8)(a). This Court has previously held that, by requiring individuals with disabilities to enter through the side entrances, the Raised Porch Entrances violated this provision and therefore Title III of the ADA. Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., 835 F. Supp. 2d 1098, 1107 (D. Colo. 2011) [ECF. No. 109]. The combination of the inaccessible Raised Porch Entrance and the side accessible entrances also violates sections 12182(b)(1)(A)(iii) and 12182(b)(1)(B), because it provides separate facilities and does not provide an integrated setting for people with disabilities.
2. The 2010 Standards The 2010 Standards require that 60% of all public entrances be accessible. Id. § 206.4.1. This section -- unlike the 1991 Standards’ section governing the percentage of entrances required to be accessible -- does not contain the “majority of the people” language. Defendants argue that this therefore “reduce[s] the technical requirements” of the 1991 Standards so that, by operation of 28 C.F.R. § 36.211(c), Hollister stores
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need only comply with the 2010 Standards. Defendants further argue that they comply
with the 2010 Standards. The Court will examine each of those arguments in turn.
a. The 1991 and 2010 Standards Governing Entrances
While Defendants are correct that the “majority of the people” language from
section 4.1.3(8)(a) of the 1991 Standards is not present in the 2010 Standards, see id.
§ 206.4.1, that difference does not thereby “reduce the technical requirements” of the
1991 Standards governing entrances. The DOJ commentary to section 206.4.1 states
that that section was designed to clarify the number of required accessible entrances,
and was “intended to achieve the same result as the 1991 Standards.” Analysis and
Commentary on the 2010 ADA Standards for Accessible Design, 28 C.F.R. pt. 36, app.
B at 824 (2012). As the DOJ explained in its Statement of Interest:
Defendants’ argument [that their raised porches comply with the 2010 Standards] is misplaced. Many changes were made in the 2010 Standards after a section by section review of the 1991 Standards. The changes clarified and simplified the 2010 Standards as compared to the 1991 Standards. One of the significant goals of the changes was to eliminate duplication or overlap in Federal accessibility guidelines, as well as to harmonize the 2010 Standards with model codes that are the basis of many State and local building codes. See Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. 56,236, 56,245-46 (Sept. 15, 2010).
The Department of Justice’s interpretive guidance accompanying the 2010 Standards specifically states that the revision regarding accessible public entrances is intended to achieve the same result as the 1991 Standards. Consequently, this Court’s holding that the raised porches failed to comply with the 1991 Standards compels the conclusion that they also violate the 2010 Standards.
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Id. at 2-3. This guidance is entitled to deference because it represents the DOJ’s authoritative interpretation of its own regulations. As the Supreme Court has held, an agency’s interpretation of its own regulation is controlling unless “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (citation omitted); accord Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (“We must give substantial deference to an agency’s interpretation of its own regulations.”).
The Raised Porch Entrances continue to violate the 2010 Standards governing entrances.5 This interpretation is not only consistent with the agency’s interpretation of its own regulations, it is consistent with the fundamental purpose and explicit language of the ADA requiring integration and prohibiting separate-but-equal facilities. See 42 U.S.C. §§ 12101(a)(2); 12182(b)(1)(A)(iii), (b)(1)(B). “[A] regulation must be interpreted in such a way as to not conflict with the objective of its organic statute.” Time Warner Entm’t Co. v. Everest Midwest Licensee, LLC, 381 F.3d 1039, 1050 (10th Cir. 2004).6

5

Because the 2010 Standards governing entrances do not “reduce the

technical requirements or number of required accessible elements below the number

required by the 1991 Standards,” section 36.211(c) of the regulations does not apply,

and there is no reason to consider the 2010 Standards in evaluating liability. However,

because any remedial work will have to comply with the currently-applicable 2010

Standards, I evaluate those Standards as well.

6

Defendants argue that this Court’s references to the governing statute

suggest that the Court is requiring a facility that complies with the Standards to meet a

higher standard of nondiscrimination under the language of the statute. Not so.

References to the statutory language demonstrate that this Court’s (and the DOJ’s)

interpretation of the regulation is consistent with the language and purpose of the

statute. As the First Circuit stated, in interpreting and applying requirements of the 1991

Standards, “the statute as a whole remains highly relevant. It provides the purpose and

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Defendants also argue, with respect to both the 1991 and 2010 Standards, that the Raised Porch Entrances and the accessible entrances to each side constitute a single entrance. Defendants further argue that the entrances -- construed as a single entrance -- comply with section 206.5.1 of the 2010 Standards, which requires that “[e]ach entrance to a building or facility required to comply with 206.4 shall have at least one [accessible] door.” While this might permit, say, a bank of nearly identical doors to contain only one accessible door, the language and purpose of the statute do not permit an interpretation that allows a door that is qualitatively different or superior to remain inaccessible while inferior side doors are the only accessible entrances. Furthermore, as noted in this Court’s order granting partial summary judgment, it is the position of the DOJ that, because the doors at Defendants’ stores are on different elevations, the definition of “entrance” in section 3.5 of the 1991 Standards precludes them from being considered a single entrance. See Order [ECF No. 109] at 8 n. 7; see also The United States of America’s Statement of Interest on Plaintiffs’ Motion for Partial Summary Judgment [ECF No. 97] at 7 n.9. The definition of “entrance” in the 2010 Standards is materially identical to that of the 1991 Standards, compare 1991 Standards § 3.5 with 2010 Standards § 106.5. The Court agrees with the DOJ’s reasoning: the Raised Porch Entrances and the accessible side entrances cannot be considered a single entrance.
general objectives that cast light on the meaning of the regulation at issue.” United States v. Hoyts Cinemas Corp., 380 F.3d 558, 566 (1st Cir. 2004).
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b. The 2010 Standards Governing Accessible Spaces As the DOJ points out, “where a space contains more than one use, ‘each portion shall comply with the applicable requirements for that use.’” DOJ Statement of Interest at 10 (quoting 2010 Standards, § 201.2). Here, the Raised Porch Entrances must comply with the standards governing entrances, which, as explained above, they do not. In addition, because each Raised Porch Entrance is also a space in the Hollister store that Defendants make available to individuals who do not require wheelchairs for mobility, they must comply with regulations governing circulation paths and accessible routes to accessible spaces. Again, they fail to comply with these regulations. The 2010 Standards require that -- unless covered by an exception -- if nondisabled customers can get to a space, customers who use wheelchairs have to be able to get to that space as well. “At least one accessible route shall connect accessible building or facility entrances with all accessible spaces and elements within the building or facility which are otherwise connected by a circulation path,” unless exempted by an applicable exception. 2010 Standards § 206.2.4. A circulation path is defined as “way of passage provided for pedestrian travel, including . . . stairways, and landings.” Id. § 106.5. Because the porches are connected to mall and store entrances by a circulation path -- the steps -- pursuant to section 206.2.4, they must be on an accessible route. This is in keeping with the broad scoping requirement of the 2010 Standards, which mandates that “[a]ll areas of newly designed and newly constructed
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buildings and facilities and altered portions of existing buildings and facilities shall comply with these requirements.” Id. § 201.1. The upshot of section 206.2.4 is that -unless covered by an exception -- if you can walk to a space, you must be able to roll to it.
The exceptions to 206.2.4 are narrow and specific, including, for example, certain areas of detention facilities, residential facilities, transient lodging, and air traffic control towers, as well as areas of courtrooms, portions of assembly areas that do not include accessible seating, and mezzanines7 in single-story buildings. §§ 206.2.3, Exceptions 3-6; 206.2.4, Exceptions 1-3. There is no exception for porches or raised areas of retail spaces. Indeed, the Advisory to section 206.2.4 states, “[a]ccessible routes must connect all spaces and elements required to be accessible including, but not limited to, raised areas and speaker platforms.” And although the 2010 Standards specifically except certain “raised areas,” this exception does not include a raised portion of a retail store. Id. § 203.3 (“[a]reas raised primarily for purposes of security, life safety, or fire safety, including but not limited to, observation or lookout galleries, prison guard towers, fire towers, or life guard stands shall not be required to comply with these requirements or to be on an accessible route.”) Hollister’s Raised Porch Entrances are not covered by any applicable exception and therefore, pursuant to section 206.2.4, must be on an accessible route.

7

The porches are not mezzanines. By definition, “[m]ezzanines have

sufficient elevation that space for human occupancy can be provided on the floor

below.” 2010 Standards § 106.5. There is no space for human occupancy beneath the

porches.

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The DOJ’s Statement of Interest summarizes the situation:
[T]he raised porches at issue in this case function not only as entrances; they also are part of the public retail space of the store. As such, they are required to be accessible, under both the 1991 and 2010 Standards. Throughout this litigation, Defendants have emphasized the importance of the “in-store experience” for the Hollister brand. Defendants have indicated that the unique Hollister store design -- including its raised porches, which are covered by a roof, feature a wooden floor, and include furniture and “props” such as lamps, plants, and oars -- is at the core of creating this experience. Because the raised porches including these special features and attributes are used as both public retail spaces and public entrances, they must meet the requirements under the ADA for both uses.
Id. [ECF No. 181] at 3.
Defendant argues that the Raised Porch Entrances “are designed to provide a
visual experience to shoppers, and plaintiffs have not been deprived of that experience.”
[ECF No. 179] at 7-8 (emphasis in original). This argument overlooks the reality that
shoppers without mobility impairments may step up onto the Raised Porch Entrance,
examine the displayed merchandise from all angles, sit in the chairs, and generally have
the intended experience of entering a California beach shack by walking up onto the
porch. Because these uses of the space are denied to shoppers who use wheelchairs,
the Raised Porch Entrances are in violation of section 206.2.4.8
* * *

8

The Raised Porch Entrances also violate the analogous provision of the

1991 Standards. See § 4.1.3(1) (requiring that an accessible route “shall connect

accessible building or facility entrances with all accessible spaces and elements within

the building or facility.”); see also Statement of Interest [ECF No. 181] at 11 n.9.

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For the reasons set forth above, the Raised Porch Entrances at those Hollister stores that contain them violate both the 1991 and 2010 Standards. Because all of the Hollister stores at issue were built after January 26, 1993, these stores thus violate the new construction provisions of Title III of the ADA, 42 U.S.C. § 12183(a)(1).
D. Injunctive Relief The only remedy for violation of Title III of the ADA is injunctive; the statute has no damages remedy for private plaintiffs. See 42 U.S.C. § 12188(a). Furthermore, because the Hollister stores with Raised Porch Entrances are in violation of section 12183(a), an injunction is mandatory to remedy the violation, which injunction “shall include an order to alter [the] facilities” to bring them into compliance. Id. § 12188(a)(2); see also, e.g., Moreno v. La Curacao, 463 Fed. Appx. 669, 670 (9th Cir. 2011) (“The district court having determined that certain barriers at Defendant’s establishment violated the ADA and that removal of these barriers was ‘readily achievable,’ see 42 U.S.C. § 12182(b)(2)(A)(iv),[9] Plaintiff was entitled to injunctive relief . . .”). Plaintiffs are not required to show irreparable harm to obtain an injunction for violation of section 12183(a), nor is a balance-of-harms test appropriate once such a violation is shown. “‘[W]hen the evidence shows that the defendants are engaged in, or about to be engaged in, the act or practices prohibited by a statute which provides for injunctive relief to prevent such violations, irreparable harm to the plaintiffs need not be shown.’” Star Fuel Marts, LLC v. Sam’s East, Inc., 362 F.3d 639, 651 (10th Cir. 2004)

9

Section 12188(a)(2) mandates injunctive relief for violations of both

sections 12183(a) (at issue here) and 12182(b)(2)(A)(iv) (at issue in Moreno).

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(internal citations omitted). “‘[I]t is not the role of the courts to balance the equities between the parties [where] Congress has already balanced the equities and has determined that, as a matter of public policy, an injunction should issue where the defendant is engaged in . . . any activity which the statute prohibits.’” Id. at 652 (citing Burlington N. R.R. Co. v. Bair, 957 F.2d 599, 601 (8th Cir. 1992)); see also United States v. Morris, 2011 WL 588060, at *5 (D. Colo. Jan. 14, 2011) (“[B]ecause [the statute] sets forth the criteria necessary for injunctive relief, the traditional equitable factors, including a showing of irreparable harm, need not be proved,” citing Atchison, Topeka & Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 259 (10th Cir. 1981)).
At the January 24, 2013 hearing, I noted that while I concluded that Plaintiff’s motion for summary judgment and request for entry of an injunction should be granted, the actual injunction will be issued in a future order of the Court. Thus, for reasons stated on the record at the January 24, 2013 hearing, this Order will not impose the actual injunction as “I need for the parties to meet and confer, give me their input and if necessary [I] may need a hearing if there [are] disputes.” (Unofficial Bridge Tr. at 11:25:18-11:26:36). IV. CONCLUSION
Based on the foregoing, it is ORDERED that Plaintiffs’ Motion for Summary Judgment, Entry of Injunction, and Entry of Judgment, filed April 27, 2012 [ECF No. 162] is GRANTED. Defendants’
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Motion for Summary Judgment or, In the Alternative, To Vacate August 31, 2011 Order [ECF No. 164] is DENIED. It is
FURTHER ORDERED that the parties shall meet and confer before March 15, 2013, to attempt to craft an injunction/remedy that is mutually agreeable to both parties. If the parties can reach agreement on the contents of a proposed injunction, they shall jointly file the proposed injunction not later than April 19, 2013. If the parties are not able to reach agreement, Plaintiffs shall file a proposed injunction and Defendants shall have 15 days to respond.
Dated: March 7, 2013 BY THE COURT:
s/ Wiley Y. Daniel WILEY Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-02757-WYD-KMT
COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation, ANITA HANSEN, ROBERT SIROWITZ, JOSHUA STAPEN, ROBIN STEPHENS, and BENJAMIN HERNANDEZ,
Plaintiffs,
v.
ABERCROMBIE & FITCH CO., ABERCROMBIE & FITCH STORES, INC., and J.M. HOLLISTER LLC, d/b/a HOLLISTER CO.,
Defendants.
ORDER
I. INTRODUCTION
This matter comes before the Court on Pl aintiffs’ Motion for Partial Summary
Judgment, filed March 16, 2011, [ECF No. 87]. Defendants filed their Response in
Opposition on May 11, 2011, [ECF No. 93] and Plani tiffs filed their reply on May 27, 2011,
[ECF No. 96]. On May 31, 2011, a Statement of Interest regarding Plaintiffs’ motion was
filed by the United States, [ECF No. 97].On June 8, 2011, Defendants filed an Unopposed
Motion for Leave to Respond to the Statement of Interest [ECF No. 101]. Defendants’
motion will be granted and their responsive considered.
II. BACKGROUND
The factual background of this case was set forth in this Court’s Order denying

Defendants’ Motion to Dismiss for Lack of Standing, originally entered May 18, 2011. It will not be repeated here. Plaintiffs’ Motion for Partial Summary Judgment requests summary judgment on the issue of whether the entrances to Defendants’1 Hollister clothing stores located at the Park Meadows andOrchard Town Center malls in suburban Denver violate Title III of the Americans with Disabilities Act (“ADA”) 42 U.S.C. § 12181 et seq. III. ANALYSIS
A. Standard Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where "the pleadings, depos itions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the ... moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c);see Anderson v. Liberty Lobby, Inc,. 477 U.S. 242, 250 (1986);Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). “When applying this standard, the court must‘view the evidence and draw all reasonable inf erences therefrom in the light most favorable to the party opposing summary judgment.’” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (citation omitted). A ll doubts mus t be resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co,. 933 F.2d 891, 892 (10th Cir. 1991).
1Defendants agree that defendant J.M. Hollister LLC owns and operates the two stores at issue in this motion but deny that defendants Abercrombie & Fitch Co. or Abercrombie & Fitch Stores, Inc., own, lease or operate those stores. For purposes of this motion, it will be presumed that Defendants are correct.
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B. Undisputed Material Facts The parties agree on some of the materialfacts regarding this motion. The Hollister stores at issue were both built after the passage of the ADA. Although one store is in an enclosed, “indoor” mall (Park Meadows) and the other is in an “ outdoor mall” (Orchard Town Center), the design of thefront of the stores is the same, at least for purposes of this motion. Each store has a raised porch-like pla tform that is two steps above ground level. It is not accessible to people in wheelchairs. The platform is covered by a roof and contains a door leading into the store. Inside the door are two steps down into either the half of the store with goods for males or the other half with goods for females. On each side of the ‘porch structure, ’ are two doors at ground level. 2 The stores adj acent to the Hollister stores at both malls have ground level entrances. Consequently the steps at the Hollister stores are purely ornamental. The porch structure creates an aesthetic which is a valuable part of Defendant Hollister’s branding efforts. C. Arguments of the Parties and Nonparty Plaintiffs’ arguments start with the policy statements regarding the aims of the ADA and the timing for the requirements that new buildings be “readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12183(a)(1). Asmentioned, the parties agree that the Hollister stores were built after this ADA requirement went into effect. They also agree that no exceptions apply to these stores. There is no ‘feasability’ issue in this case.
2 For purposes of this motion, the parties assume that the side entrances are ‘accessible’ as defined by the ADA. To the Court, this contention appears questionable, considering some statements in the Third Amended Complaint, but the parties’ agreement will be respected for purposes of this motion.
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In particular, Plaintiffs allege that t hose stores violate the ADA regulation that requires that accessible entrances, wher e feasible, shall be the entrances used by the majority of people visiting orworking in the building. 28C.F.R. § 36.406 Appendix A- 1991 Standard for Accessible Design 4.1.3(8)(a)[hereinafter “Design Standard _._ “].3 Plaintiffs go on to note that the ADA encourages that fa cilities be provided in the “most integrated setting appropriate.” 42 U.S.C. § 12182(b)(1)( B). A dis cussion of the statutory aim of ending the segregation of handicapped individuasl and allowing them, whenever possible, to use the same facilities as individuals who aer not disabled is also discussed by Plaintiffs. It is their view that the two entrances that frame the porch-like structure of the central door are ‘separate’ and ‘different’ entrances that are an important part of what the statutory plan was attempting to preclude.
It is Defendants’ con tention that the Hollis ter stores do not violate the ADA, its regulations or standards. Their briefs containseveral arguments in support of this position. The first is that the words in the Desgin Standard quoted above including the words “where feasible,” are an aspirati onal standard that essentially can be ignored when adequate accessible entrances are provided. This argument must be rejected in light of the use of the mandatory “shall” in that sentence.
As an alternative, Defendant s argue that even if the th ree doors at the front of Hollister stores comprise three separate ent rances, the feasability standard set forth in Design Standard 4.1.3(8)(a), by its own terms, rfeers only to entrances used by the majority of people entering the facility. Only for those ‘majority use’ doors does the Design
3 The ADA Accessory Guidelines were revised in 2010 but the parties (and the Nonparty, United States) agree that the original regulations were what was in effect at the time these stores were built.
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Standard relied upon by Plaintiffs express that they should be accessible if feasible. Defendants argue that Plaintiffs have presented no evidence to show that the center door is the majority use door and itwould be improper for the Court to assume this ‘crucial’ fact. Furthermore, they contend thatas the center door involvesa ‘more arduous and less direct route,’ it would make no sense for the Cour t to assume the center door is used by a majority of customers.
Defendants rely on another subsection of the same Design Standard to argue that the doors at the Hollis ter stores meet the requirement that “[a]t least 50% of all public entrances . . . must be accessible.” Design Standard 4.1.3(8)(a)(i).
Defendants’ main argument appears to be that all three doors at the Hollister stores are part of the same ‘entrance.’ In support, Defendants point out that the three doors are on the same side of the building and constitute a continuous series along the wall. They all lead from the gener al mall area to inside the store. Defendant s note that the ADA Design Standards define entrance as possibly including more than a single door. Design Standard 3.5.4 They go on to note another Design Standard provides that “[a]t each accessible entrance to a building or facility, at least one door shall comply with 4.13.” Design Standard 4.1.3 (7)(a). Since both side doors must be considered accessible in light of the parties’ stipulation for this motion, the entrances to the two Hollister stores comply with both Design Standards 4.1.3( 8)(a)(I) and 4.1.3 (7)(a). In fact, not only 50%, but in
4 “Entrance. Any access point to a building or portion of a building or facility used for the purpose of entering. An entrance includes the approach walk, the vertical access leading to the entrance platform, the entrance platform itself, vestibules if provided, the entry door(s) or gate(s), and the hardware of the entry door(s) or gate(s).”
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excess of 66% of the front doors at the entrance to the stores are accessible.5 To strengthen their argument, and because the Design Standards do not include a
provision that deals exactly with the configuration at issue in this case, Defendants have searched the Design Standards for analogous sit uations. They point out that one subsection provides that an inaccessible revolving door and an accessible door ar e considered a single accessible entrance if theaccessible door is adjacent to the revolving door and allows the same use pattern. DesignStandard 4.13.2. As the regulations do not define ‘adjacent,’ Defendants cite dictionary definitions to demonstrate that adjacent generally means close but not necessary adjoining.
Plaintiffs disagree strongly with Defendants’single entrance argument. In particular they reject Defendants’ relianceon Design Standard 4.13.2. It isPlaintiffs’ position that just because that particular Design Standard permits turnstiles or revolving doors if there is an adjacent accessible door, does not mean that the Department of Justice (DOJ) is articulating a general standard that is encouraging non-accessible doors if an accessible door is close by. Plaintiffs dispute that anything about the allowance of turnstiles or revolving doors gives any indications that the DOJ has separate rules for single entrances that include multiple doors.
As previously mentioned, the United States has also f iled a Statement of Interest (“SOI”) with regard to this motion. It notes t hat as the U.S. Attorney General has the statutory authority to enforce the ADA, it is appropriate for the United States to file this Statement of Interest. It further notes that as the DOJ promulgated the regulations which
5 Although Defendants state that they have submitted affirmative evidence on the accessability of the side doors, in light of the parties’ agreement for this motion only, it would be inappropriate for the Court to make any findings on the issue either way.
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are applicable in this case, the At torney General has a clear interest in ensuring their proper implementation.
On a substantive basis, theUnited States takes the position that because the stores at issue were built after the ADA took effe ct, both the design and the construction of the entrances ‘violate the purpose and the letterof the ADA by unnecessarily relegating people who use wheelchairs to separate and objectively different entrances than those available for other people.” SOI at 4.
As something built after the effective date ofthe statute, newlyconstructed facilities must comply with Design Standard 4. 1.3(8) regarding feasibility. The implementing regulations require compliance unless it is “structurally impractical to do so.” 42 U.S.C.A. § 12183(a)(1). Regulations explain that the exception refers to “unique characteristics of terrain” that preclude application of some accessibility features. 28 C.F.R. §36.401(c)(1). As noted on page 3, Defendants acknowledge the exception does not apply to either of the stores at issue. Consequently, the United Sattes argues, Defendants must make the stores accessible unless it is not feasible for themto do so. Defendantshave conceded that they could easily make the applicable doors accessible.
Although the United States does not accept Defendants’ argument that the three doors comprise a single entrance, it argues that whether it is one entrance or three, that does not change the fact that the two ‘accessible’6 doors are qualitatively different from the raised center door. It points to the lack of roof, plants, pictures and other features that the center door has but the side doors do not have. It further notesthat Defendants’ argument
6 The United States also has its doubts as to whether the side doors are actually accessible.
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about a single entrance would be more convincing ifsome of the features like the roof and decorations were expanded to include all three doors.
Defendants’ response to the SOI strongly dsi putes the position of the United States (“DOJ”). They argue that theDOJ’s position as argued in theSOI contradicts the definition of “entrance” in Design Standard 3.5 and is ht erefore entitled to nodeference. Defendants believe that the definition of ‘entrance,’ quoted in footnote three of this Order, “expressly states that an entrance may have more than one elevation.”7 Resp. to SOI at 3.
Defendants’ response goes on to make insuppotrable statements indicating that both the Plaintiffs and the DOJ unequivocally agree that the side doors are “fully accessible.”8 It then reiterates its position that as two of the three doors outside the Hollister stores at issue are accessible, that more than complies with the requirements in Design Standards 4.1.3(7)(a), 4.1.3(8)(a)(i), 4.1.3(8)(a)(ii), and 4.1.3(8)(a).
Defendants also argue t hat the DOJ’s indication that the three doors might be considered a single entrance if ht e design elements were more smi ilar to each other, shows the weakness of it s argument that the definition of entr ance allows only one level of elevation at all doors in an entrance. They further point out that the Design Standards do not suggest in any way that store decorati ons should affect the determination whether
7 The United States agrees that an entrance may include more than a single door but it takes the position that because the doors at Defendants’ stores are on different elevations, the definition in 3.5 precludes them from being considered a single entrance. As noted though, the United States couches its ultimate opinion as valid whether the doors are considered a single or three separate entrances.
8 “Plaintiffs do not dispute that the other two front entry doors at each store are fully accessible” and “The United States does not dispute that two of the three adjacent entry doors at the front of each of the stores at issue are fully accessible and comply with all ADA Standards.” Resp. to SOI at 2.
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multiple doors constitute one entrance or several. Defendants’ next argument is that it is essentially illogical to assume that they have
created ‘second class, segregated side entranc es’ that would discourage shoppers who use wheelchairs. Resp. to SOI at5. Like all retailers, they say, they strive to increase the number of customers, not the contrary. They reiterate that the raised porch is part of a brand design to convey a certain ambiance and appearance that makes the store inviting as a whole.9 In this vein, they continue that t he “fully compliant” s ide doors “permit the same pattern of use as the raised entry doorand equal access to all merchandise.” Resp. to SOI at 5.
The final point in Defendants’ response to the SOI is that the reliance of Plaintiffs and the DOJ on Design Standard 4.1.3(8)(a) cannot succeed because whether the porch door is the ‘entrance used by the majority ofpersons entering the store’ is a genuine issue of material fact.
D. Application of Law to Facts Defendants use a variety of arguments to attempt to make the pointthat their center door which, at the very least, includes a porch and roof and access to the male or female side of the store, is not preferable to the side doors which, even if they are assumed to be accessible, lead to either the male- or fe male-oriented side of the store and therefore necessitate additional travel through a pos sibly crowded store if one needs to reach the
9Defendants cite a statement in the declaration of their Senior Director of Store Planning, attached to their response to the motion, that “No merchandise is sold or presented on the porch-like structure.” Hill Declaration at ¶8. This is not entirely true, as shown in the photograph in Plaintiffs motion and the photographs of the Park Meadows store, Ex. 1, included with the Declaration of Streckewald attached to the motion.
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side devoted to the other gender. To say that the issue of which door is used by a majority of customers is a genuine
issue of fact ignores the obvious. Looking at the photographsattached to Plaintiffs’ motion, it was not even clear that there are doors on either side of theporch. This was particularly true when the ‘shutter’ portion of the door was closed, although it seems doubtful whether the electronic door opener would work in those circumstances anyway. And while I tend to agree that the door opener would be readily visible to someone in front of the side doors, for anyone who was drawn tothe decorated entrance, the door button would appear small and far away.
Defendants argue that by a v ariety of ot her measures, their present design is adequate. They note that it does allow entr ance to people using wheelchairs if those people find the side doors and the doors are actually accessible; i.e. they are not locked, the electronic opener works and the path into the store is not blocked by tables or merchandise. However, it is not a prefearble entrance by any means because there do not appear to be any signs outside the store explaining which side has goods for males or for females. While it is possible that a wheeclhair-bound customer might be able to make that determination by looking through the glass in the doosr , it is just as likely that close to 50% of the side door entrants would need to make their way through the store to the other side. Obviously this is easier said than done for i ndividuals in wheelchairs. Clearly the side doors do not “permit the same pattern of use as the raised entry door and equal access to all merchandise” as argued by Defendants. Resp. to SOI at 5.
Defendant has strongly objected to the DOJ’s characterization of their treatment of customers who must use their side doors as second class because they cannot use the
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main door. By citing one of the many small subsections with which they have complied,
Defendants contend “[t]he Standards thus rec ognize that accessible and inaccessible
entrances may be ‘different or separate’ aslong as the other standards are met.” Resp. to
SOI at 6.
Once again Defendants are missing the bi g picture. Compliance with numerous
precise design standards does not protect t hem from violating the broad statutory
requirements.
It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, orother arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to ot her individuals, unless such action is necessary to provide t he individual or class of individuals with a good, service, facility, privilege, advantage, or accommodatoi n, or other opportuntiy that is as effective as that provided to others. 42 U.S.C.A. §12182(b)(1)(A)(iii) (emphasis added).
It is precisely this sort of language, as we ll as similar provisions such as “Goods,
services, facilities, privileges, advantages, and accom modations shall be afforded to an
individual with a disability in the most integrated setting appropriate to the needs of the
individual” that provide support for the general position that the ADA seeks to eliminate
unequal access for peop le with disabilities. 42 U.S.C.A. §12182(b)(1)(B) (emphasis
added).
It appears that Defendants would prefer to take the micro view that allows them to
comply with the details in the regulations without taking the aims of the ADA to heart and
fulfilling its overarching aims. This is where Plaintiffs’ seminal provision comes in: “Where
feasible, accessible entrances shall be the ent rances used by the majority of the people
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visiting or working in the building.” Design Standard 4.1.3(8)(a). Unlike the specific pro-

visions with which Defendants apparently do not have trouble complying, this one is more

general and is likely meant furtheremphasize that one aim of ht e ADA is that new buildings

be “readily accessible t o and usable by indi viduals with disabilities.” 42 U.S.C. §

12183(a)(1). Defendants have unnecessarily created a design for their brand that excludes

people using wheelchairs from full enjoyment ofthe aesthetic for that brand. The steps to

the center entrance are a legally unacceptable piece of that branding and violate Title III

of the ADA.

IV. CONCLUSION

Based upon the foregoing, it is

ORDERED that Defendants’ Unopposed Motion for Leave to Respond to the

Statement of Interest [ECF No. 101] is GRANTED and their responsive brief is accepted

for filing.

It is, further

ORDERED that Plaintiffs’ Motion for Partial Summary Judgment, filed March 16,

2011 [ECF No. 87], is GRANTED. Therefore the center front entrances at the H ollister

stores at Park Meadows mall and Orchard To wn Center mall violate Tit le III of the

Americans with Disabilities Act.

Dated: August 31, 2011

BY THE COURT:

s/ Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation; ANITA HANSEN; ROBERT SIPOWITZ; JOSHUA STAPEN; and ROBIN STEPHENS,
Plaintiffs, v. ABERCROMBIE & FITCH CO.; ABERCROMBIE & FITCH STORES, INC.; and J.M HOLLISTER LLC, d/b/a HOLLISTER CO.,
Defendants.
PERMANENT INJUNCTION AND ADMINISTRATIVE CLOSURE OF CASE
On March 7, 2013, this Court granted Plaintiffs' Motion for Summary Judgment, Entry of Injunction, and Entry of Judgment and denied Defendants' Motion for Summary Judgment or, in the Alternative, to Vacate August 31, 2011 Order [ECF No. 200]. Plaintiffs' operative Fifth Amended and Class Action Complaint asserts a single class-action claim for injunctive relief under Title III of the Americans with Disabilities Act ("ADA"). 42 U.S.C. § 12181 et seq. For the reasons set forth in that Order and pursuant to 42 U.S.C. § 12188(a)(2) and Fed. R. Civ. P. 65(d), this Court enjoins Defendants as follows: I. REASONS FOR ISSUANCE OF PERMANENT INJUNCTION:
A. Defendants own and operate Hollister stores throughout the United

States. B. Hollister stores are "public accommodations" as that term is used in Title
III of the Americans with Disabilities Act. 42 U.S.C. § 12181(7)(E). C. All Hollister stores were built after January 26, 1993. D. Many Hollister stores in the United States have raised porches with steps
at their center front entrances ("Elevated Entrances"). E. The Elevated Entrances violate Title III of the ADA, 42 U.S.C. §§ 12182(a)
& 12183(a)(1). F. Plaintiffs Anita Hansen and Julie Farrar are individuals with disabilities
who use wheelchairs who have shown that they have suffered a real and concrete injury-in-fact and have suffered and will suffer such injury in the future if the Elevated Entrances are not removed.
G. Plaintiffs Hansen and Farrar are representatives of the following class certified by this Court:
all people with disabilities who use wheelchairs for mobility who, during the two years prior to the filing of the Complaint in this case, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. Store in the United States on the basis of disability because of the presence of an Elevated Entrance. ECF No. 161 at 2. H. In light of the fact that this Court has held that the Elevated Entrances are in violation of section 12183(a)(1) of Title III of the ADA, section 12188(a)(2) mandates an injunction remedying these violations. An injunction is necessary to ensure that
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public entrances to Hollister stores are readily accessible to and usable by Plaintiffs and class members, § 12183(a)(1), and to ensure Plaintiffs and the class members have "full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations" provided at Hollister stores, § 12182(a). II. TERMS OF INJUNCTION
A. "Readily accessible to and usable by" means in compliance with "standards set forth or incorporated by reference in regulations issued under" Title III of the ADA. 42 U.S.C. § 12183(a)(1), including the 2010 Standards as defined in 28 C.F.R. § 36.104.
B. Defendants shall ensure that all Elevated Entrances used by the public are readily accessible to and usable by individuals who use wheelchairs in compliance with Title III of the ADA and its implementing regulations on or before January 1, 2017, and that individuals in wheelchairs are not required to use a separate entrance.
C. Defendants shall ensure, at Hollister Stores that are designed or constructed now or in the future, that 60% of the public entrances, including but not limited to the entrance used by the majority of the people entering the Hollister Store and any public entrance used for any purpose in addition to entry and egress, shall be accessible to persons who use wheelchairs or scooters. III. DETAILED ACTS REQUIRED
A. Defendants shall ensure that 60% of the public entrances to any Hollister Store, including but not limited to the entrance used by the majority of the people entering the Hollister Store and any public entrance and used for any purpose in
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addition to entry and egress, fully complies with the ADA. Specifically, Defendants shall ensure that any such point of entry or egress that presently contains an Elevated Entrance will be
1. modified to be level with the surrounding floor space; 2. modified to be ramped in compliance with Section 405 of the 2010 Standards; or 3. closed off from any public access. Should Defendants elect the last option, they will ensure that the area served by the Elevated Entrances is not used for customer entry or egress, and all customers will instead use the existing level side entrances. B. Defendants shall bring Hollister stores with Elevated Entrances into compliance with Paragraph III.A at the rate of not less than 77 stores per year. The start date of this Injunction shall be January 1, 2014 and the deadline for full compliance shall be January 1, 2017, except that Defendants not later than December 1, 2015, may request an end date extension for good cause shown not to exceed six months. Prior to any such request for extension, Defendants shall meet and confer with Plaintiffs. C. Hollister stores designed and constructed on or after the entry of this Injunction shall comply with Paragraphs II and III hereof. D. Every six months starting on January 1, 2014, Defendants shall file a report with the Court identifying the Hollister stores with Elevated Entrances that it has brought into compliance during the previous six months. Such report shall include photographs of each store identified in the report sufficient to demonstrate compliance
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with this Injunction. IV. Finally, it is ordered that this case shall be administratively closed and may be reopened upon request of either party for good cause shown pursuant to D.C.COLO.LCivR 41.2.
SO ORDERED Dated: August 20, 2013
BY THE COURT: /s/ Wiley Y. Daniel WILEY Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE
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 Case 1:09-cv-02757-WYD-KMT Document 214 Filed 09/05/13 USDC Colorado Page 1 of 6
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation; ANITA HANSEN; ROBERT SIPOWITZ; JOSHUA STAPEN; and ROBIN STEPHENS,
Plaintiffs, v. ABERCROMBIE & FITCH CO.; ABERCROMBIE & FITCH STORES, INC.; and J.M HOLLISTER LLC, d/b/a HOLLISTER CO.,
Defendants.
FINAL JUDGMENT
Pursuant to and in accordance with Fed. R. Civ. P. 58(a) and the Permanent Injunction and Administrative Closure of Case, filed on August 20, 2013, by the Honorable Wiley Y. Daniel, Senior United States District Judge, and incorporated herein by reference as if fully set forth, it is
ORDERED that judgment is hereby entered in favor of Plaintiffs, Colorado Cross-Disability Coalition, a Colorado non-profit corporation; Anita Hansen; Robert Sipowitz; Joshua Stapen; and Robin Stephens, and against Defendants, Abercrombie & Fitch Co.; Abercrombie & Fitch Stores, Inc.; and J.M Hollister LLC, d/b/a Hollister Co., on Plaintiffs’ Motion for Summary Judgement as follows:
Plaintiffs' operative Fifth Amended and Class Action Complaint asserts a single
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Case 1:09-cv-02757-WYD-KMT Document 214 Filed 09/05/13 USDC Colorado Page 2 of 6
class-action claim for injunctive relief under Title III of the Americans with Disabilities Act ("ADA"). 42 U.S.C. § 12181 et seq. For the reasons set forth in that Order and pursuant to 42 U.S.C. § 12188(a)(2) and Fed. R. Civ. P. 65(d), this Court enjoins Defendants as follows:
I. REASONS FOR ISSUANCE OF PERMANENT INJUNCTION: A. Defendants own and operate Hollister stores throughout the United
States. B. Hollister stores are "public accommodations" as that term is used in
Title III of the Americans with Disabilities Act. 42 U.S.C. § 12181(7)(E). C. All Hollister stores were built after January 26, 1993. D. Many Hollister stores in the United States have raised porches with
steps at their center front entrances ("Elevated Entrances"). E. The Elevated Entrances violate Title III of the ADA, 42 U.S.C. §§
12182(a) & 12183(a)(1). F. Plaintiffs Anita Hansen and Julie Farrar are individuals with disabilities
who use wheelchairs who have shown that they have suffered a real and concrete injury-in-fact and have suffered and will suffer such injury in the future if the Elevated Entrances are not removed.
G. Plaintiffs Hansen and Farrar are representatives of the following class certified by this Court:
all people with disabilities who use wheelchairs for mobility who, during the two years prior to the filing of the Complaint in this case, were denied the full and
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Case 1:09-cv-02757-WYD-KMT Document 214 Filed 09/05/13 USDC Colorado Page 3 of 6
equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. Store in the United States on the basis of disability because of the presence of an Elevated Entrance.
ECF No. 161 at 2. H. In light of the fact that this Court has held that the Elevated Entrances are in violation of section 12183(a)(1) of Title III of the ADA, section 12188(a)(2) mandates an injunction remedying these violations. An injunction is necessary to ensure that public entrances to Hollister stores are readily accessible to and usable by Plaintiffs and class members, § 12183(a)(1), and to ensure Plaintiffs and the class members have "full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations" provided at Hollister stores, § 12182(a). II. TERMS OF INJUNCTION A. "Readily accessible to and usable by" means in compliance with "standards set forth or incorporated by reference in regulations issued under" Title III of the ADA. 42 U.S.C. § 12183(a)(1), including the 2010 Standards as defined in 28 C.F.R. § 36.104. B. Defendants shall ensure that all Elevated Entrances used by the public are readily accessible to and usable by individuals who use wheelchairs in compliance with Title III of the ADA and its implementing regulations on or before January 1, 2017, and that individuals in wheelchairs are not required to use a separate entrance. C. Defendants shall ensure, at Hollister Stores that are designed or
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Case 1:09-cv-02757-WYD-KMT Document 214 Filed 09/05/13 USDC Colorado Page 4 of 6
constructed now or in the future, that 60% of the public entrances, including but not limited to the entrance used by the majority of the people entering the Hollister Store and any public entrance used for any purpose in addition to entry and egress, shall be accessible to persons who use wheelchairs or scooters. III. DETAILED ACTS REQUIRED
A. Defendants shall ensure that 60% of the public entrances to any Hollister Store, including but not limited to the entrance used by the majority of the people entering the Hollister Store and any public entrance and used for any purpose in addition to entry and egress, fully complies with the ADA. Specifically, Defendants shall ensure that any such point of entry or egress that presently contains an Elevated Entrance will be
1. modified to be level with the surrounding floor space; 2. modified to be ramped in compliance with Section 405 of the 2010 Standards; or 3. closed off from any public access. Should Defendants elect the last option, they will ensure that the area served by the Elevated Entrances is not used for customer entry or egress, and all customers will instead use the existing level side entrances. B. Defendants shall bring Hollister stores with Elevated Entrances into compliance with Paragraph III.A at the rate of not less than 77 stores per year. The start date of this Injunction shall be January 1, 2014 and the deadline for full
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Case 1:09-cv-02757-WYD-KMT Document 214 Filed 09/05/13 USDC Colorado Page 5 of 6
compliance shall be January 1, 2017, except that Defendants not later than December 1, 2015, may request an end date extension for good cause shown not to exceed six months. Prior to any such request for extension, Defendants shall meet and confer with Plaintiffs.
C. Hollister stores designed and constructed on or after the entry of this Injunction shall comply with Paragraphs II and III hereof.
D. Every six months starting on January 1, 2014, Defendants shall file a report with the Court identifying the Hollister stores with Elevated Entrances that it has brought into compliance during the previous six months. Such report shall include photographs of each store identified in the report sufficient to demonstrate compliance with this Injunction. IV. Finally, it is ordered that this case shall be administratively closed and may be reopened upon request of either party for good cause shown pursuant to D.C.COLO.LCivR 41.2.
IT IS FURTHER ORDERED that Plaintiffs shall have their costs by the filing of a Bill of Costs with the Clerk of this Court, in accordance with the procedures set forth in Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1, within fourteen (14) days of entry of judgment.
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Case 1:09-cv-02757-WYD-KMT Document 214 Filed 09/05/13 USDC Colorado Page 6 of 6 DATED at Denver, Colorado this 5th day of September, 2013. FOR THE COURT: JEFFREY P. COLWELL, CLERK s/ Edward P. Butler Edward P. Butler, Deputy Clerk
APPROVED AS TO FORM: /s/ Wiley Y. Daniel WILEY Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Wiley Y. Daniel
Civil Action No. 09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation; ANITA HANSEN; and JULIE FARRAR, on behalf of themselves and all others similarly situated,
Plaintiffs, v. ABERCROMBIE & FITCH CO., et al.,
Defendants.
ORDER GRANTING PLAINTIFFS’ UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT
AND AWARDING ATTORNEYS’ FEES
This matter is before me on Plaintiffs’ Unopposed Motion for Final Approval of Class Action Settlement Agreement and Award of Attorneys’ Fees. For the reasons stated during the hearing on September 24, 2015 and set forth below, the motion is GRANTED. I. BACKGROUND
Plaintiffs -- individuals who use wheelchairs for mobility and the Colorado Cross-Disability Coalition (“CCDC”) -- filed suit against the Defendants, the owners and operators of Hollister stores, alleging violations of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq.

During times relevant to this litigation, Defendants owned and/or operated approximately 500 Hollister stores nationwide. Approximately half of those stores had an entrance at the front of the store that had two steps and a platform. Members of Plaintiff CCDC (a statewide disability advocacy organization), including Anita Hansen and Julie Farrar, alleged that this entrance violated the ADA for a number of reasons. Before filing suit, however, the parties spent many months attempting to resolve the differences. These discussions were amicable but ultimately unsuccessful, and Plaintiffs filed suit in December 2009.
The original lawsuit raised essentially three issues: (1) plaintiffs claimed that the entrances with steps violated the ADA; (2) service counters inside the stores did not have a lower portion that was accessible to patrons who use wheelchairs, which Plaintiffs also alleged violated the ADA; and (3) plaintiffs claimed that interior circulation routes throughout the store prevented access to much of the merchandise for customers who use wheelchairs. Before the lawsuit was filed, and in the early stages of the lawsuit, Defendants installed additional side entrances in their stores nationwide that did not have steps, lowered portions of their service counters, and devised a plan for increasing interior circulation space for customers who use wheelchairs. Defendants represent that they are using this plan in all the stores.
Numerous motions were filed and opposed in this case, including, without limitation, the following:
 Defendants’ Motion to Dismiss, ECF 35;  Plaintiffs’ Motions to Amend Complaint, ECF 18, 24, 70, 123;
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 Defendants’ Renewed Motion to Dismiss, ECF 76;  Plaintiffs’ Motion for Partial Summary Judgment, ECF 87;  Plaintiffs’ Motion to Certify Class, ECF 125;  Plaintiffs’ Motion for Summary Judgment, Final Judgment and for
Issuance of Injunction, ECF 162;  Defendants’ Motion for Summary Judgment or, in the Alternative, to
Vacate August 31, 2011 Order, ECF 164;  Plaintiffs’ Proposed Permanent Injunction, ECF 203;  Plaintiffs’ Motion for Attorneys’ Fees and Costs, ECF 231. In addition to these motions, several discovery motions were filed as well. See, e.g., ECF 55 & 126. On March 16, 2011, Plaintiffs amended their complaint to narrow the case to the single issue of whether the raised porch entrances at Hollister stores violated the ADA. ECF 87. The parties ultimately filed cross-motions for summary judgment. See ECF 164. Twice, the United States Department of Justice submitted Statements of Interest in support of Plaintiffs’ positions on issues in the case. ECF 97 & 181. The Court granted Plaintiffs’ Motion for Class Certification, ECF 161, ruled against Defendants on their Motion to Dismiss, ECF 98, granted Plaintiffs’ Motion for Partial Summary Judgment, ECF 109, and granted Plaintiffs’ request for a nationwide permanent injunction, ECF 211. The Court also granted Plaintiffs’ Motion for Attorneys’ Fees and Costs. ECF 245.
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Defendants appealed to the Tenth Circuit Court of Appeals, Case No. 13-1377. In its ruling, the majority of the panel held in Plaintiffs’ favor on questions relating to class certification and standing but ultimately held that Hollister’s elevated entrances did not violate the ADA. Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., 765 F.3d 1205 (10th Cir. 2014).
Since that time, Defendants have been making changes to the storefronts of their Hollister stores as explained below. II. SUMMARY OF THE SETTLEMENT
The Settlement Agreement addresses and provides relief with respect to Hollister stores with elevated entrances and the claims in this lawsuit in the following ways, subject to Court approval:
 As of February 2, 2014, Defendants represent they operated approximately 218 Hollister stores nationwide with elevated entrances. Settlement Agreement ¶ 2.1.
 Defendants represent that prior to the effective date of the Settlement Agreement, they converted 31 Hollister stores that had elevated entrances to a new design without an elevated entrance and closed 14 Hollister stores that had elevated entrances. Id. ¶ 4.1. Defendants converted the Park Meadows Mall store in Colorado, which had an elevated entrance, during the time of this litigation. Decl. of Amy F. Robertson, ECF 254-1 (“Robertson Decl.”), ¶ 12(b).
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 Going forward, Defendants will either close to the public or convert to a new entrance design 47 additional Hollister stores that currently have elevated entrances. Settlement Agreement ¶ 4.2. Thus, out of the original approximately 250 stores with elevated entrances, following full implementation of the proposed settlement, only at most 126 stores will have such entrances. Id.
 Defendants will not design and construct elevated entrances and will ensure all entrances to Hollister stores after the settlement are designed and constructed without elevated entrances. Id. ¶ 4.3.
 Defendants will provide Plaintiffs’ counsel with the store name and location of each Hollister post-settlement store in writing. Id. ¶ 4.4.
In the Settlement Agreement, the parties agreed to seek this Court’s approval for settlement on a class action basis. On April 20, 2012, this Court certified the following class:
All people with disabilities who use wheelchairs for mobility who, during the two years prior to the filing of the Complaint in this case, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. Store in the United States on the basis of disability because of the presence of an Elevated Entrance (“Class Parties”). ECF 161 at 2, 13-14. Finally, with respect to attorneys’ fees and costs, Defendants have agreed to pay $190,000.00 to resolve the claims of the class for attorneys’ fees and costs. Id. ¶ 4.5.
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III. SETTLEMENT AGREEMENT A. The Notice Provided Satisfied Rule 23(e) and Due Process. Plaintiffs provided notice as ordered by the Court. Specifically, Plaintiffs mailed
and emailed the notice to a number of disability rights organizations around the country, requesting that they post it widely. Plaintiff CCDC posted the notice on its website and distributed it through its email alert system. See generally Decl. of Lauren Haefliger, ECF 260-1. For the reasons set forth in Plaintiffs’ Motion for Preliminary Approval, ECF 254 at 13-15, and approved by this Court, ECF 259, and based on the facts set forth in Ms. Haefliger’s declaration, the Court holds that the notice provided satisfied Federal Rule of Civil Procedure 23(e) and Due Process.
B. The Settlement Agreement is Fair, Reasonable, and Adequate. “The settlement of a class action may be approved where the Court finds that the settlement is fair, reasonable, and adequate.” Tuten v. United Airlines, Inc., 41 F. Supp. 3d 1003, 1007 (D. Colo. May 19, 2014) (citing Rutter & Wilbanks Corp. v. Shell Oil, 314 F.3d 1180, 1186 (10th Cir. 2002)). “The Court reviews a proposed class action settlement by considering four factors: (1) whether the proposed settlement was fairly and honestly negotiated; (2) whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt; (3) whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation; and (4) the judgment of the parties that the settlement is fair and reasonable.” Id. (citing Gottlieb v. Wiles, 11 F.3d 1004, 1014 (10th Cir. 1993)).
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i. The Settlement Agreement Was Fairly and Honestly Negotiated. The settlement negotiations have been fair, honest, and at arm’s length. There are numerous examples of this. First, the parties have “vigorously advocated their respective positions throughout the pendency of the case.” Lucas v. Kmart Corp., 234 F.R.D. 688, 693 (D. Colo. 2006) (quoting Wilkerson v. Martin Marietta Corp., 171 F.R.D. 273, 284 (D. Colo. 1997)). This case has been litigated over the course of over six years, during which time the parties engaged in extensive motions practice and an appeal. In addition, the settlement is the result of a long process of arm’s-length negotiations. As Defendants have represented, initial negotiations led to significant changes, albeit without a written agreement. See, e.g., ECF 167 at ii-iii. The parties corresponded and met from time to time throughout the litigation in an attempt to achieve a resolution. Specifically, the parties met in person on two occasions in 2013, the second with the assistance of Judge Steve Briggs of the Judicial Arbiter Group. They exchanged numerous emails and phone calls but were unable to resolve the litigation before the appeal. Following the appeal and denial of rehearing, the parties began a process of telephone meetings and exchanges of drafts that led to the current proposed settlement agreement. Decl. of Amy F. Robertson, ECF 254-1, ¶¶ 15-17. Because the settlement resulted from arm’s-length negotiations between experienced counsel after both parties conducted discovery, after a significant number of motions were brought and contested, and after extensive prior settlement discussions failed, the settlement should be presumed to be fair and adequate. Lucas, 234 F.R.D. at
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693 (citing Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005) (holding that a “‘presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.’” (quoting Manual for Complex Litigation (Third) § 30.42 (1995))). The settlement in this case eliminates many of the alleged barriers to access about which Plaintiffs complained.
ii. Serious Questions of Law and Fact Exist, Placing the Ultimate Outcome of the Litigation in Doubt.
Although it is not appropriate at this stage of the litigation to evaluate the merits, Wilkerson, 171 F.R.D. at 284 (citing Carson v. American Brands, Inc., 450 U.S. 79, 88 n. 14 (1981), Defendants prevailed on the core issue in this case on appeal to the Tenth Circuit. Although Plaintiffs could have sought certiorari or litigated further regarding the accessibility of the side entrances, they determined that it was in the best interests of the class to secure the above-described settlement terms. The changes that Defendants have made in response to and throughout the course of the litigation and that they will make pursuant to the settlement agreement are substantial, especially in light of the legal status of case.
iii. The Value of an Immediate Recovery Outweighs the Mere Possibility of Future Relief After Protracted and Expensive Litigation.
Following settlement, over half of the Hollister stores that, at the beginning of the litigation, had steps will either be closed or will have the steps removed. This will happen before the end of 2016. Had the parties continued litigating to the United States Supreme Court, or tried the case before this Court on the question of accessibility of the
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side entrances, it could have taken significantly longer before the case would be resolved. The stores to be remedied are distributed evenly around the country, and thus do not unduly prejudice one part of the class over another. The proposed settlement represents a reasonable compromise between Defendants’ position that the Tenth Circuit’s decision endorsed Hollister’s entrance configuration, and Plaintiffs’ position that a trial would demonstrate a pattern and practice of barriers making the side entrances non-compliant. Robertson Decl. ¶ 20.
iv. In The Judgment of the Parties, the Settlement Is Fair and Reasonable.
“Counsels’ judgment as to the fairness of the agreement is entitled to considerable weight.” Lucas, 234 F.R.D. at 695 (quoting Marcus v. Kansas Dep’t. of Revenue, 209 F.Supp.2d 1179, 1183 (D. Kan. 2002)). Here, the parties’ counsel -- among whom are attorneys with substantial experience in complex litigation and disability class actions -recommend this settlement as fair, adequate and reasonable. See Robertson Decl. ¶¶ 3, 20.
* * * For the reasons set forth above, the Court finds that the settlement satisfies the four-part test in Rutter & Wilbanks Corp. v. Shell Oil, 314 F.3d at 1186, and thus APPROVES the agreement. IV. ATTORNEYS’ FEES The Settlement Agreement provides that Defendants will pay $190,000 in attorneys’ fees and costs to counsel for the class. This Court previously has previously reviewed Plaintiffs’ fee petition prior to the appeal. At that time, the Court ruled that
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Plaintiffs’ work merited an award of attorneys’ fees and costs, approved Plaintiffs’ counsel’s rates, and awarded $370,352.57 for fees and $20,342.51 in costs. See generally ECF 245. Although, on appeal, the Tenth Circuit reversed this Court on the merits, Plaintiffs now have reached a settlement with Defendants and achieved substantial results for the class. For example, Defendants represent that, as a result of this lawsuit, they have taken or will take the following actions:
 Closing or altering at least 92 Hollister stores to remove the steps and replace them with a level entrance;
 Lowering the height of primary sales counters;  Adding a second automatic push button on the side entrances;  Changing store procedures to attempt to ensure doors are unlocked during
business hours and not blocked by merchandise;  Re-merchandising to attempt to ensure a 36-inch path of travel (with occasional
32-inch pinch points for distances of less than 24 inches). See generally Ex. 1; ECF 167.
Accordingly, Plaintiffs’ request for $190,000 in fees and costs -- slightly more than half the amount approved by the Court prior to the appeal -- is reasonable and appropriate. For the reasons set forth above and in ECF 245, this Court AWARDS Plaintiffs’ counsel the amount of $190,000 for their reasonable fees and costs. SO ORDERED
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Dated: September 29, 2015

BY THE COURT:
/s/ Wiley Y. Daniel Wiley Y. Daniel Senior United States District Judge

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13-1377 Docket

General Docket
Tenth Circuit Court of Appeals
Court of Appeals Docket #: 13­1377 Nature of Suit: 3446 Americans w/Disab. Act ­ Other CO Cross­Disability Coalition, et al v. Abercrombie & Fitch, et al Appeal From: United States District Court for the District of Colorado ­ Denver Fee Status: Fee Paid

Case Type Information: 1) civil 2) private 3) ­

Originating Court Information: District: 1082­1 : 1:09­CV­02757­WYD­KMT Court Reporter: Tamara Hoffschildt, ­ Trial Judge: Wiley Y. Daniel, ­, U.S. District Judge Date Filed: 11/24/2009
Date NOA Filed: 09/09/2013

Date Rec'd COA: 09/10/2013

Prior Cases: None

Current Cases: None
Panel Assignment:

Not available

ANITA HANSEN Plaintiff ­ Appellee
https://ecf.ca10.uscourts.gov/n/beam/servlet/TransportRoom

Hillary Benham­Baker Direct: 415­373­5333 Email: hillary@cbbllp.com [NTC Retained] Campins Benham­Baker Firm: 415­373­5333 8 California Street, Suite 703 San Francisco, CA 94111
Julia Campins Direct: 415­373­5333 Email: julia@cbbllp.com [NTC Retained] Campins Benham­Baker Firm: 415­373­5333 8 California Street, Suite 703 San Francisco, CA 94111
Timothy Patrick Fox Direct: 303­595­9700 Email: tfox@creeclaw.org [NTC Retained] Fox & Robertson, P.C. Firm: 303­595­9700 104 Broadway Suite 400 Denver, CO 80203
Bill Lann Lee Direct: 510­839­6824 Email: blee@creeclaw.org [Retained] Lewis Feinberg Lee & Jackson Firm: 510/839­6824 476 9th Street Oakland, CA 94607
Andrew Christopher Montoya Direct: 303­839­1775

Docketed: 09/10/2013 Termed: 09/02/2014
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Email: amontoya@ccdconline.org [NTC Retained] Colorado Cross­Disability Coalition Legal Program Firm: 303­839­1775 1385 South Colorado Blvd., Suite 610­A Denver, CO 80222

Amy Farr Robertson Direct: 303­595­9700 Email: arobertson@creeclaw.org [NTC Retained] Fox & Robertson, P.C. Firm: 303­595­9700 104 Broadway Suite 400 Denver, CO 80203

Kevin W. Williams Direct: 720­336­3584 Email: kwilliams@ccdconline.org [NTC Retained] Colorado Cross­Disability Coalition Legal Program Firm: 303­839­1775 1385 South Colorado Blvd., Suite 610­A Denver, CO 80222

JULIE FARRAR, on behalf of themselves and all others similarly situated
Plaintiff ­ Appellee

Hillary Benham­Baker Direct: 415­373­5333 [NTC Retained] (see above)

Julia Campins Direct: 415­373­5333 [NTC Retained] (see above)

Timothy Patrick Fox Direct: 303­595­9700 [NTC Retained] (see above)

Bill Lann Lee Direct: 510­839­6824 [Retained] (see above)

Andrew Christopher Montoya Direct: 303­839­1775 [NTC Retained] (see above)

Amy Farr Robertson Direct: 303­595­9700 [NTC Retained] (see above)

Kevin W. Williams Direct: 720­336­3584 [NTC Retained] (see above)

COLORADO CROSS­DISABILITY COALITION, a Colorado non­ profit corporation
Plaintiff ­ Appellee

Hillary Benham­Baker Direct: 415­373­5333 [NTC Retained] (see above)

Julia Campins Direct: 415­373­5333 [NTC Retained] (see above)

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BENJAMIN HERNANDEZ Plaintiff
ROBERT SIROWITZ Plaintiff
JOSHUA STAPEN Plaintiff
ROBIN STEPHENS Plaintiff
v.

13-1377 Docket
Timothy Patrick Fox Direct: 303­595­9700 [NTC Retained] (see above)
Bill Lann Lee Direct: 510­839­6824 [Retained] (see above)
Andrew Christopher Montoya Direct: 303­839­1775 [NTC Retained] (see above)
Amy Farr Robertson Direct: 303­595­9700 [NTC Retained] (see above)
Kevin W. Williams Direct: 720­336­3584 [NTC Retained] (see above)
Andrew Christopher Montoya Direct: 303­839­1775 [NTC Retained] (see above)
Andrew Christopher Montoya Direct: 303­839­1775 [NTC Retained] (see above)
Andrew Christopher Montoya Direct: 303­839­1775 [NTC Retained] (see above)
Andrew Christopher Montoya Direct: 303­839­1775 [NTC Retained] (see above)

ABERCROMBIE & FITCH CO. Defendant ­ Appellant

Michael Jacob Ball Direct: 614­464­5625 Email: mjball@vorys.com [NTC Retained] Vorys, Sater, Seymour and Pease LLP 52 East Gay Street Columbus, OH 43215

Gregory A. Eurich Direct: 303­295­8166 Email: geurich@hollandhart.com [NTC Retained] Holland & Hart Firm: 303­295­8000 555 17th Street, Suite 3200 Denver, CO 80202

Mark A. Knueve Direct: 614­464­6387 Email: maknueve@vorys.com [COR NTC Retained] Vorys, Sater, Seymour and Pease LLP

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52 East Gay Street Columbus, OH 43215
Joseph Neguse Direct: 303­295­8443 [NTC Retained] Holland & Hart Firm: 303­295­8000 555 17th Street, Suite 3200 Denver, CO 80202
Thomas B. Ridgley Direct: 614­464­6229 Email: tbridgley@vorys.com [NTC Retained] Vorys, Sater, Seymour and Pease LLP 52 East Gay Street Columbus, OH 43215

ABERCROMBIE & FITCH STORES, INC. Defendant ­ Appellant

Michael Jacob Ball Direct: 614­464­5625 [NTC Retained] (see above)
Gregory A. Eurich Direct: 303­295­8166 [NTC Retained] (see above)

Mark A. Knueve Direct: 614­464­6387 [COR NTC Retained] (see above)
Joseph Neguse Direct: 303­295­8443 [NTC Retained] (see above)
Thomas B. Ridgley Direct: 614­464­6229 [NTC Retained] (see above)

J.M. HOLLISTER LLC, DBA Hollister Co. Defendant ­ Appellant

Michael Jacob Ball Direct: 614­464­5625 [NTC Retained] (see above)

Gregory A. Eurich Direct: 303­295­8166 [NTC Retained] (see above)
Mark A. Knueve Direct: 614­464­6387 [COR NTC Retained] (see above)

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

Joseph Neguse Direct: 303­295­8443 [NTC Retained] (see above)
Thomas B. Ridgley Direct: 614­464­6229 [NTC Retained] (see above)

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UNITED STATES OF AMERICA Amicus Curiae

Mark Lenard Gross Direct: 202­514­2172 Email: NO VALID EMAIL ADDRESS ON FILE [NTC Government] United States Department of Justice Civil Rights Division ­ Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044­4403

Bonnie I. Robin­Vergeer Direct: 202­353­2464 Email: bonnie.robin­vergeer@usdoj.gov [NTC Government] United States Department of Justice Civil Rights Division ­ Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044­4403

LEGAL CENTER FOR PEOPLE WITH DISABILITIES AND OLDER Maria Michelle Uzeta

PEOPLE

Direct: 626­765­7625

Amicus Curiae

Email: mmuzeta@msn.com

[NTC Retained]

Law Office of Michelle Uzeta

710 South Myrtle Avenue, Suite 306

Monrovia, CA 91016

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES Amicus Curiae

Maria Michelle Uzeta Direct: 626­765­7625 [NTC Retained] (see above)

CENTER FOR RIGHTS OF PARENTS WITH DISABILITIES Amicus Curiae

Maria Michelle Uzeta Direct: 626­765­7625 [NTC Retained] (see above)

DISABILITY RIGHTS ADVOCATES Amicus Curiae

Maria Michelle Uzeta Direct: 626­765­7625 [NTC Retained] (see above)

DISABILITY RIGHTS EDUCATION AND DEFENSE FUND Amicus Curiae

Maria Michelle Uzeta Direct: 626­765­7625 [NTC Retained] (see above)

DISABILITY RIGHTS LEGAL CENTER Amicus Curiae

Maria Michelle Uzeta Direct: 626­765­7625 [NTC Retained] (see above)

LEGAL AID SOCIETY­EMPLOYMENT LAW CENTER Amicus Curiae

Maria Michelle Uzeta Direct: 626­765­7625 [NTC Retained] (see above)

NATIONAL DISABILITY RIGHTS NETWORK Amicus Curiae

Maria Michelle Uzeta Direct: 626­765­7625 [NTC Retained] (see above)

NATIONAL FEDERATION OF THE BLIND Amicus Curiae

Maria Michelle Uzeta Direct: 626­765­7625 [NTC Retained] (see above)

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DISABILITY RIGHTS CALIFORNIA Amicus Curiae

13-1377 Docket
Maria Michelle Uzeta Direct: 626­765­7625 [NTC Retained] (see above)

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COLORADO CROSS­DISABILITY COALITION, a Colorado non­profit corporation; ANITA HANSEN; JULIE FARRAR, on behalf of themselves and all others similarly situated,

Plaintiffs ­ Appellees,

and

BENJAMIN HERNANDEZ; ROBERT SIROWITZ; JOSHUA STAPEN; ROBIN STEPHENS,

Plaintiffs,

v.

ABERCROMBIE & FITCH CO.; ABERCROMBIE & FITCH STORES, INC.; J.M. HOLLISTER LLC, d/b/a Hollister Co.,

Defendants ­ Appellants.

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

UNITED STATES OF AMERICA; LEGAL CENTER FOR PEOPLE WITH DISABILITIES AND OLDER PEOPLE; AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; CENTER FOR RIGHTS OF PARENTS WITH DISABILITIES; DISABILITY RIGHTS AND ADVOCATES; DISABILITY RIGHTS EDUCATION AND DEFENSE FUND; DISABILITY RIGHTS LEGAL CENTER; LEGAL AID SOCIETY­EMPLOYMENT LAW CENTER; NATIONAL DISABILITY RIGHTS NETWORK; NATIONAL FEDERATION OF THE BLIND,

Amici Curiae.

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09/10/2013

103 pg, 403.81 KB

[10106824] Civil case docketed. Preliminary record filed. DATE RECEIVED: 09/10/2013 Notice of appearance, docketing statement and transcript order form due 09/24/2013 for Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC. Notice of appearance due on 09/24/2013 for Colorado Cross­Disability Coalition, Julie Farrar, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen and Robin Stephens [13­1377] [Entered: 09/10/2013 01:11 PM]

09/13/2013

[10107879] Notice of appearance submitted by Kevin W. Williams and Andrew C. Montoya for Appellees Colorado Cross­Disability Coalition, Ms. Julie Farrar and Ms. Anita Hansen for court review. Certificate of Interested Parties: No. Served on 09/13/2013. Manner of Service: email. [13­1377]­­[Edited 09/13/2013 by KF. PDF removed. The pleading is filed on 9/13/13] KWW [Entered: 09/13/2013 03:24 PM]

09/13/2013

[10107880] Notice of appearance submitted by Julia Campins and Hillary Benham­Baker for Appellees Colorado Cross­Disability Coalition, Ms. Julie Farrar and Ms. Anita Hansen for court review. Certificate of Interested Parties: No. Served on 09/13/2013. Manner of Service: email. ­­[Edited 09/13/2013 by SDS to remove pdf from entry as the pleading has been filed] [13­1377] KWW [Entered: 09/13/2013 03:26 PM]

09/13/2013

[10107882] Notice of appearance submitted by Bill Lann Lee for Appellees Colorado Cross­Disability Coalition, Ms. Julie Farrar and Ms. Anita Hansen for court review. Certificate of Interested Parties: No. Served on 09/13/2013. Manner of Service: email. [13­1377]­­[Edited 09/13/2013 by JM PDF removed filed by the court on 9/13/13.] KWW [Entered: 09/13/2013 03:28 PM]

09/13/2013

[10107883] Notice of appearance submitted by Amy F. Robertson and Timothy P. Fox for Appellees Colorado Cross­Disability Coalition, Ms. Julie Farrar and Ms. Anita Hansen for court review. Certificate of Interested Parties: No. Served on 09/13/2013. Manner of Service: email. ­­[Edited 09/13/2013 by AD. PDF removed, pleading redocketed 9­13­13] [13­1377] KWW [Entered: 09/13/2013 03:29 PM]

09/13/2013
1 pg, 62.85 KB

[10107887] Notice of appearance filed by Mr. Timothy Patrick Fox and Ms. Amy Farr Robertson for Colorado Cross­Disability Coalition, Ms. Anita Hansen and Ms. Julie Farrar. CERT. OF INTERESTED PARTIES: n. Served on 09/13/2013. Manner of Service: email. ­­[Edited 09/16/2013 by AD to correct party filers to reflect notice of appearance] [13­1377] [Entered: 09/13/2013 03:37 PM]

09/13/2013
1 pg, 62.54 KB

[10107890] Notice of appearance filed by Andrew C Montoya and Mr. Kevin W. Williams for Colorado Cross­Disability Coalition, Ms. Anita Hansen and Ms. Julie Farrar. CERT. OF INTERESTED PARTIES: n. Served on 09/13/2013. Manner of Service: email [13­1377] [Entered: 09/13/2013 03:41 PM]

09/13/2013
1 pg, 31.34 KB

[10107892] Notice of appearance filed by Ms. Julia Campins and Ms. Hillary Benham­Baker for Ms. Anita Hansen, Ms. Julie Farrar and Colorado Cross­Disability Coalition. CERT. OF INTERESTED PARTIES: n. Served on 09/13/2013. Manner of Service: email. [13­1377] [Entered: 09/13/2013 03:50 PM]

09/13/2013
1 pg, 59.83 KB

[10107894] Notice of appearance filed by Mr. Bill Lann Lee for Colorado Cross­Disability Coalition, Ms. Anita Hansen and Ms. Julie Farrar. CERT. OF INTERESTED PARTIES: n. Served on 09/13/2013. Manner of Service: email. ­­[Edited 09/16/2013 by AD to correct party filers to reflect notice of appearance] [13­ 1377] [Entered: 09/13/2013 03:53 PM]

09/16/2013
2 pg, 21.9 KB

[10107996] Admissions letter sent. Response date set to 10/16/2013 for Julia Campins. [13­1377] [Entered: 09/16/2013 09:15 AM]

09/16/2013
2 pg, 21.87 KB

[10108007] Admissions letter sent. Response date set to 10/16/2013 for Bill Lann Lee. [13­1377] [Entered: 09/16/2013 09:39 AM]

09/20/2013
104 pg, 4.82 MB

[10109918] Docketing statement filed by Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC. Served on 09/13/2013. Manner of Service: email. [13­1377] MAK [Entered: 09/20/2013 09:15 AM]

09/20/2013

[10109930] Notice of appearance submitted by Mark A. Knueve and Michael J. Ball for Appellants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC for court review. Certificate of Interested Parties: Yes. Served on 09/20/2013. Manner of Service: email. [13­1377]­­[Edited 09/20/2013 by KF. PDf removed. The pleading is filed on 9/20/13] MAK [Entered: 09/20/2013 09:26 AM]

09/20/2013
3 pg, 99.13 KB

[10109971] Notice of appearance filed by Mr. Michael J. Ball and Mr. Mark A. Knueve for Abercrombie & Fitch Stores, Inc., Abercrombie & Fitch Co. and J.M. Hollister LLC. CERT. OF INTERESTED PARTIES: n. (The name listed is an attorney previously listed in this case.) Served on 09/20/2013. Manner of Service: email [13­1377] [Entered: 09/20/2013 10:18 AM]

09/20/2013
1 pg, 9.79 KB

[10110076] Acknowledgment of transcript order filed by Mr. Michael Jacob Ball for Abercrombie & Fitch Stores, Inc., Abercrombie & Fitch Co. and J.M. Hollister LLC. Transcript ordered: Motions Hearing held on August 16, 2013. Served on: 09/20/2013. Manner of Service: email. [13­1377] MJB [Entered: 09/20/2013 12:24 PM]

09/20/2013

[10110219] Minute order filed ­ Transcript order form due 10/04/2013 for Tamara Hoffschildt. Transcript requested: Motions Hearing held on 08/16/2013. (Text Only ­ No Attachment) [13­1377] [Entered: 09/20/2013 02:49 PM]

09/23/2013

[10110582] Notice of appearance submitted by Gregory A. Eurich and Joseph Neguse for Appellants

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Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC for court review. Certificate of Interested Parties: No. Served on 09/23/2013. Manner of Service: email. ­­[Edited 09/23/2013 by SDS to remove pdf from entry as the pleading has been filed] [13­1377] GAE [Entered: 09/23/2013 01:12 PM]

09/23/2013
1 pg, 32.23 KB

[10110622] Notice of appearance filed by Mr. Gregory A. Eurich and Mr. Joseph Neguse for Abercrombie & Fitch Stores, Inc., Abercrombie & Fitch Co. and J.M. Hollister LLC. CERT. OF INTERESTED PARTIES: n. Served on 09/23/2013. Manner of Service: email. [13­1377] [Entered: 09/23/2013 02:18 PM]

09/24/2013
2 pg, 21.12 KB

[10110875] Notice of Mediation Conference filed by the Tenth Circuit Mediation Office. Case is referred for mediation conferencing; conference scheduled for 10/04/2013 at 10:00 am (MDT). Please review the attached Notice for additional information. [13­1377] [Entered: 09/24/2013 10:52 AM]

09/26/2013

[10111604] Minute order filed ­. Hernandez, Sirowitz, Stapen and Stephens changed from plaintiffs­ appellees to just plaintiffs. No entries of appearances in this court filed. (Text Only ­ No Attachment) [13­ 1377] [Entered: 09/26/2013 09:18 AM]

10/08/2013

[10114987] Filed notice record is complete. Served on 10/08/2013. Appellants' brief and appendix due on 11/18/2013 for Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC [13­ 1377] [Entered: 10/08/2013 03:33 PM]

10/17/2013
2 pg, 21.92 KB

[10117377] Attorney admission letter, second notice sent. Attorney admission response date set to 10/28/2013. [13­1377] [Entered: 10/17/2013 11:34 AM]

11/05/2013
5 pg, 36.64 KB

[10122540] Motion filed by Appellees Colorado Cross­Disability Coalition, Ms. Julie Farrar and Ms. Anita Hansen to extend time to file appellee/respondent's brief until 01/02/2014. Served on: 11/05/2013. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­1377] AFR [Entered: 11/05/2013 12:42 PM]

11/12/2013
1 pg, 43.07 KB

[10124159] On the court's own motion and pursuant to 10th Cir. R. 33.1, order filed by (CLK) extending time to file appellants brief and appendix until 12/09/2013. Appellants brief and appendix due on 12/09/2013 for Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC.[13­ 1377] [Entered: 11/12/2013 02:21 PM]

11/25/2013
53 pg, 1.92 MB

[10128011] Motion filed by Appellants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC for stay of Injunctive Relief Pending Appeal. Served on: 11/25/2013. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­ 1377] MAK [Entered: 11/25/2013 12:48 PM]

12/05/2013
34 pg, 623.92 KB

[10130705] Response filed by Colorado Cross­Disability Coalition, Ms. Julie Farrar and Ms. Anita Hansen to Appellants' Motion to Stay Injunctive Relief Pending Appeal. Served on 12/05/2013. Manner of Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­ 1377] JC [Entered: 12/05/2013 11:35 AM]

12/09/2013
163 pg, 7.14 MB

[10131469] Appellant/Petitioner's brief filed by Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC. 7 paper copies to be provided to the court. Served on 12/09/2013 by email. Oral argument requested? Yes. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. ­­[Edited 12/10/2013 by AD to upload additional attachment (additional attachment was included with paper copies of brief)] [13­1377] MAK [Entered: 12/09/2013 11:41 AM]

12/09/2013

[10132004] Appendix filed by Appellants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC. Original and 1 copy. Appendix pages: 1103. Number of volumes: 3. Hardcopy only. Served on 12/09/2013. Manner of Service: US mail. [13­1377] [Entered: 12/10/2013 01:17 PM]

12/10/2013

[10132005] Minute order filed ­ Appellee brief now due 01/13/2014 for Colorado Cross­Disability Coalition, Anita Hansen and Julie Farrar. (Text Only ­ No Attachment) [13­1377] [Entered: 12/10/2013 01:18 PM]

12/12/2013
13 pg, 249.18 KB

[10132835] Motion filed by Appellants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC for stay of Injunctive Relief Pending Appeal. Served on: 12/12/2013. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­ 1377] MAK [Entered: 12/12/2013 12:34 PM]

12/19/2013
5 pg, 37.63 KB

[10134970] Motion filed by Appellees Colorado Cross­Disability Coalition, Ms. Julie Farrar and Ms. Anita Hansen to extend time to file appellee/respondent's brief until 02/03/2014. Served on: 12/19/2013. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­1377] AFR [Entered: 12/19/2013 03:54 PM]

12/20/2013
1 pg, 21.07 KB

[10135213] Order filed by Clerk of the Court granting Appellees' motion to extend time to file eres brief. Appellees' brief now due 02/03/2014 for Colorado Cross­Disability Coalition, Anita Hansen and Julie Farrar. (21­day extension). Served on 12/20/2013. [13­1377] [Entered: 12/20/2013 12:47 PM]

12/23/2013
3 pg, 25.68 KB

[10135480] Order filed by Judges Tymkovich and Phillips denying appellants' motion for stay filed by Appellants Abercrombie & Fitch Stores, Inc., Abercrombie & Fitch Co. and J.M. Hollister LLC. Served on 12/23/2013. [13­1377] [Entered: 12/23/2013 10:40 AM]

02/03/2014

[10146195] Appellee/Respondent's brief filed by Colorado Cross­Disability Coalition, Ms. Julie Farrar and

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Ms. Anita Hansen. 7 paper copies to be provided to the court. Served on: 02/03/2014. Manner of service: 100 pg, 499.74 KB email. Oral argument requested? Yes. This pleading complies with all required (privacy, paper copy and
virus) certifications: Yes. [13­1377] AFR [Entered: 02/03/2014 03:32 PM]

02/03/2014

[10147460] Supplemental appendix filed by Appellees Colorado Cross­Disability Coalition, Ms. Julie Farrar and Ms. Anita Hansen. Original and 1 copy. Appendix pages: 298. Number of volumes: 2 (Volume 1 filed under seal). Hardcopy only. Served on 02/05/2014. Manner of Service: US mail. [13­1377] [Entered: 02/06/2014 02:41 PM]

02/06/2014

[10147464] Minute order filed ­ Appellants' optional reply brief now due 02/21/2014 for Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC. (Text Only ­ No Attachment) [13­1377] [Entered: 02/06/2014 02:43 PM]

02/10/2014
11 pg, 109.1 KB

[10148086] Motion submitted by Legal Center for People with Disabilities and Older People, American Association of People with Disabilities, Center for Rights of Parents with Disabilities, Disability Rights Advocates, Disability Rights Education and Defense Fund, et al. for leave to file an amicus brief. Served on: 02/10/2014 Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­1377] MMU [Entered: 02/10/2014 09:46 AM]

02/10/2014

This entry has been removed from the docket. [lg] Brief has been filed as of 2/10/2014 [10148119] Amicus Curiae brief received but not filed, filed by AAPD, Centers for Rights of Parents with Disabilities, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Legal Center, Legal Aid Society­Employment Law Center, Legal Center For People With Disabilities And Older People, National Disability Rights Network and National Federation of the Blind. 7 paper copies to be provided to the court. Served on 02/10/2014. Manner of Service: email. [13­1377] [Entered: 02/10/2014 10:32 AM]

02/10/2014

[10148120] Notice of appearance submitted by Sasha Samberg­Champion for UNITED STATES AS AMICUS for court review. Certificate of Interested Parties: No. Served on 02/10/2014. Manner of Service: email. ­­[Edited 02/10/2014 by SDS to remove pdf from entry as the pleading has been filed][13­1377] SMS [Entered: 02/10/2014 10:33 AM]

02/10/2014

[10148124] Notice of appearance submitted by Mark L. Gross for UNITED STATES AS AMICUS for court review. Certificate of Interested Parties: No. Served on 02/10/2014. Manner of Service: email. ­­[Edited 02/10/2014 by SDS to remove pdf from entry as the pleading has been filed] [13­1377] SMS [Entered: 02/10/2014 10:38 AM]

02/10/2014
1 pg, 30.59 KB

[10148125] Notice of appearance filed by Mr. Sasha M. Samberg­Champion for United States of America. CERT. OF INTERESTED PARTIES: n. Served on 02/10/2014. Manner of Service: email. [13­1377] [Entered: 02/10/2014 10:39 AM]

02/10/2014
1 pg, 30.63 KB

[10148130] Notice of appearance filed by Mr. Mark L. Gross for United States of America. CERT. OF INTERESTED PARTIES: n. Served on 02/10/2014. Manner of Service: email. [13­1377] [Entered: 02/10/2014 10:44 AM]

02/10/2014
2 pg, 27.07 KB

[10148201] Order filed by Clerk of the Court granting the Amici motion to become amicus filed by the Legal Center for People with Disabilities and Older People, et al. Served on 02/10/2014. [13­1377] Please see order for additional information. [Entered: 02/10/2014 12:10 PM]

02/10/2014

This entry has been removed from the docket. Brief docketed as filed by clerk as of 02/10/2014. [sds] [10148355] Amicus Curiae brief submitted by UNITED STATES. 7 paper copies to be provided to the court. Served on 02/10/2014. Manner of Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­1377] SMS [Entered: 02/10/2014 02:41 PM]

02/10/2014

[10148671] Amicus Curiae brief filed by United States of America. 7 paper copies provided to the court.

37 pg, 88.74 KB Served on 02/10/2014. Manner of Service: email. [13­1377] [Entered: 02/11/2014 12:36 PM]

02/10/2014
17 pg, 146.87 KB

[10148797] Amicus Curiae brief filed by AAPD, Center for Rights of Parents with Disabilities, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Legal Center, Legal Aid Society­Employment Law Center, Legal Center For People With Disabilities And Older People, National Disability Rights Network and National Federation of the Blind. Original and 7 copies. Served on 02/10/2014. Manner of Service: email. [13­1377] [Entered: 02/11/2014 03:43 PM]

02/21/2014
39 pg, 235.14 KB

[10151354] Appellant/Petitioner's reply brief filed by Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC. 7 paper copies to be provided to the court. Served on 02/21/2014. Manner of Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­1377] MAK [Entered: 02/21/2014 11:59 AM]

02/21/2014
6 pg, 473.36 KB

[10151356] Motion filed by Appellants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC to expedite case. Served on: 02/21/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­1377] MAK [Entered: 02/21/2014 12:04 PM]

02/21/2014

[10151467] Notice of an NDAs re­sent to Andrew Montoya. [13­1377] [Entered: 02/21/2014 02:43 PM]

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02/28/2014
2 pg, 27.19 KB
03/14/2014
2 pg, 27.57 KB
03/18/2014
7 pg, 41.81 KB
03/21/2014
4 pg, 45.07 KB
03/24/2014
1 pg, 394.39 KB
03/25/2014
1 pg, 285.17 KB
03/31/2014
1 pg, 47 KB
03/31/2014
5 pg, 9.36 KB
04/01/2014
2 pg, 413.11 KB
04/02/2014
1 pg, 45.16 KB
04/02/2014
1 pg, 45.11 KB
04/03/2014
1 pg, 36.11 KB
04/03/2014 04/16/2014
1 pg, 31.54 KB
04/17/2014
1 pg, 49.34 KB
04/18/2014
1 pg, 36.18 KB

13-1377 Docket
[10153396] Order filed by Clerk of the Court referring Appellants' Unopposed Motion to Expedite Appeal [10151356­2] to the panel of judges that will later be assigned to consider this case on the merits (no ruling will issue at this time). Although the motion to expedite has been referred to the panel that will decide the issues in the appeal, the case will be placed on the next available oral argument calendar and will accordingly be heard sometime during the week of May 12, 2014 on a date to be more specifically announced later. Served on 02/28/2014. [13­1377] [Entered: 02/28/2014 09:44 AM]
[10157488] Order filed by Judges Kelly and Tymkovich. This matter is before the court, sua sponte, to reconsider our order dated December 23, 2013 denying defendants­appellants' Motion to Stay Injunctive Relief Pending Appeal. Upon further consideration, the district court's order dated August 20, 2013 granting injunctive relief is stayed pending further order of this court. Served on 03/14/2014. [13­1377] [Entered: 03/14/2014 09:11 AM]
[10158303] Motion filed by Appellees Colorado Cross­Disability Coalition, Ms. Julie Farrar and Ms. Anita Hansen to reschedule oral argument. Served on: 03/18/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­1377] AFR [Entered: 03/18/2014 10:09 AM]
[10159510] Order filed by the Clerk at the direction of the Court ­ Denying Attorney motion to reschedule oral argument filed by Appellees Colorado Cross­Disability Coalition, Ms. Anita Hansen and Ms. Julie Farrar. Further,the motion to expedite filed on February 21, 2014 is granted to the extent that the court will adhere to its original scheduling of a May 2014 oral argument in this matter. Served on 03/21/2014. [13­ 1377] [Entered: 03/21/2014 02:44 PM]
[10159951] Calendar notice sent to counsel. Arguments to be held on Tuesday, May 13, 2014 at 9:00 A.M. in Courtroom III, Byron White United States Courthouse, Denver, CO. Counsel is required to go to http://www.ca10.uscourts.gov under the argument calendar tab to obtain an important notice regarding calendared cases and required forms. The calendar acknowledgment form (and the custody status form when applicable) must be completed and filed with the clerk via Electronic Case Filing within 10 days of today's date. [13­1377] Amicus curiae do not present oral argument without special permission from the court. Counsel for Amici do not need to file the acknowledgment form unless permission to argue has been granted by order of the court. [Entered: 03/24/2014 02:43 PM]
[10160261] Oral Argument Acknowledgment Form filed by Colorado Cross­Disability Coalition, Ms. Julie Farrar and Ms. Anita Hansen. Served on 03/25/2014. Manner of Service: email. [13­1377] AFR [Entered: 03/25/2014 10:45 AM]
[10161766] Oral Argument Acknowledgment Form filed by Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC. Served on 03/31/2014. Manner of Service: email. [13­1377] MAK [Entered: 03/31/2014 08:58 AM]
[10162037] Motion filed by Amicus Curiae United States of America for leave to allow amicus curiae to participate at oral argument. Served on: 03/31/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­1377] SMS [Entered: 03/31/2014 03:16 PM]
[10162574] Order filed by Clerk of the Court. Amici Curiae's motion to participate in oral argument is granted. Six minutes of argument time ceded by the appellees will be given to the United States. Served on 04/01/2014. [13­1377] [Entered: 04/01/2014 04:19 PM]
[10162717] Oral Argument Acknowledgment Form filed by Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC. Served on 04/02/2014. Manner of Service: email. [13­1377] GAE [Entered: 04/02/2014 11:21 AM]
[10162720] Oral Argument Acknowledgment Form filed by Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC. Served on 04/02/2014. Manner of Service: email. [13­1377] JN [Entered: 04/02/2014 11:23 AM]
[10163185] Oral Argument Acknowledgment Form filed by United States of America. Served on 04/03/2014. Manner of Service: email. [13­1377] SMS [Entered: 04/03/2014 11:43 AM]
[10163251] Mark A. Knueve and Amy Farr Robertson re­added as arguing attorneys. [13­1377] [Entered: 04/03/2014 01:24 PM]
[10167219] Notice of courtroom change for oral argument on 05/13/2014 from III to II. Counsel shall report 45 minutes prior to the session to check in with the Clerk. Arguing counsel must complete a new calendar acknowledgment form within 10 days to confirm the change. [13­1377] [Entered: 04/16/2014 02:29 PM]
[10167373] Oral Argument Acknowledgment Form filed by Abercombie & Fitch. Served on 04/17/2014. Manner of Service: email. [13­1377] ­­[Edited 04/25/2014 by AS to show party filing Oral Argument Ack Form] MAK [Entered: 04/17/2014 08:00 AM]
[10167943] Oral Argument Acknowledgment Form filed by United States of America. Served on 04/18/2014. Manner of Service: email. [13­1377] SMS [Entered: 04/18/2014 12:09 PM]

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04/25/2014
1 pg, 409.37 KB

13-1377 Docket
[10170183] Oral Argument Acknowledgment Form filed by Colorado Cross Disability Coalition. Served on 04/25/2013. Manner of Service: email. [13­1377] ­­[Edited 04/25/2014 by AS to show party filing Oral Argument Ack Form] AFR [Entered: 04/25/2014 09:22 AM]

04/25/2014

[10170269] Mark A. Knueve and Amy Robertson and Sasha M. Samberg­Champion re­added as arguing attorneys. [13­1377] [Entered: 04/25/2014 10:58 AM]

05/13/2014
2 pg, 16.74 KB

[10175580] Case argued by Mark Knueve for the Appellant, Amy Robertson for the Appellee, Sasha Samberg­Champion for the Amici Curiae, and submitted to Judges Kelly, Tymkovich and McHugh. [13­ 1377] [Entered: 05/13/2014 12:53 PM]

06/20/2014
4 pg, 7.24 KB

[10185333] Motion filed by Amicus Curiae United States of America for attorney Sasha Samberg­ Champion to withdraw as counsel.. Served on: 06/20/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­1377] SMS [Entered: 06/20/2014 10:35 AM]

06/23/2014
2 pg, 21.95 KB

[10185709] Order filed by Judges Kelly, Tymkovich and McHugh granting Attorney Sasha Samberg­ Champion's motion to withdraw as counsel for Amici Curiae, United States. Served on 06/23/2014. [13­ 1377] [Entered: 06/23/2014 12:14 PM]

09/02/2014
76 pg, 363.6 KB

[10202724] Affirmed in Part, Reversed in Part, Vacated and Remanded; Terminated on the merits after oral hearing; Written, signed, published; Judges Kelly, authoring judge Tymkovich and McHugh, concurring in part and dissenting in part. Mandate to issue. [13­1377] [Entered: 09/02/2014 11:05 AM]

09/02/2014
2 pg, 27.93 KB

[10202726] Judgment for opinion filed. [13­1377] [Entered: 09/02/2014 11:09 AM]

09/10/2014
10 pg, 65.17 KB

[10205056] Motion filed by Appellees Colorado Cross­Disability Coalition, Ms. Julie Farrar and Ms. Anita Hansen to extend time to file petition for rehearing until 10/16/2014. Served on: 09/10/2014. Manner of service: US mail, email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­1377] AFR [Entered: 09/10/2014 09:24 AM]

09/12/2014
2 pg, 30.18 KB

[10205837] Order filed by Judges Kelly, Tymkovich and McHugh granting appellees' motion to extend time to file a petition for rehearing. Any petition shall be filed on or before 10/16/2014. Served on 09/12/2014. [13­1377] [Entered: 09/12/2014 11:03 AM]

09/30/2014

[10211199] Notice of appearance submitted by Bonnie Robin­Vergeer for Amicus Curiae United States of AmericaAmicus Curiae for court review. Certificate of Interested Parties: No. Served on 09/30/2014. Manner of Service: email. [13­1377]­­[Edited 09/30/2014 by LG to remove PDF from entry, as pleading was filed on 9/30/2014] BIR [Entered: 09/30/2014 01:23 PM]

09/30/2014
2 pg, 30.47 KB

[10211244] Notice of appearance filed by Ms. Bonnie I. Robin­Vergeer for United States of America. CERT. OF INTERESTED PARTIES: n. Served on 09/30/2014. Manner of Service: email [13­1377] [Entered: 09/30/2014 01:54 PM]

10/16/2014

This entry has been removed from the docket. [JMN] Pleading filed incorrect as a motion. The court re­ filed correct as a petition for rehearing. [10215729] Motion filed by Appellees Colorado Cross­Disability Coalition, Ms. Julie Farrar and Ms. Anita Hansen for rehearing, for rehearing en banc. Served on: 10/16/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­1377] AFR [Entered: 10/16/2014 11:47 AM]

10/16/2014

[10215740] Petition for rehearing en banc filed by Colorado Cross­Disability Coalition, Ms. Julie Farrar

96 pg, 597.29 KB and Ms. Anita Hansen. Served on 10/16/2014. Manner of Service: email. [13­1377] [Entered: 10/16/2014 11:58 AM]

10/16/2014
2 pg, 27.64 KB

[10215940] Order filed by Judges Kelly, Tymkovich and McHugh (CW) directing appellants to file a response to petition for rehearing en banc. Response due on 10/30/2014 for Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC. Served on 10/16/2014. [13­1377] [Entered: 10/16/2014 05:12 PM]

10/23/2014

[10217939] Amicus Curiae brief submitted by UNITED STATES. 12 paper copies to be provided to the court. Served on 10/23/2014. Manner of Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­1377]­­[Edited 10/23/2014 by LG to remove PDF as brief was filed as of 10/23/2014] BIR [Entered: 10/23/2014 12:39 PM]

10/23/2014

This entry has been removed from the docket. Motion docketed as filed by clerk on 10/23/2014. [sds] [10217944] Motion submitted by Legal Center for People With Disabilities and Older People, American Association of People With Disabilities, Center for Rights of Parents With Disabilities, Disability Rights Advocates, Disability Rights California, et al. for leave to file an amicus brief. Served on: 10/23/2014 Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13­1377] MMU [Entered: 10/23/2014 12:52 PM]

10/23/2014

[10217947] Amicus Curiae brief filed by United States of America. Original and 7 copies. Served on

22 pg, 66.62 KB 10/23/2014. Manner of Service: email. [13­1377] [Entered: 10/23/2014 12:57 PM]

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22 pg, 116.31 KB

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[10217948] Amicus Curiae brief received but not filed by Legal Center for People With Disabilities and Older People, American Association of People With Disabilities, Center for Rights of Parents With Disabilities, Disability Rights Advocates, Disability Rights California, et al.. 7 paper copies to be provided to the court. Served on 10/23/2014. Manner of Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. ­­[Edited 10/23/2014 by SDS to show as received and not filed] [13­1377] MMU [Entered: 10/23/2014 12:59 PM]

10/23/2014
11 pg, 74.95 KB

[10217986] Motion for leave to file an amicus brief filed by Amici Curiae , AAPD, Center for Rights of Parents with Disabilities, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Legal Center, Disability Rights California, Legal Aid Society­Employment Law Center, Legal Center For People With Disabilities And Older People, National Disability Rights Network and National Federation of the Blind. Served on 10/23/2014. Manner of Service: email. [13­1377] [Entered: 10/23/2014 01:32 PM]

10/23/2014
22 pg, 115.94 KB

[10224432] Amicus Curiae brief filed by AAPD, Center for Rights of Parents with Disabilities, Disability Rights Advocates, Disability Rights California, Disability Rights Education and Defense Fund, Disability Rights Legal Center, Legal Aid Society­Employment Law Center, Legal Center For People With Disabilities And Older People, National Disability Rights Network and National Federation of the Blind. Served on 10/23/2014. Manner of Service: email. Filed per the court's order of 11/14/2014. [13­1377] [Entered: 11/14/2014 02:23 PM]

10/30/2014
22 pg, 237.39 KB

[10219991] Appellants' response to petition for rehearing and rehearing en banc filed by Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC. 12 paper copies to be provided to the court. Served on 10/30/2014. Manner of Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes.­­[Edited 10/30/2014 by SDS to correct event and modify docket text] [13­1377] MAK [Entered: 10/30/2014 11:23 AM]

11/14/2014

[10224425] Order filed by Judges Kelly, Tymkovich and McHugh granting Motion for Leave to File Brief of Amici Curiae Legal Center for People with Disabilities and Older People, et al., in Support of Plaintiffs­ Appellees' Petition for Rehearing and Rehearing En Banc. Served on 11/14/2014. Text only entry ­ please see subsequent entry for PDF. [13­1377] [Entered: 11/14/2014 02:15 PM]

11/14/2014
2 pg, 27.41 KB

[10224428] Order filed by Judges Kelly, Tymkovich and McHugh denying petition for rehearing en banc filed by Appellees Colorado Cross­Disability Coalition, Ms. Anita Hansen and Ms. Julie Farrar. The Motion for Leave to File Brief of Amici Curiae Legal Center for People with Disabilities and Older People, et al., in Support of Plaintiffs­Appellees' Petition for Rehearing and Rehearing En Banc is granted. The brief shall be filed as of the date of receipt. [13­1377] [Entered: 11/14/2014 02:18 PM]

11/24/2014
2 pg, 21.2 KB

[10226879] Mandate issued. [13­1377] [Entered: 11/24/2014 08:35 AM]

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 FILED Appellate Case: 13-1377 Document: 01019303233 Date FileUdn:i0te9d/0S2tT/a2et0ne1st4hCCouiPrrcatugoietf:A1ppeals

August 29, 2014

PUBLISH

Elisabeth A. Shumaker

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation; ANITA HANSEN; JULIE FARRAR, on behalf of themselves and all others similarly situated,
Plaintiffs - Appellees,
and
BENJAMIN HERNANDEZ; ROBERT SIROWITZ; JOSHUA STAPEN; ROBIN STEPHENS,
Plaintiffs,
v.
ABERCROMBIE & FITCH CO.; ABERCROMBIE & FITCH STORES, INC.; J.M. HOLLISTER LLC, d/b/a Hollister Co.,
Defendants - Appellants.
---------------------------
UNITED STATES OF AMERICA; LEGAL CENTER FOR PEOPLE WITH DISABILITIES AND OLDER PEOPLE; AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; CENTER FOR RIGHTS OF PARENTS WITH DISABILITIES; DISABILITY

No. 13-1377

Appellate Case: 13-1377 Document: 01019303233 Date Filed: 09/02/2014 Page: 2
RIGHTS AND ADVOCATES; DISABILITY RIGHTS EDUCATION AND DEFENSE FUND; DISABILITY RIGHTS LEGAL CENTER; LEGAL AID SOCIETY– EMPLOYMENT LAW CENTER; NATIONAL DISABILITY RIGHTS NETWORK; NATIONAL FEDERATION OF THE BLIND,
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:09-CV-02757-WYD-KMT)
Mark A. Knueve (and Michael J. Ball of Vorys, Sater, Seymour and Pease, LLP, Columbus, Ohio; Gregory Alan Eurich and Joseph Neguse of Holland & Hart LLP, Denver, Colorado, on the briefs), for Defendants - Appellant.
Amy F. Robertson (and Timothy P. Fox of Civil Rights Education and Enforcement Center, Denver, Colorado; Bill Lann Lee of Lewis, Feinberg, Lee, Renaker & Jackson, PC, Oakland, California; Kevin W. Williams and Andrew C. Montoya of Colorado Cross Disability Coalition, Denver, Colorado; Julia Campins and Hillary Benham-Baker of Campins, Benham-Baker, LLP, San Francisco, California, on the brief), for Plaintiffs - Appellees.
Sasha Samberg-Champion, (Jocelyn Samuels, Acting Assistant Attorney General, and Mark L. Gross, Department of Justice, Civil Rights Division, Appellate Section, on the brief), Washington, D.C., for Amicus Curiae United States of America.
Michelle Uzeta, Monrovia, California, for Amici Curiae Legal Center for People With Disabilities and Older People, American Association of People with Disabilities, Center for Rights of Parents with Disabilities, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Legal Center, Legal Aid Society – Employment Law Center, National Disability Rights Network and National Federation of the Blind.
2

Appellate Case: 13-1377 Document: 01019303233 Date Filed: 09/02/2014 Page: 3
Before KELLY, TYMKOVICH, and McHUGH, Circuit Judges.
KELLY, Circuit Judge.
Defendants–Appellants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., and J.M. Hollister LLC, d/b/a Hollister Co. (collectively, Abercrombie)1 appeal from several orders by the district court holding that Hollister clothing stores violate the Americans with Disabilities Act (ADA). First, Abercrombie challenges the district court’s holding that the Plaintiffs have Article III standing. See Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., 957 F. Supp. 2d 1272, 1277 (D. Colo. 2013). Second, it challenges the court’s certification of a nationwide class of disabled persons who shop at Hollister stores. See Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., No. 09-cv-02757, 2012 WL 1378531, at *7 (D. Colo. 2012). Third, it challenges the court’s holding that entrances at many Hollister stores violate Title III of the ADA. See Abercrombie & Fitch Co., 957 F. Supp. 2d at 1283. Finally, it challenges the court’s entry of a permanent injunction remedying those violations. See Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., No. 09-cv-02757,
1 Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC are wholly owned subsidiaries of Abercrombie & Fitch Co. For simplicity, this opinion refers to the defendant entities as “Abercrombie” and the public accommodation at issue as “Hollister stores” or “Hollister.”
3

Appellate Case: 13-1377 Document: 01019303233 Date Filed: 09/02/2014 Page: 4
2013 WL 6050011, at *1 (D. Colo. 2013). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for further proceedings.
Background Plaintiff–Appellee Colorado Cross-Disability Coalition (CCDC) is a disability advocacy organization in Colorado. Aplee. Br. 7. It advocates on behalf of its members to promote “independence, self-reliance, and full inclusion for people with disabilities in the entire community.” II Aplt. App. 486. In 2009, CCDC notified Abercrombie that Hollister stores at two malls in Colorado—Orchard Town Center and Park Meadows Mall—violated the ADA. Aplt. Br. 4-5. Initial attempts to settle the matter were unsuccessful, and this litigation followed. Id. at 4. An ADA complaint was filed by CCDC and four of its members, one of whom was Anita Hansen. I Aplt. App. 24. Ms. Hansen, who uses a wheelchair for mobility, encountered accessibility obstacles at the Hollister at Orchard Town Center. Id. at 111. Because steps led to the store’s center entrance, she attempted to enter the store through an adjacent side door, which was locked. Id. at 112. A Hollister employee let her in, but once inside, Ms. Hansen had to ask employees to move tables and furniture to get about the store. Id. This experience left her “frustrated and humiliated.” Id. at 113. She had a similar experience at the Hollister at Park Meadows Mall. Id. at 114-15. The complaint alleged that these
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barriers, including the stepped “porch-like structure” that served as the stores’ center entrance, violated Title III of the ADA. Id. at 29-37. The Plaintiffs added class allegations to the complaint, challenging these barriers at “Hollister Co. stores throughout the United States.” Id. at 71.
Abercrombie took it upon itself to correct some of these barriers. It modified Hollister stores by lowering sales counters, rearranging merchandise to ensure an unimpeded path of travel for customers in wheelchairs, adding additional buttons to open the adjacent side doors, and ensuring that the side doors were not blocked or locked. III Aplt. App. 782. However, one thing remained unchanged: a stepped, porch-like structure served as the center entrance at many Hollister stores.
There are two types of Hollister stores in the United States: those with center entrances that are level with the surrounding mall floor, and those like the Park Meadows Hollister2 that feature a stepped porch as their center entrance. Aplt. Br. 5-6. These porches share a common design: the porch protrudes into the mall corridor and is covered by a terracotta roof, which gives it the look and feel
2 Some Hollister stores, including the one at Orchard Town Center, have closed since the start of this case. III Aplt. App. 782-83. For much of the time that this case was proceeding before the district court, porches were present at 249 Hollister stores in the United States. See II Aplt. App. 688. When this appeal was briefed, that number was 231. See Aplt. Br. 3. The case is moot as to these closed stores; therefore, we will focus on the Park Meadows Hollister, which remains open.
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Appellate Case: 13-1377 Document: 01019303233 Date Filed: 09/02/2014 Page: 6 of a Southern California surf shack. Id. at 6; Aplee. Br. 4. Two steps lead from the mall floor onto the porch—where clothed mannequins, upholstered chairs, and marketing images are displayed—and another two steps lead off the porch into either the “Dudes” (male) or “Bettys” (female) side of the store. Aplt. Br. 5-7; Aplee. Br. 4-5. On either side of the porch are two doors leading into the store that are level with the mall floor. Aplt. Br. 5. These doors are on the same storefront as the porch. Whether a person enters the store through one of these doors, or ascends and descends the porch, that person arrives at the same point in either the Dudes or Bettys side of the store. Id. at 6-7. The following picture, depicting the raised porch in the center and the level doors to the sides, may be a helpful reference.
After the Plaintiffs filed a third amended complaint, Abercrombie moved to 6

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dismiss arguing that the Plaintiffs lacked Article III standing. I Aplt. App. 184. The district court denied the motion, holding that the Plaintiffs alleged a “real and immediate threat” of future harm if the alleged ADA violations were not remedied. Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., No. 09-cv02757, 2011 WL 2173713, at *3 (D. Colo. 2011). The Plaintiffs filed a motion for partial summary judgment, asking for judgment as a matter of law on whether the porch at the Park Meadows Hollister violated Title III of the ADA. I Aplt. App. 270. The Department of Justice (DOJ) filed a Statement of Interest supporting the Plaintiffs. II Aplt. App. 346. The district court granted the Plaintiffs’ motion, holding that the “steps to the center entrance are a legally unacceptable piece of [Hollister’s] branding and violate Title III of the ADA.” Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., 835 F. Supp. 2d. 1077, 1083 (D. Colo. 2011).
Thereafter, four of the named Plaintiffs withdrew, and Julie Farrar, another CCDC member who uses a wheelchair, was added to join Ms. Hansen on the final complaint. II Aplt. App. 474. On the Plaintiffs’ motion, the district court certified a class defined as
all people with disabilities who use wheelchairs for mobility who, during the two years prior to the filing of the Complaint in this case, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. Store in the United States on the basis of disability because of the presence of an Elevated
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Entrance. Abercrombie & Fitch Co., 2012 WL 1378531, at * 1.
The parties filed cross motions for summary judgment. The Plaintiffs sought summary judgment on whether all Hollister stores with porches—some 249 stores nationwide—violated Title III of the ADA. II Aplt. App. 698. They also sought entry of a permanent injunction remedying this nationwide violation. Id. Abercrombie sought summary judgment on standing, arguing that the Plaintiffs failed to offer proof of a concrete injury in fact. III Aplt. App. 946-47. It also argued that the district court’s earlier grant of partial summary judgment should be vacated because Abercrombie made changes to the Park Meadows Hollister addressing the court’s concerns. Id. at 711. The district court granted the Plaintiffs’ motion in full and denied Abercrombie’s. Abercrombie & Fitch Co., 957 F. Supp. 2d at 1283-84. The court held that the Plaintiffs produced evidence of their standing and that Abercrombie’s changes to the Park Meadows Hollister did not moot the claim against the porch entrance. Id. at 1277. The court then held that the porch structures at all Hollister stores violated Title III of the ADA. Id. at 1283.
Finally, the court entered a permanent injunction; it ordered Abercrombie to bring all Hollister stores with porches into compliance with Title III of the ADA within three years, at a rate of at least 77 stores per year. III Aplt. App. 1098-99. Abercrombie could do so by modifying the porches in one of three
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ways: (1) making the porch entrance “level with the surrounding floor space”; (2) placing a ramp on the porch; or (3) closing the porch off from “any public access.” Id. at 1098. Abercrombie appealed.
Discussion I. Standing
This court reviews standing de novo. Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004). At its “irreducible constitutional minimum,” standing has three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, a plaintiff must suffer an “injury in fact” that is actual or imminent. Id. Second, the injury must be fairly traceable to the challenged action of the defendant. Id. Third, it must be likely that the injury will be redressed by the relief requested. Id. at 561. In response to a summary judgment motion, a plaintiff must support each element of standing by setting forth, through affidavit or other evidence, “‘specific facts,’ which for purposes of the summary judgment motion will be taken to be true.” Id. (citation omitted) (quoting Fed. R. Civ. P. 56(e)).
Abercrombie contends that Ms. Hansen and Ms. Farrar have not suffered a genuine injury in fact because they are ADA testers. Aplt. Br. 19-20. This court has held, however, that “testers have standing to sue under Title II of the ADA.” Tandy, 380 F.3d at 1287. We believe the same is true for Title III of the ADA.
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See Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1332-34 (11th Cir. 2013) (relying on Tandy and holding that testers have standing under Title III of ADA). Like Title II, Title III provides remedies for “any person” subjected to illegal disability discrimination. Compare 42 U.S.C. § 12133 (Title II), with id. § 12188(a)(1) (Title III); see also Tandy, 380 F.3d at 1286-87. Thus, anyone who has suffered an invasion of the legal interest protected by Title III may have standing, regardless of his or her motivation in encountering that invasion. However, the fact that “tester standing” exists under Title III does not displace the general requirements of standing. See Houston, 733 F.3d at 1334. Like any plaintiff, a tester must demonstrate that she has indeed suffered a cognizable injury in fact that will be redressed by the relief sought.
The “injury in fact” requirement differs “depending on whether the plaintiff seeks prospective or retrospective relief.” Tandy, 380 F.3d at 1283 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)). When prospective relief—such as an injunction—is sought, “the plaintiff must be suffering a continuing injury or be under a real and immediate threat of being injured in the future.” Id. In Tandy, we held that several ADA testers had standing to seek injunctive relief against the City of Wichita. Id. at 1287-89. These plaintiffs were “under a real and immediate threat of experiencing a lift malfunction” on the city’s buses because they averred in affidavits an intent “to test Wichita Transit’s
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fixed-route services several times per year.” Id. at 1287.3 We held that “testimony of an intent to use buses ‘several times per year’ suggests a concrete, present plan to use” the buses “several times each year, including the year in which [the plaintiff] made that statement.” Id. at 1284; see also id. at 1285 n.12. This contrasted with the plaintiffs in Lujan v. Defenders of Wildlife, whom the Supreme Court held “merely expressed a desire to someday visit places halfway around the world.” Id. (citing Defenders of Wildlife, 504 U.S. at 564).
With these principles in mind, we hold that Plaintiff Julie Farrar has standing to seek prospective relief. In two affidavits, Ms. Farrar averred that she “intend[s] to . . . return to” the Park Meadows Hollister, II Aplt. App. 463, and that she “will likely be going to the Park Meadows Mall at least six times per year,” id. at 644. This “six times per year” testimony has the same effect as the “several times per year” testimony in Tandy. It suggests a concrete, present plan to return to the Park Meadows Hollister several times—at least six—each year, including the year in which Ms. Farrar made that statement. See Tandy, 380 F.3d at 1284.
Abercrombie challenges the plausibility of Ms. Farrar’s intent to return to the Park Meadows Hollister, pointing out that she has never entered a Hollister store and that the Park Meadows Mall is not the closest to her home. Aplt. Br.
3 We held that one plaintiff lacked standing because he failed to file such an affidavit. Tandy, 380 F.3d at 1288.
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21-22; Aplt. Reply Br. 5. For the purposes of summary judgment, however, we must take the specific facts set forth in Ms. Farrar’s affidavit as true. See Defenders of Wildlife, 504 U.S. at 561. Moreover, her claim that she will return to the Park Meadows Hollister at least six times per year is not rendered implausible by the distance between the store and her home. Ms. Farrar testified that she will go to the Park Meadows Mall more often now that her friend has moved nearby. II Aplt. App. 644, 661; see Houston, 733 F.3d at 1336-37 (ADA plaintiff suffered an injury in fact because his frequent trips to his lawyer’s offices took him near the defendant’s store, which was more than thirty miles from his home). Ms. Farrar’s testimony demonstrates that she suffers a real and imminent threat of encountering the alleged accessibility barrier at the Park Meadows Mall in the future; this injury is directly traceable to the porch at Abercrombie’s store, and it is likely that a remedial injunction, if warranted, would redress this harm. Therefore, Ms. Farrar has standing to seek prospective relief.
Ms. Farrar sought prospective relief as the representative of a nationwide class. Because we hold that she has Article III standing to challenge the porch at the Park Meadows Hollister, we need not decide whether the other named Plaintiffs, i.e., Anita Hansen and CCDC, have standing to serve as class representatives. See Horne v. Flores, 557 U.S. 433, 446-47 (2009); Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n.9 (1977) (“[W]e have
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at least one individual plaintiff who has demonstrated standing . . . . Because of
the presence of this plaintiff, we need not consider whether the other individual
. . . plaintiffs have standing to maintain the suit.”). However, Abercrombie insists
that our standing analysis does not end at the Park Meadows Mall. It argues that
Ms. Farrar lacks standing to bring a claim for nationwide injunctive relief because
she does not intend to visit every Hollister store with a porch—over 230 stores
nationwide. Aplt. Br. 23-24. We have no doubt that if Ms. Farrar were seeking a
nationwide injunction in her own right, then she would lack standing to challenge accessibility barriers at stores she never intends to visit.4 See Scherr v. Marriot
Int’l, Inc., 703 F.3d 1069, 1075 (7th Cir. 2013) (although ADA plaintiff had
standing to challenge the design of a single hotel she intended to visit, plaintiff
lacked standing to challenge that same design at 56 other hotels she had no plans
to visit). Although the concepts of standing and adequacy of status to maintain a
4 In this case, the district court held that the “individual named Plaintiffs have standing to bring a claim requesting nationwide injunctive relief.” Colo. Cross-Disability Coal. v. Abercrombie & Fitch, No. 09-cv-02757, 2011 WL 1930643, at *4 (D. Colo. 2011). This holding seems superfluous, however, given that the individual Plaintiffs did not request a nationwide injunction to remedy their own injuries but rather to remedy the injuries of a nationwide class they sought to represent. See I Aplt. App. 203 (“In any event, if [the Plaintiffs’] claims are common with and typical of those of a nationwide class, they will be entitled to represent that class which will have standing to seek a nationwide injunction.”); Aplee. Br. 1 (The Plaintiffs “do not argue that the two individual plaintiffs have standing to obtain a nationwide injunction.”). The question whether nationwide injunctive relief may issue was more appropriately answered by asking whether a class seeking that relief should be certified.
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class action appear related, they are independent criteria and must be evaluated separately. See Hassine v. Jeffes, 846 F.2d 169, 175-76 (3d Cir. 1988). The question whether an injunction may properly extend to Hollister stores nationwide is answered by asking whether Ms. Farrar may serve as a representative of a class that seeks such relief. All that is necessary to answer this question is an application of Rule 23. See DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th Cir. 2010). We turn to that task next. II. Class Certification
“The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (internal quotation marks omitted). To justify departure from that rule, “a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Id. (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)) (internal quotation marks omitted). It is “Rule 23(a) [that] ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate.” Id. Rule 23(a)’s requirements are quite familiar: (1) the class is so numerous that joinder of all members is impracticable (numerosity); (2) there is a question of law or fact common to the class (commonality); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality); and (4) the representative
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parties will fairly and adequately protect the interests of the class (adequacy). Fed. R. Civ. P. 23(a).
In addition to Rule 23(a), the class proponent must also satisfy through evidentiary proof at least one of the provisions of Rule 23(b). Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013). In this case, the class was certified under Rule 23(b)(2), which requires the court to find that “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.” Fed. R. Civ. P. 23(b)(2).
We review the standard the district court used in making its Rule 23 determination de novo, and we review the merits of that determination for an abuse of discretion. Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213, 1217 (10th Cir. 2013). The district court enjoys “considerable discretion” in this area, and “we defer to the district court’s certification ruling if it applies the proper Rule 23 standard and its decision falls within the bounds of rationally available choices given the facts and law involved.” Devaughn, 594 F.3d at 1194 (internal quotation marks omitted).
A. Class Standing Before we apply Rule 23, we must address Abercrombie’s repeated contention that no one, not even the class, has standing in this case. Specifically, Abercrombie argues that the class lacks standing because the Plaintiffs “never
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established that there are actual, non-hypothetical class members who intend to patronize each of the Hollister stores.” Aplt. Br. 29. That is, the Plaintiffs must offer proof of “actual members of the certified class who have standing” as to the 231 Hollister stores with a porch. Id. at 30.
We have heard this argument before. In DG ex rel. Stricklin v. Devaughn, the defendants argued that “Rule 23(a)’s commonality and typicality requirements demanded that Named Plaintiffs prove all members were [injured] or are actually exposed to an imminent threat of harm as a result of” the defendants’ actions. 594 F.3d at 1197. We rejected this argument, noting that it “conflate[d] the requirements for standing, prospective injunctive relief, and class certification.” Id. “First,” we held, “only named plaintiffs in a class action seeking prospective injunctive relief must demonstrate standing by establishing they are suffering a continuing injury or are under an imminent threat of being injured in the future.” Id. “Second, Rule 23’s certification requirements neither require all class members to suffer harm or threat of immediate harm nor Named Plaintiffs to prove class members have suffered such harm.” Id. at 1198.
Other authorities support the notion that class “standing” does not require individualized proof from class members. See Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006) (noting that Article III standing does “not require that each member of a class submit evidence of personal standing”); PradoSteiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279-80 (11th Cir. 2000) (Court
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must first determine whether “at least one named class representative has Article
III standing,” then “question whether the named plaintiffs have representative
capacity, as defined by Rule 23(a), to assert the rights of others.”). Three Justices
of the Supreme Court favorably quoted this principle from a leading class action
treatise:
“[Unnamed plaintiffs] need not make any individual showing of standing [in order to obtain relief] . . . . Whether or not the named plaintiff who meets individual standing requirements may assert the rights of absent class members is neither a standing issue nor an Article III case or controversy issue but depends rather on meeting the prerequisites of Rule 23 governing class actions.”
Lewis v. Casey, 518 U.S. 343, 395-96 (1996) (Souter, J., concurring) (alterations
in original) (ellipses added) (quoting 1 H. Newberg & A. Conte, Newberg on
Class Actions § 2.07, pp. 2-40 to 2-41 (3d ed. 1992)). The majority seemed to
agree, pointing out that its holding did “not rest upon the application of standing
rules.” See id. at 360 n.7.5
5 Abercrombie’s position could be framed as an argument that nationwide injunctive relief was inappropriate because there was no proof of nationwide injuries necessitating such relief. See Lewis, 518 U.S. at 348-49. In this case, however, we are faced with a nationwide design—“231 Hollister stores that have one elevated entry door with steps in addition to two adjacent, level, fully accessible entry doors.” Aplt. Br. 3. An injunction aimed at those and only those Hollister stores fits perfectly with the claim that those stores violate class members’ rights under the ADA. Contra Lewis, 518 U.S. at 360 (absent showing of systemwide constitutional violation, injunction with systemwide scope was inappropriate).
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Thus, the question whether this class may seek nationwide injunctive relief is not answered by demanding proof of standing from each class member but by application of Rule 23.
B. Numerosity “The burden is upon plaintiffs seeking to represent a class to establish that the class is so numerous as to make joinder impracticable.” Peterson v. Okla. City Hous. Auth., 545 F.2d 1270, 1273 (10th Cir. 1976). “The numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. of the Nw., Inc. v. Equal Emp’t Opportunity Comm’n, 446 U.S. 318, 330 (1980). Plaintiffs must offer “some evidence of established, ascertainable numbers constituting the class,” but there is “no set formula to determine if the class is so numerous that it should be so certified.” Rex v. Owens ex rel. Okla., 585 F.2d 432, 436 (10th Cir. 1978). Abercrombie argues that the Plaintiffs failed to meet the numerosity requirement because “they presented no evidence regarding the size of their proposed class.” Aplt. Br. 50. This court has said, however, that the numerosity requirement is not “a question of numbers.” Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 275 (10th Cir. 1977). Rather, there are a several “factors that enter into the impracticability issue.” Id. Such factors may “includ[e] the nature of the action, the size of the individual claims, and the location of the members of the class or the property that is the subject matter of
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the dispute.” 7A Charles Alan Wright, Arthur R. Miller & Marry Kay Kane, Federal Practice and Procedure § 1762, at 206-07 (3d ed. 2005) (footnote omitted). “[B]ecause it is such a fact-specific inquiry, we grant wide latitude to the district court in making this determination,” and we defer to its determination if the court “made an appropriate judgment call.” Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006).
In this case, the district court had before it several facts that pointed to the existence of a class so numerous that joinder would be impracticable. At the time of the court’s certification decision, it was undisputed that porches were present at nearly 250 Hollister stores in over 40 states. II Aplt. App. 451-58, 688. Moreover, CCDC submitted declarations from five of its members who averred that they shop at malls where Hollister stores are located. I Aplt. App. 111-28. It is undeniable, and subject to judicial notice, that there are millions of Americans with disabilities. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 370 (2001) (citing the congressional finding that “some 43,000,000 Americans have one or more physical or mental disabilities”). It was therefore reasonable to infer that a substantial number of disabled people live in the 40 states where Hollister stores are located; that these people, like CCDC members and many Americans, shop at malls, including the 250 malls with porched Hollisters; and that joining all of these people in one suit would be impracticable. The district court did not abuse its discretion in so finding.
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The dissent suggests that we have weakened the evidentiary burden a class proponent faces on the numerosity element. To be sure, this class was defined only to include those who have suffered a past injury. See Abercrombie & Fitch Co., 2012 WL 1378531, at *1. But the only relief sought by this class was prospective in nature. We agree with the dissent that whether the class was defined only to include those suffering a past injury does not bar certification. As we see it, the timing of the class’s injuries has little effect on the issue of impracticability: identifying, locating, and joining individuals who encounter accessibility discrimination at shopping malls in 40 states would be impracticable, regardless of whether the injury occurred in the past, is ongoing, or will occur in the future. See Penderson v. La. State Univ., 213 F.3d 858, 868 n.11 (5th Cir. 2000) (“‘[J]oinder of unknown individuals is certainly impracticable,’” and “the fact that the class includes unknown, unnamed future members also weighs in favor of certification.”) (first quoting Jack v. Am. Linen Supply Co., 498 F.2d 122, 124 (5th Cir. 1974)). Overturing the district court’s class certification determinations would be substituting our discretion for that of the district court—something we are not empowered to do.
C. Commonality, Typicality, and Adequacy Abercrombie argues that the Plaintiffs failed to meet Rule 23(a)’s remaining requirements—commonality, typicality, and adequacy. Aplt. Br. 5152. Because these requirements “tend to merge,” Wal-Mart, 131 S. Ct. at 2551
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n.5, and because Abercrombie does not address them separately, we address them together.
First, Abercrombie argues that tester plaintiffs cannot assert claims common to or typical of a class of bona fide patrons. See Aplt. Br. 51-52. This argument lacks merit. As mentioned, a plaintiff’s status as tester is irrelevant in determining whether she has suffered an injury in fact under Title III of the ADA. To maintain a class action, a “class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” WalMart, 131 S. Ct. at 2550 (internal quotation marks omitted). The interest asserted here is the same—the right to be free from disability discrimination in a place of public accommodation—as is the alleged injury—denial of that right by porches at Hollister stores.
Elsewhere, Abercrombie again raises the specter of standing and argues that, because Ms. Farrar does not intend to visit every Hollister store with a porch, she lacks standing to obtain a nationwide injunction, and her status as class representative does not cure her lack of standing. Aplt. Br. 25. This argument conflates standing and the ability to represent a class under Rule 23. What Abercrombie challenges is whether Ms. Farrar presents “questions of law or fact common to the class” and a claim “typical of” the class when she has only visited one of the many stores against which the class seeks relief. See Fed. R. Civ. P. 23(a).
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The commonality and typicality requirements of Rule 23(a) do not require that every member of the class share a fact situation identical to that of the named plaintiff. Devaughn, 594 F.3d at 1195; see also Realmonte v. Reeves, 169 F.3d 1280, 1285 (10th Cir. 1999). “[D]iffering fact situations of class members do not defeat typicality under Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory.” Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988). The class’s “common contention ‘must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’” XTO Energy, 725 F.3d at 1218 (quoting Wal-Mart, 131 S. Ct. at 2551).
Given this authority, it is untenable to suggest that Ms. Farrar cannot represent a class unless she shares a factually identical claim with each class member—that she visit every Hollister store that the class claims violates the ADA. Her claim against the Park Meadows Hollister is “common to” the claims of the class because it raises a common question of law—whether Hollister stores’ porched entrances violate the ADA.6 Her claim is “typical of” the class’s even
6 Before the district court, Abercrombie argued that class certification was inappropriate because Hollister stores utilize varying designs in their porch layout. II Aplt. App. 690, 692. On appeal, Abercrombie does not raise this issue, and we are satisfied that the porches are sufficiently similar as to pose a common question of law.
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though she has not visited the remaining 230 stores. These claims are based on the same legal and remedial theory—that Title III of the ADA mandates injunctive relief against the porches.
These claims are capable of classwide resolution. In this regard, it is telling that Abercrombie does not challenge the district court’s decision to certify the class under Rule 23(b)(2), i.e., that Abercrombie “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole.” II Aplt. App. 695 (quoting Fed. R. Civ. P. 23(b)(2)) (emphasis added). The district court did not abuse its discretion in finding the requirements of Rule 23(a) and (b)(2) met, and it appropriately certified the class. We now turn to the merits of the class’s ADA claim. III. ADA Violation
In 1990, Congress passed the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title III of the ADA “prohibits discrimination against the disabled in the full and equal enjoyment of public accommodations.” Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005). Clothing stores, like Hollister, are public accommodations. 42 U.S.C. § 12181(7)(E). Title III provides 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
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accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. Id. § 12182(a). After the ADA, all “new construction” of and alterations to public accommodations must be “accessible.” Id. § 12183(a)(1), (2). That is, discrimination under § 12182(a) includes “a failure to design and construct facilities . . . that are readily accessible to and usable by individuals with disabilities.” Id. § 12183(a)(1). There are statutory exemptions, e.g. id. §§ 12182(b)(1)(A)(iii), 12183(a)(1), but none of these apply here. Congress authorized the Attorney General to promulgate regulations implementing the directives of Title III. Id. § 12186(b). Within a year of the ADA’s enactment, the DOJ issued regulations based on ADA Accessibility Guidelines published by the Architectural and Transportation Barriers Compliance Board. 28 C.F.R. pt. 36. These guidelines now appear in Appendix D to 28 C.F.R. part 36, “1991 Standards for Accessible Design,” or simply the “1991 Standards,” id. § 36.104. In 2010, the DOJ revised its ADA regulations. Without abrogating the 1991 Standards, the DOJ promulgated new regulations—the “2010 Standards”—that adopted newer ADA Accessibility Guidelines. See id. The 2010 Standards appear in Appendices B and D to 36 C.F.R. part 1191, and also include the requirements of subpart D of 28 C.F.R. part 36. Id. We refer to the 1991 and 2010 Standards generally as the “Design Standards.”
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The Design Standards apply in phases: Public accommodations that were newly constructed or altered after January 26, 1993, but before September 15, 2010, need only comply with the 1991 Standards. 28 C.F.R. § 36.406(a) app. Those newly constructed or altered between September 15, 2010, and March 15, 2012, have the choice of complying with either the 1991 or 2010 Standards. Id. And those newly constructed or altered after March 15, 2012, must comply with the 2010 Standards. Id. There are exceptions: Any public accommodation that is required to comply with the 1991 Standards, yet does not so comply, must “be made accessible in accordance with the 2010 Standards.” Id. § 36.406(a)(5)(ii). Additionally, for public accommodations subject to the 1991 Standards,
If the 2010 Standards reduce the technical requirements or the number of required accessible elements below the number required by the 1991 Standards, the technical requirements or the number of accessible elements in a facility subject to this part may be reduced in accordance with the requirements of the 2010 Standards. Id. § 36.211(c). This regulatory framework sets the stage: Because the Hollister stores at issue were constructed after January 26, 1993, but before September 15, 2010, Aplee. Br. 44, they must comply with the 1991 Standards. To the extent the stores do not comply with the 1991 Standards, they must be brought into compliance with the 2010 Standards. And to the extent the 2010 Standards “reduce the technical requirements” of the 1991 Standards, Hollister stores are
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deemed to comply with the Design Standards so long as they meet the lower requirements of the 2010 Standards.
The district court held that the porch at Hollister stores violates Title III of the ADA in three ways. First, the court held that, regardless of any compliance with the Design Standards, Abercrombie violated the “broad statutory requirements” of the ADA. Abercrombie & Fitch Co., 835 F. Supp. 2d at 1082. Specifically, the raised porch violated the “overarching aims” of the ADA by providing a “different or separate” accommodation that was not “in the most integrated setting.” Id. at 1082-83 (quoting 42 U.S.C. § 12182(b)(1)(A)(iii), (B)). Second, the court held that the porch was a “space” under the Design Standards, and because Abercrombie made that space “available to individuals who do not require wheelchairs for mobility, [it] must comply with regulations governing circulation paths and accessible routes to accessible spaces.” Abercrombie & Fitch Co., 957 F. Supp. 2d at 1281. Finally, as the porch was also an “entrance” under the Design Standards, the court held that the porch violated the 1991 Standard stating that the entrance used by the “majority of people” must be accessible. Id. at 1279; see also Abercrombie & Fitch Co., 835 F. Supp. 2d at 1081-82.
We review a district court’s interpretation of statutes and regulations de novo. United States v. Davis, 339 F.3d 1223, 1226 (10th Cir. 2003). We review the district court’s summary judgment decisions do novo, applying the same
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standard as the district court. Ribeau v. Katt, 681 F.3d 1190, 1194 (10th Cir. 2012). Because the district court held that the porches violate the ADA on three independent grounds, we only need to find one supportable to affirm, but we must find all wanting to reverse. We analyze each in turn.
A. Statutory ADA Violations Abercrombie argues that the district court erred by holding that a facility may violate the ADA even if it complies with the regulations regarding accessible design. Aplt. Br. 32-34, 47. It argues that no court has ever found a Title III violation based on a public accommodation’s design in the absence of a violation of the 1991 or 2010 Standards. Id. at 33. The Plaintiffs counter that whether the porch violates the broad statutory guarantees of the ADA does not depend on the porch’s design but rather Abercrombie’s use of that design. Aplee. Br. 53, 57-59. The United States, as amicus, sums up this “use” argument:
The problem is not that wheelchair users cannot enter the store and access defendants’ merchandise. Rather, it is that defendants exclude them from a part of the store that defendants themselves have made a part of the shopping experience. Having chosen to imbue the porch with such significance, the defendants cannot, as here, exclude individuals with disabilities from it and consign them to a wholly different experience. U.S. Br. 14. Because Abercrombie “uses” its porches as the central feature of the “Hollister experience,” this argument goes, it denies disabled customers the full and equal enjoyment of that experience in violation of 42 U.S.C. § 12182(a). See
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Aplee. Br. 58. There is a significant flaw in the Plaintiffs’ argument. Apart from its
existence (a byproduct of its design and construction) Abercrombie does not “use” the porch at all. It is the porch’s design (as a two-stepped, elevated structure) that denies disabled persons access to the store through the center entrance; the Plaintiffs do not point to any distinct policy or practice of Abercrombie’s that can be called a discriminatory “use” of that structure. See Aplee. Br. 5-6 (“Because the Raised Porch Entrance is inaccessible to shoppers who use wheelchairs, those shoppers must use doors at the mall level that are located to the side . . . .”); id. at 47 (The porches “were constructed in violation” of the ADA.); id. at 50 (The porches violated the ADA “when built.”). Even the United States cannot keep this “use” argument straight: It first asserts that the “complaint is not the existence of an inaccessible entranceway but its idiosyncratic use as an integral part of the shopping experience.” U.S. Br. 12. It then does an about-face and states that the “claim here is that the defendants’ unnecessarily discriminatory design—which serves no functional purpose—makes wheelchair users feel unwelcome and excluded.” Id. at 17-18 (emphasis added). The fact that the Plaintiffs’ challenge the porch as it was built, calling it a discriminatory design, leads us to conclude that we are dealing with the design of the porch and the exclusive effect of that design. The sources the Plaintiffs cite bear out that the Design Standards are the appropriate measure of ADA liability
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in this case. In Antoninetti v. Chipotle Mexican Grill, Inc., the Ninth Circuit held that
service counters at Chipotle restaurants violated the ADA. 643 F.3d 1165, 1174 (9th Cir. 2010). The case turned on the Design Standards, which require “equivalent facilitation” if counters do not meet certain height requirements. Id. at 1173 (quoting 1991 Standard 7.2(2)(iii)). The court held that Chipotle’s “policy” of showing disabled patrons samples of food and preparing food in seating areas was not “equivalent facilitation” because it denied disabled customers the full “Chipotle experience.” Id. at 1174. Chipotle’s “service or policy” violated the ADA, not because of a statutory guarantee of equal experiences, but because “it did not comply with the Guidelines.” Id.
In Fortyune v. Am. Multi-Cinema, Inc., the Ninth Circuit considered a movie theater’s “policy concerning the use of wheelchair companion seats.” 364 F.3d 1075, 1078 (9th Cir. 2004). The court noted that the Design Standards were irrelevant because, unlike “cases that involve the design of a public accommodation under the ADA,” the case against the theater “concern[ed] a public accommodation’s policy regarding the use of that design (e.g., the use and availability of a companion seat).” Id. at 1085. The court held that the plaintiff established an ADA claim because the theater “employed a discriminatory policy or practice.” Id. (citing 42 U.S.C. § 12182(a), (b)(2)(A)(ii)).
The Design Standards are also instructive. The purpose of the standards is 29

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“to effectuate title III of the Americans with Disabilities Act.” 28 C.F.R. pt. 36,
app. C (guidance to 28 C.F.R. § 36.101). A public accommodation that “complies
with these guidelines” is deemed “accessible.” 1991 Standard 3.5. The
commentary provides that
A private entity that renders an “accessible” building inaccessible in its operation, through policies or practices, may be in violation of [42 U.S.C. § 12182]. For example, a private entity can render an entrance to a facility inaccessible by keeping an accessible entrance open only during certain hours (whereas the facility is available to others for a greater length of time). A facility could similarly be rendered inaccessible if a person with disabilities is significantly limited in her or his choice of a range of accommodations.
28 C.F.R. pt. 36, app. C, at 914 (guidance to 28 C.F.R. § 36.401) (emphasis
added).
Unlike the case in Fortyune, we are not dealing with a public
accommodation’s use of a design (e.g., a distinct policy or practice concerning to
whom an accommodation is available, when an accommodation is available, or
what choice of accommodations is available), but rather the design itself (i.e., the
form and shape of a structure that render it inaccessible). See U.S. Br. 17 (“[T]he
claim here is that the defendant[s] [adopted an] unnecessarily discriminatory
design.”). And Antoninetti counsels that, even when dealing with a “service or
policy,” Design Standards specifically addressing an issue are a better benchmark
than more general prohibitions found in the statute itself. See Antoninetti, 643
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F.3d at 1174; see also United States v. Hoyts Cinemas Corp., 380 F.3d 558, 566 (1st Cir. 2004) (“[I]t makes more sense to focus upon a somewhat uncertain regulation directed to the very problem at hand rather than an even vaguer set of statutory provisions framed in more general terms.”).
By their own terms, the Design Standards provide the necessary guidance required to build an “accessible” structure. The ADA itself makes this clear: § 12183(a)(1) requires new construction to be “readily accessible” except where it is “structurally impracticable to meet the requirements of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this subchapter.” 42 U.S.C. § 12183(a)(1) (emphasis added). In turn, the regulations assure that a facility is “accessible” if it “complies with these guidelines.” 1991 Standard 3.5. Of course, if an entity constructs an “accessible” facility, but takes affirmative steps to bar disabled persons from enjoying it, then it has violated the ADA’s prohibition of providing a separate benefit “on the basis of a disability.” See 42 U.S.C. § 12182(b)(1)(A)(iii). But that is not the case here. Abercrombie built porches that, as the Plaintiffs claim, were “inaccessible” from their inception. See Aplee. Br. 50. Such a claim must be evaluated through the lens of the Design Standards; were it otherwise, an entity’s decision to follow the standards and build an “accessible” facility would have little meaning. See United States v. Nat’l Amusements, Inc., 180 F. Supp. 2d 251, 258 (D. Mass 2001) (To hold that compliance with the standards is not sufficient to satisfy
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sections 12182 and 12183 of the ADA “would render compliance with these regulations meaningless, because a fully compliant structure would always be subject to a claim under ADA § [12182].”). The porch’s design—and its secondary exclusive effect—must be evaluated solely under the Design Standards. The district court erred by imposing liability on Abercrombie’s design decision based on the “overarching aims” of the ADA.
The dissent agrees with our major premise, that “we must look to the Design Standards to determine whether a defendant has discriminated in the design, construction, or alteration of a facility,” but disagrees with our conclusion that Abercrombie did not engage in a secondary discriminatory “use” of that design. The dissent posits that Abercrombie “uses” the porch as a “branding tool, display area, and customer lounge.” However, none of these “uses” are what deny disabled people access to the porch—it is the porch itself that effects that alleged injury. In fact, the dissent points out that Abercrombie has an alternative design for the porch, one that incorporates the “same surf-shack motif” but at “ground level.” By all indications, Abercrombie “uses” this design in the same manner as its stepped porches—as a “branding tool, display area, and customer lounge.” This “use” is not discriminatory in one instance and non-discriminatory in the other—it is the design that differs between the two porch layouts, and that must be the sole source of accessibility discrimination. The Design Standards specifically address that issue.
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B. Design Standard Requirements for “Spaces”
We now turn to the Design Standards. Abercrombie argues that the district
court erred by holding that the porch is a “space” required to be accessible under
the Design Standards. Aplt. Br. 44. After holding the porch to be a “space,” the
district court noted that “if nondisabled customers can get to a space, customers
who use wheelchairs have to be able to get to that space as well.” Abercrombie &
Fitch Co., 957 F. Supp. 2d at 1281.
The 1991 and 2010 Standards contain identical definitions of “entrance”
and “space”:
Entrance. Any access point to a building or portion of a building or facility used for the purpose of entering. An entrance includes the approach walk, the vertical access leading to the entrance platform, the entrance platform itself, vestibules if provided, the entry door(s) or gate(s), and the hardware of the entry door(s) or gate(s).
. . .
Space. A definable area, e.g., room, toilet room, hall, assembly area, entrance, storage room, alcove, courtyard, or lobby.
1991 Standard 3.5; see also 2010 Standard 106.5. The 1991 Standards define
“Accessible Space” as a “[s]pace that complies with these guidelines.” 1991
Standard 3.5; see also 2010 Standard 106.5 (defining “Accessible” as “[a] site,
building, facility or portion thereof that complies with this part.”).
As we see it, whether the porch is a “space” is not the issue—given the
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definition of “space” as any “definable area,” it is hard to envision what is not a “space.” Rather, the issue is whether the regulations in fact require that all “spaces” be accessible, as the Plaintiffs contend. Aplee. Br. 45-46; U.S. Br. 11. Because the 1991 Standards distinguish between a “space” and an “accessible space,” it seems that the regulations clearly anticipated that not all “spaces” would be accessible.
The Plaintiffs take the use of “space” in the Design Standards to extremes. Their starting point is 1991 Standard 4.1.1. Aplee. Br. 46. This standard provides that “[a]ll areas of newly designed or newly constructed buildings and facilities required to be accessible by 4.1.2 and 4.1.3 . . . shall comply with these guidelines.” 1991 Standard 4.1.1(1) (emphasis added). Contrary to the Plaintiffs’ suggestion, Aplee. Br. 45-46, this standard does not say that “all areas” must be accessible, but rather that areas must be accessible when other standards require accessibility. So we must keep looking. Turning to the first standard listed, 4.1.2 provides that an accessible route “shall connect accessible buildings, accessible facilities, accessible elements, and accessible spaces that are on the same site.” 1991 Standard 4.1.2(2) (emphasis added). Similarly, 4.1.3 requires an accessible route connecting all “accessible building or facility entrances with all accessible spaces and elements within a building or facility.” 1991 Standards 4.1.3(1) (emphasis added). By their plain text, these standards do not require “spaces” to be accessible; rather, they assume that the mentioned space is already an
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“accessible space,” i.e., that another standard requires it to “compl[y] with these guidelines.” 1991 Standard 3.5.
Throughout the Design Standards, the term “space” is seldom used apart from the modifier “accessible.” See, e.g., 1991 Standard 4.3.2(2) (“At least one accessible route shall connect accessible . . . spaces.”); id. 4.3.10 (“Accessible routes serving any accessible spaces”); id. 4.5.1 (“Ground and floor surfaces along accessible routes and in accessible rooms and spaces”); id. 4.14.1 (“Entrances required to be accessible by 4.1 shall . . . be connected by an accessible route to all accessible spaces.”). The term “accessible space” is a placeholder, used throughout the standards to denote compliance with other standards regulating areas that fall under the expansive definition of “space” (e.g., those for toilet rooms (4.22), assembly areas (4.33), entrances (4.14), and storage rooms (4.25)).
Simply put, the Plaintiffs cannot point to any standard stating that every “space” shall be an “accessible space.” The standards clearly indicate when something that qualifies as a “space” must be accessible, e.g., by stating that certain “entrances . . . must be accessible.” 1991 Standard 4.1.3(8)(a)(i). But there is no similar requirement for “spaces” generally. To defer to the DOJ’s position—the “Standards guarantee people with disabilities physical access to spaces,” U.S. Br. 14—“would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” Christensen v.
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Harris Cnty., 529 U.S. 576, 588 (2000). The standards are not ambiguous: the
expansive definition of “space” is not an independent accessibility requirement.
It was error for the district court to require that the porch be accessible because it
is simply a “space.”7
The dissent reaches the opposite conclusion. Our principal disagreement
concerns whether the standards require “all areas” or “spaces” to be accessible
outright unless expressly exempted. As discussed, this expansive reading is
untenable given the standards’ repeated reference to “accessible spaces” and the
specific standards regulating those areas that fall under the definition of “space.”
See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) (“[I]t is a
commonplace of statutory construction that the specific governs the general.”).
Even so, the idea that the porch is a “lobby” or “customer lounge” is a weak one,
as the porch is not a destination in itself but a means of passage into the store.
7 It was also error for the district court to impose accessibility requirements on the porch as a “space” because it contained “more than one use.” See Abercrombie & Fitch Co., 957 F. Supp. 2d at 1281. The district court apparently thought the porch was used as an “accessible space” because Abercrombie made it “available to individuals who do not require wheelchairs for mobility.” Id. A space is not an “accessible space” because it can be accessed by nondisabled persons; rather, it is an “accessible space” only if it “complies with [the] guidelines” for disabled access. 1991 Standard 3.5. The “use” envisioned by the standards refers to those “use[s] covered by a special application section,” e.g., “restaurants and cafeterias, medical care facilities, business and mercantile, libraries, accessible transient lodging, and transportation facilities.” 1991 Standard 4.1.1(2); see also 2010 Standard 201.2 (requiring multi-use spaces to comply with “the applicable requirements” for each use). The district court made no finding that the porch contained any of these special uses.
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The standards provide no safety if an entity complies with the guidelines plainly
regulating a contemplated feature (e.g., an “access point to a building or portion
of a building or facility used for the purpose of entering,” i.e., an “entrance,”
1991 Standard 3.5) only later to be told that the feature is also a “space” that must
be accessible unless fitting into a limited exemption. That is not the thrust of the
highly detailed ADA regulations.
C. Entrance Standards: “Majority of People” Requirement
Abercrombie argues that the district court erred by holding that Hollister’s
porches violated Design Standards regulating entrances. Specifically, it argues
the court erred by finding noncompliance with 1991 Standard 4.1.3(8). Aplt. Br.
39. That standard provides that
(a)(i) At least 50% of all public entrances . . . must be accessible. At least one must be a ground floor entrance. Public entrances are any entrances that are not loading or service entrances.
(ii) Accessible entrances must be provided in a number at least equivalent to the number of exists required by the applicable building/fire codes. (This paragraph does not require an increase in the total number of entrances planned for a facility.)
(iii) An accessible entrance must be provided to each tenancy in a facility (for example, individual stores in a strip shopping center).
One entrance may be considered as meeting more than one of the requirements in (a). Where feasible, accessible entrances shall be the entrances used by the majority of people visiting or working in the building.
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1991 Standard 4.1.3(8). The district court held that, despite the fact that at least 50% of Hollister’s
public entrances are accessible, the store violated 1991 Standard 4.1.3(8)(a) because it was “obvious” that a majority of people enter through the inaccessible porch. Abercrombie & Fitch Co., 835 F. Supp. 2d at 1082; see also Abercrombie & Fitch Co., 957 F. Supp. 2d at 1279. Abercrombie raises two arguments: (1) that the 2010 Standards eliminated the “majority of people” requirement, thus releasing Abercrombie from this burden; and (2) even if this requirement is effective, the Plaintiffs offered no evidence of how many people enter Hollister stores through the center porch compared to the two side entrances. Id. at 39. Abercrombie is correct on both points.
As mentioned, the 1991 Standard required, among several other things, that “[a]t least 50% of all public entrances . . . must be accessible.” 1991 Standard 4.1.3(8)(a)(i). In 2010, the DOJ simplified its entrance standards, providing that “at least 60 percent of all public entrances shall [be accessible].” 2010 Standard 206.4.1. The 2010 Standard omits any reference to the 1991 “majority of people” language. In other words, while the 1991 Standard regulated how many and which entrances must be accessible (if feasible), the 2010 Standard simply regulates how many entrances must be accessible. The Plaintiffs’ only argument against this reading is that the DOJ intended the 2010 revision to have the “same
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result” as the 1991 Standard. Aplee. Br. 51 (quoting 28 C.F.R. pt. 36, app B, at 835). However, the “same result” envisioned was the overall level of accessibility, not any continued requirement about which entrances must be accessible. See 28 C.F.R. pt. 36, app B, at 835. We thus agree with Abercrombie that, by abandoning the dual requirements of the 1991 Standard in favor of a straightforward percentage-of-entrances requirement, the 2010 Standard “reduce[d] the technical requirements” of the 1991 Standard. See 28 C.F.R. § 36.211(c). Therefore, Abercrombie need only comply with the simpler method of compliance—that a certain percentage of its public entrances be accessible.8 See 2010 Standard 206.4.1.
To be sure, the new method is simpler. Although the Plaintiffs sought summary judgment that the porch was used by a majority of people visiting or working in the store (and the district court viewed it as apparent), no evidence supports that proposition. We need not decide whether the porch designer’s intentions or actual empirical evidence concerning porch use by visitors or
8 We need not decide whether the percentage is 50% or 60%, as Abercrombie meets either. We will not consider the Plaintiffs’ argument to the contrary, Aplee. Br. 51 n.13, as it is raised for the first time on appeal, see Valdez v. Squier, 676 F.3d 935, 950 (10th Cir. 2012). In any event, their argument—that the porch actually constitutes two entrance “doors”—fails to take into account that the standards regulate the number of “entrances,” see 1991 Standard 4.1.3(8)(a)(i); 2010 Standard 206.4.1, and that one “entrance” may be made up of more than one “entry door(s),” see 1991 Standard 3.5.
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employees would have been necessary to create a triable issue.9 Given three side-
by-side entrances, logic alone will not suffice. The Plaintiffs assert that the porch
was intended to be used by the majority of people. Aplee. Br. 50. Abercrombie
maintains that it is just as likely that the majority of people prefer a more direct
route (all entrances have the same terminus) rather than ascending and descending
the porch. See III Aplt. App. 728. It is an open question, and one which we do
not resolve.10
Accordingly, we hold that each of the district court’s grounds for awarding
the Plaintiffs summary judgment are unsupportable. It was error to impose
liability on the design of Hollister stores based on “overarching aims” of the
ADA. It was also error to impose liability based on the holding that the porch as
9 The regulatory guidance does not mention the “majority of people” provision, see 28 C.F.R. pt. 36, app. C, at 929 (guidance to 4.1.3(8)), nor does the analysis and commentary to the 2010 standards, see 28 C.F.R. pt. 36 app. B, at 822-23 (analysis of “Public Entrances”). No published case has ever imposed ADA liability on a public accommodation for violating the “majority of people” component of 4.1.3(8)(a).
10 The dissent offers that the Plaintiffs presented “deposition testimony, declarations, photographic evidence, and architectural drawings that all support a reasonable inference that a majority of people use the porch entrance.” Responding to a summary judgment motion, Plaintiffs had the burden of providing significantly probative evidence establishing an essential element of their case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Plaintiffs’ summary judgment evidence demonstrates nothing more than the porch’s existence positioned between two nearby doors. We simply do not know about utilization of the various entrances. Regardless, this question is now irrelevant, as we hold that the 2010 Standards effectively eliminated the additional majorityof-people requirement in the 1991 Standards.
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Appellate Case: 13-1377 Document: 01019303233 Date Filed: 09/02/2014 Page: 41 a “space” must be accessible. Finally, it was error to hold that the porch must be accessible because it is the entrance used by a “majority of people.” We AFFIRM the district court’s denial of Abercrombie’s summary judgment motion. We AFFIRM the district court’s certification of the class. However, we REVERSE the district court’s partial grant, and later full grant of summary judgment to the Plaintiffs, and we VACATE the court’s permanent injunction. We REMAND this case for proceedings consistent with this opinion. All pending motions are DENIED.
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No. 13-1377, Colo. Cross-Disability Coalition v. Abercrombie & Fitch McHUGH, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority’s sound analysis and ultimate conclusion that Ms. Farrar has standing under Article III. However, I respectfully dissent from the majority’s conclusion regarding numerosity. As a result, I would hold that the district court abused its discretion in certifying the class. I also respectfully dissent from the court’s conclusion that Abercrombie did not violate Title III of the ADA. I would therefore affirm the injunction as it relates to the Park Meadows store but reverse the class certification order and vacate the injunction as it relates to other Hollister stores. I. Class Certification
I agree with most of the majority’s thoughtful analysis on class certification, including the relationship of standing to class representation. But I part ways on the issue of numerosity. I would hold that at this point in the litigation, the Plaintiffs were required to present more evidence to meet their burden of establishing the numerosity requirement of Rule 23(a) of the Federal Rules of Civil Procedure, with respect to the class as defined.
In my view, the Plaintiffs have failed to establish facts from which a reasonable inference can be drawn as to the number of members of the defined class. Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” While impracticability is not “a question of numbers,”

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Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 275 (10th Cir. 1977), that is not to say that numbers are irrelevant. Indeed, the text of Rule 23(a)(1) indicates that the impracticability of joinder must be due to the class being numerous. See Fed. R. Civ. P. 23(a)(1). As the majority notes, impracticability turns on “[a] variety of factors,” such as “the nature of the action, the size of the individual claims, and the location of the members of the class or the property that is the subject matter of the dispute.” See 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1762, at 206–07 (3d ed. 2005) (footnote omitted). But “[t]he most obvious consideration is the size of the class itself.” Id. at 177. Thus, a proper numerosity analysis should consider how the size of the class affects the practicability of joinder given “the particular circumstances of the case.” See Rex v. Owens ex rel. State of Okl., 585 F.2d 432, 436 (10th Cir. 1978).
In applying this rule, the Tenth Circuit has rejected any “arbitrary limit,” Horn, 555 F.2d at 275, “set formula,” Rex, 585 F.2d at 436, or presumptive numerical threshold. Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006). And proof of “absolute numbers” is unnecessary, at least in the context of injunctive or declaratory relief. Horn, 555 F.2d at 276; see also 7A Wright & Miller, supra, § 1762, at 177–84.
But this caution against a formulaic, rigid approach to impracticability does not excuse the party seeking certification from providing evidence as to the size
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of the particular class that has been defined. Nor does it excuse the district court from considering the impact of the size of the class on other factors in the case as it undertakes its “‘rigorous analysis’” of the practicability of joinder. See Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S. Ct. 2541, 2551 (2011). The requirements of Rule 23(a) are “stringent guidelines,” Rex, 585 F.2d at 435, and “actual, not presumed, conformance with Rule 23(a) remains . . . indispensable.” General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). The composition of a class need not be readily ascertainable in a suit for injunctive or declaratory relief. Shook v. El Paso Cnty., 386 F.3d 963, 972 (10th Cir. 2004); Horn, 555 F.2d at 276 (“[W]here . . . the class is composed of a substantial number, no great need is present to identify each and every one.”). But even for injunctive and declaratory relief, the party seeking certification must produce “some evidence of established, ascertainable numbers constituting the class” “or otherwise establish by reasonable estimate the number of class members who may be involved” “in order to satisfy even the most liberal interpretation of the numerosity requirement.” Rex, 585 F.2d at 436 (emphasis added); William B. Rubenstein, Newberg on Class Actions § 3:13 (5th ed.) (“[A] good-faith estimate of the class size is sufficient when the precise number of class members is not readily ascertainable.”).
In the present case, the class is: people with disabilities who use wheelchairs and who have faced discrimination because of the presence of a
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raised porch at any Hollister store in the two years prior to the filing of the
complaint in this case. See Colo. Cross-Disability Coal. v. Abercrombie & Fitch
Co., No. 09-CV-02757-WYD-KMT, 2012 WL 1378531, at *1 (D. Colo. Apr. 20,
2012) (defining the class at hand). Although the remedy requested in this case is
injunctive relief, it is brought on behalf of a relatively narrow group of class
members. Only those persons using wheelchairs who suffered past discrimination
as a result of the raised porches, and only the subset of that group who were
deterred by the raised porches within the two years immediately preceding the
filing of the complaint in this action. In my view, the Plaintiffs have not offered
any evidence from which even a reasonable estimate of the number of members of this class can be made.1
Furthermore, requiring some evidence of class size is consistent with the
Supreme Court’s characterization of the burden Rule 23(a) places on the
proponent of a class:
Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact,
1 Although meeting the numerosity requirement as I interpret it requires some effort on the part of a proponent of a class, CCDC has demonstrated in other litigation that as a general matter, it is capable of meeting this burden. See Colo. Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 358 (D. Colo. 1999) (finding a potential class that “may include more than 2,000 people” based on census data and survey results provided by CCDC demonstrating that 14.5% of the 200 people who responded fit the class definition).
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etc.
Wal-Mart Stores, 131 S. Ct. at 2551 (emphasis in original); see also Trevizo, 455
F.3d at 1162 (referring to the burden as “a strict burden of proof” (internal
quotation marks omitted)). Thus, “mere speculation as to the number of parties
involved is not sufficient to satisfy Rule 23(a)(1).” 7A Wright & Miller, supra,
§ 1762, at 181–84; accord Rubenstein, supra, § 3:13. Rather than proceeding
based on such speculation, we have required in other contexts that when facts are
established by inferences drawn by the finder of fact, such inferences must be
based on evidence. Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511,
521–22 (10th Cir. 1987). Therefore, “a plaintiff must show enough evidence of
the class’s size to enable the court to make commonsense assumptions regarding
the number of putative class members.” Rubenstein, supra, § 3:13.2
2 In Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270 (10th Cir. 1977), we acknowledged that other courts have stated that “where the relief sought is injunctive and declaratory, even speculative and conclusory representations as to the size of the class are sufficient.” Id. at 275–76 (citing Doe v. Flowers, 364 F. Supp. 953, 954 (N.D.W. Va. 1973) (three-judge panel) (per curiam), aff’d mem., 416 U.S. 922 (1974)). Although the Fourth Circuit has relied on this statement, it has not excused parties from first establishing the existence of the class. See Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 645 (4th Cir. 1975). To the extent Horn approved of the statement that speculative and conclusory representations are sufficient, it was not necessary to the holding in Horn because that case involved a class of specified size. See 555 F.2d at 275–76 (concluding that the district court abused its discretion because it became “stymied by the concept of very large numbers” and ignored other factors relevant to impracticability). Furthermore, relying on speculative and conclusory representations is inconsistent with later Supreme Court and Tenth Circuit precedent. See Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S. Ct. 2541,
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Here, I would conclude that the Plaintiffs did not provide the district court with enough to make commonsense assumptions about the size of the defined class. The majority finds numerosity to be established because “porches were present at nearly 250 Hollister stores in over 40 states,” “CCDC submitted declarations from five of its members who averred that they shop at malls where Hollister stores are located,” and “there are millions of Americans with disabilities.” Maj. Op. 19. The first fact is relevant to “the location of the . . . subject matter of the dispute.” 7A Wright & Miller, supra, § 1762, at 206–07. This fact certainly pertains to the issue of impracticability, but by itself it does nothing to establish the size or even the existence of a class. The second fact—declarations submitted by five CCDC members—is problematic in establishing the size of a class because each of these five members was a named party to the present litigation, presented to the district court as proposed class representatives. I Aplt. App. 148, 158. “[I]f there are no members of the class other than the named representatives, then Rule 23(a)(1) obviously has not been satisfied.” 7A Wright & Miller, supra, § 1762, at 171–72. Although four of the five CCDC members withdrew from the litigation, the declarations do little by themselves to provide a reasonable estimate of the size of the class.3 I would
2551 (2011); DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th Cir. 2010); Rex v. Owens ex rel. State of Okl., 585 F.2d 432, 436 (10th Cir. 1978).
3 The Plaintiffs did not rely on the five declarations to establish numerosity below, nor have they done so on appeal.
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reach the same conclusion even if the record evidence is supplemented on appeal by public census data, of which the Plaintiffs ask us to take judicial notice.
In my view, the relevant numerosity inquiry here is whether reasonable inferences can be drawn from the five declarations in combination with the census data to provide a reasonable estimate of the size of the class. Relying on the census data, the Plaintiffs note that in 2010, “approximately 1.5 percent of the population or 3.6 million people nationwide used wheelchairs for mobility,” and that the percentage of people who use wheelchairs in each state is similar according to the most recent data. Aplee. Br. 39–40. Even if I were to delve deeper into the census data than the Plaintiffs have done in their briefing to this court and estimate the number of people who use wheelchairs in states that have Hollister stores with porches, that number does not provide a reasonable estimate of the number of persons who use wheelchairs and who have faced discrimination because of the presence of a raised porch at any Hollister store during the relevant two-year period. See Colo. Cross-Disability Coal., No. 09-CV-02757-WYD-KMT, 2012 WL 1378531, at *1.4 Simply put, nothing about the raw numbers provides a basis for estimating how many people who use wheelchairs were actually
4 Although no party has raised the issue, I am also troubled by the fact that the class seeking injunctive relief is defined solely in terms of past injury. Such disjunction between the relief sought and the injuries alleged by the class does not present a problem of standing or class certification. Devaughn, 594 F.3d at 1197–98. Rather, it presents a problem of whether the class is entitled to injunctive relief. Lewis v. Casey, 518 U.S. 343, 359–60 & n.7 (1996).
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discriminated against at a Hollister store during the identified two years due to its raised porches. Furthermore, that number cannot be extrapolated because Plaintiffs have provided no evidence that the five CCDC members are indicative of people who use wheelchairs in Colorado and the other states that have Hollister stores with porches. Indeed, in its memorandum in opposition to the motion to certify, Abercrombie pointed to deposition testimony suggesting that at least two of the five CCDC members were sent to Hollister stores to test for compliance. II Aplt. App. 492. Where these CCDC members were recruited to visit Hollister stores, they provide little help in extrapolating the possible number of people who use wheelchairs and who have shopped at Hollister stores in other states.5
Admittedly, we grant the district court “wide latitude” in making the numerosity determination. Trevizo, 455 F.3d at 1162. But we do so “because it is . . . a fact-specific inquiry,” id., and therefore implicates the district court’s discretion to make rational inferences from that evidence. Vallario v. Vandehey, 554 F.3d 1259, 1264 (10th Cir. 2009). But such inferences must be based on evidence. See Sunward Corp., 811 F.2d at 521–22; cf. Rex, 585 F.2d at 436 (stating that party seeking certification must produce “some evidence”). Here, the
5 It is not their status as testers that is problematic in extrapolating the size of the class based on these plaintiffs; rather, it is the fact that they may not have fallen within the definition of the class without having been recruited by CCDC for this litigation. This undermines the reasonableness of using such plaintiffs as statistically representative of the number of people who fall within the class definition in other states.
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Plaintiffs did not provide any evidence of established, ascertainable numbers or otherwise establish by reasonable estimate the number of persons using wheelchairs who have been discriminated against by the presence of Hollister’s raised porches within the relevant two-year period. See Rex, 585 F.2d at 436 (concluding that the district court did not abuse its discretion in refusing to certify a class seeking injunctive and declaratory relief when the plaintiff presented no evidence of the size of the class).
Instead, the Plaintiffs proved a class size of anywhere from five members to 3.6 million members, which does not constitute a reasonable estimate. While commonsense assumptions and reasonable inferences can help narrow that range, the Plaintiffs failed to provide any evidence from which a reasonable estimate of the number of class members may be deduced. This does not meet the admittedly low threshold required for certification of a class seeking injunctive relief. To hold otherwise would eviscerate the numerosity requirement in Rule 23(a) and run contrary to the Supreme Court’s admonition that the proponent of a class must “affirmatively demonstrate his compliance with the Rule.” See Wal-Mart Stores, 131 S. Ct. at 2551. As a result, I would hold the district court’s ruling amounted to a “[m]aterial misapplication of the Rule 23 factors.” See Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213, 1217 (10th Cir. 2013) (concluding that the district court abused its discretion by, among other things, relaxing the burden of proof under Rule 23(a)). I would therefore reverse
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the certification order. II. ADA Violation
Because I would reverse the certification order, I address the merits of the case only as it relates to the Park Meadows store. Unlike the majority, I would hold that Abercrombie violated Title III of the ADA in two respects. First, I would conclude that the porch is a space that is required to be accessible and thus violates the ADA by not being connected to an accessible route. Second, I would conclude that Abercrombie’s use of the porch violates the ADA by denying customers who use wheelchairs the opportunity to participate and instead providing them a separate, unequal, non-integrated benefit.
“Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). “In studying the need for such legislation, Congress found that ‘historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.’” Id. at 674–75 (quoting 42 U.S.C. § 12101(a)(2)). Congress also found that “individuals with disabilities continually encounter various forms of discrimination, including . . . the discriminatory effects of architectural . . . barriers.” 42 U.S.C. § 12101(a)(5). “After thoroughly investigating the problem, Congress concluded that there was a compelling need for a clear and
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comprehensive national mandate to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life.” PGA Tour, 532 U.S. at 675 (internal quotation marks omitted). “In the ADA, Congress provided that broad mandate.” Id. Twelve years after Congress passed the ADA, Abercrombie opened a store in the Park Meadows Mall designed with a distinctive area open to the public but accessible only to ambulatory persons, thereby relegating patrons who use wheelchairs to nonintegrated, second-class areas. I believe the ADA and the regulations promulgated under it prohibit this conduct.
A. Spaces, Entrances, & Routes My disagreement with the majority is simple. As the majority reads the guidelines, spaces in a newly constructed facility need not be accessible unless a specific standard directly requires as much. As I read the guidelines, all spaces in a newly constructed facility must be accessible unless specifically exempted. Both the 1991 and 2010 Design Standards require all non-exempted spaces to be connected by an accessible route. Accessible routes cannot have stairs. I would conclude that the porch at issue here is a non-exempt space that is not on an accessible route and that Abercrombie has therefore violated the ADA by designing and constructing a non-compliant facility.
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a. All spaces are required to comply with the regulations unless otherwise exempted.
The 1991 Design Standards begin with the general requirement that all non-exempt areas must comply with the guidelines:
All areas of newly designed or newly constructed buildings and facilities required to be accessible by 4.1.2 and 4.1.3 and altered portions of existing buildings and facilities required to be accessible by 4.1.6 shall comply with these guidelines, 4.1 through 4.35, unless otherwise provided in this section or as modified in a special application section.
1991 Standard 4.1.1(1); accord 2010 Standards 201.1, 203.1. The phrase “required to be accessible by 4.1.2 and 4.1.3” could be read as modifying either “All areas” or “newly designed or newly constructed buildings and facilities.” If read to modify “All areas,” as the majority does, the rule reads as follows:
All areas . . . required to be accessible by 4.1.2 and 4.1.3 and . . . 4.1.6 shall comply with these guidelines, 4.1 through 4.35, unless otherwise provided in this section or as modified in a special application section.
1991 Standard 4.1.1(1). As the majority notes, the Design Standards define “accessible” as “[d]escrib[ing] a site, building, facility, or portion thereof that complies with these guidelines.” Id. 3.5; accord 2010 Standard 106.5. The majority correctly states that nothing in standards 4.1.2, 4.1.3, and presumably 4.1.6 expressly requires all spaces to comply with the guidelines. Unlike the majority, I am convinced that overarching requirement is present in standard
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4.1.1(1) itself. When the phrase in section 4.1.1(1), “required to be accessible by 4.1.2 and
4.1.3,” is read to modify “newly designed or newly constructed buildings and facilities,” the meaning becomes clear:
All areas of newly designed or newly constructed buildings and facilities . . . shall comply with these guidelines, 4.1 through 4.35, unless otherwise provided in this section or as modified in a special application section.
Id. Under this reading, if a new building is subject to the requirements of 4.1.2 or 4.1.3, then all areas of that building must also comply with the guidelines, unless otherwise provided.6 The propriety of this reading—that all areas must comply unless exempted—is reinforced by the explicit statement in standard 4.1.1 that certain “non-occupiable spaces . . . frequented only by service personnel for repair purposes” are not required to comply with the guidelines. 1991 Standard 4.1.1(5)(b)(ii). If spaces were never required to comply with the guidelines in the first instance, there would be no reason to exempt certain types of spaces.
This reading is also reinforced by the clarification of this provision in the 2010 Design Standards and its elaboration on the list of exceptions. The 2010
6 When the Standards say the areas must comply with the guidelines, that means the areas must be accessible. 1991 Standard 3.5 (Accessible means “a site, building, facility, or portion thereof that complies with these guidelines.”). Compare 4.1.3(19) (requiring assembly areas to comply with 4.33), with 4.33.1 (“Assembly and associated areas required to be accessible by 4.1 shall comply with 4.33”).
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standards remove the confusing language and state, “All areas of newly designed and newly constructed buildings and facilities and altered portions of existing buildings and facilities shall comply with these requirements.” 2010 Standard 201.1 (emphasis added). Thus, the 2010 Design Standards leave no doubt that all areas of newly constructed buildings must comply.7 The new standards further state, “Sites, buildings, facilities, and elements are exempt from these requirements to the extent specified by 203.” Id. 203.1 (emphasis added). Although standard 203.1 does not list “spaces” generally as exempt, the enumerated list of exceptions includes several areas specifically identified as “spaces,” such as “limited access spaces” and “machinery spaces.” See, e.g., 2010 Standards 203.4, 203.5. Again, the exemption of certain types of spaces supports a reading in which all spaces are otherwise subject to the guidelines.
I am convinced this interpretation is the correct reading of the 1991 standards. But at the very least, standard 4.1.1(1) is ambiguous. When a regulation is ambiguous, we must defer to the agency’s interpretation of its own regulations, even in an amicus brief. Auer v. Robbins, 519 U.S. 452, 462 (1997); see also Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000). Ambiguity exists
7 The Department of Justice’s Analysis and Commentary on the 2010 ADA Standards for Accessible Design discusses “selected substantive changes” between the 1991 Design Standards and the 2010 Design Standards. 28 C.F.R. Pt. 36, App. B at 829. The commentary does not address “[e]ditorial changes.” Id. With respect to the amendment reflected in standard 201.1, the commentary is silent.
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when “[n]o statute or regulation squarely addresses” the issue. See Talk Am., Inc. v. Michigan Bell Tel. Co., ___ U.S. ___, 131 S. Ct. 2254, 2260–61 (2011). Therefore, I would defer to the Department of Justice’s interpretation of the Design Standards: all non-exempt areas must comply with the guidelines.
If all “areas” must comply, a “space” must comply. This is because the Design Standards define “space” as a “definable area.” 1991 Standard 3.5 (emphasis added). Thus, when the Design Standards state that all “areas” must comply with the guidelines unless exempted, I would conclude this requires all non-exempt “spaces” to comply. I do not share the majority’s concern about “the expansive definition of ‘space’” in the Design Standards. Maj. Op. 34. Although “definable area” could be read expansively, the enumerated list of spaces places a limit on that definition. “[T]he commonsense canon of noscitur a sociis . . . counsels that a word is given more precise content by the neighboring words with which it is associated.” Freeman v. Quicken Loans, Inc., ___ U.S. ___, 132 S. Ct. 2034, 2042 (2012). Thus, a “space” must not only be a definable area, but it must be a definable area in the same manner as a “room, toilet room, hall, assembly area, entrance, storage room, alcove, courtyard, or lobby.” See 1991 Standard 3.5; accord 2010 Standard 106.5.
The raised porch at issue is a “space.” Indeed, the majority concludes that the porch is an entrance, separate from the two entrances flanking the porch. See Maj. Op. 37-38; see also 1991 Standard 3.5 (defining entrance); accord 2010
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Standard 106.5 (same). As an “entrance,” the porch would expressly fall within the definition of a “space.” But as discussed more fully below, I would conclude that the porch is not just an entrance. It is also an area that is definable in the same sense as a room or lobby. See 1991 Standard 3.5; 2010 Standard 106.5. However, I agree with the majority that concluding the porch is a space does not end the inquiry. We must next determine whether the space is exempt from compliance with the guidelines. I would conclude that it is not. The porch is a non-exempt space that is required to be connected to an accessible route. As described below, it was not connected to an accessible route and, therefore, does not meet either the 1991 or 2010 Design Standards.
b. The porch does not comply with the ADA under the 1991 Design Standards.
To determine whether a space complies with the Design Standards, I would look first to any general exceptions. I would then look to the specific requirements for the type of space involved to determine what compliance entails and whether the specific standards contain any relevant exceptions.
Under the 1991 Design Standards, section 4.1.1 provides a list of spaces and other areas that are exempt from the guidelines:
Accessibility is not required to (I) observation galleries used primarily for security purposes; or (ii) in non-occupiable spaces accessed only by ladders, catwalks, crawl spaces, very narrow passageways, or freight (non-passenger) elevators, and frequented only by service personnel for repair purposes; such spaces include, but are not limited to, elevator pits, elevator penthouses, piping or
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equipment catwalks. 1991 Standard 4.1.1(5)(b).8 In the present case, deposition testimony, photographic evidence, and architectural drawings all establish that the porch is neither an observation gallery used primarily for security purposes nor a non-occupiable space accessed only by ladders, etc., and frequented only by service personnel for repair purposes. Thus, this general exception does not exempt the porch from the requirement that it comply with the regulations and Abercrombie does not argue otherwise.
Nor, in my view, is the porch exempt as an entrance under the 1991 Design Standards. The 1991 Design Standards state, “At least 50% of all public entrances . . . must be accessible.” Id. 4.1.3(8)(a)(I). The negative inference of standard 4.1.3(8) is that half of all public entrances need not comply with the guidelines. However, the standard further provides, “Where feasible, accessible entrances shall be the entrances used by the majority of people visiting or working in the building.” Id. 4.1.3(8)(a).
The majority concludes that no evidence was presented from which the district court could infer that the porch was used by a majority of people visiting or working in the Park Meadows Hollister. I disagree. Unlike the lack of evidence
8 Standard 4.1.1 also contains an exception for structural impracticability. 1991 Standard 4.1.1(5)(a). Abercrombie has not argued that the porch is exempt from compliance on this basis.
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supporting the district court’s inference as to class size, the record contains deposition testimony, declarations, photographic evidence, and architectural drawings that all support a reasonable inference that a majority of people use the porch entrance at the Park Meadows Hollister. The four CCDC members who are no longer named parties in this litigation submitted declarations stating that the side entrances were difficult to find and “looked like shutters . . . indistinguishable from the rest of the shutters on the exterior of the store.” I Aplt. App. 118, 121, 123–24, 126–27. The side entrances have since been modified to make them more visible. III Aplt. App. 734–36. But Ms. Farrar did not see the two side entrances at the Park Meadows Hollister after the modifications took place, id.; II Aplt. App. 462, 657, though she admittedly did not continue to look for accessible entrances after being deterred by the porch, II Aplt. App. 462, 657–59.
The inference that the porch was the entrance used by the majority of visitors is also supported by Abercrombie’s own actions. Indeed, it was not until after this litigation began that Abercrombie directed store managers to unlock the side entrances when opening the store. III Aplt. App. 734. And Abercrombie representatives declared that the porch was designed to draw customers into the store. III Aplt. App. 732–33. Tellingly, Abercrombie submitted a declaration stating that roping off the porch entrance “would be confusing to customers” and
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would cause “immense and unquantifiable loss in sales and revenue.” III Aplt. App. 1071.
In my view, this evidence combined with the photographs and architectural drawings illustrate that the porch is the focal point of the storefront, with trees, decorations, upholstered chairs, mannequins displaying merchandise, and a large marketing image on the back wall. I Aplt. App. 298–302; Aplee. Br. 7. Furthermore, the photographs of the Park Meadows Hollister storefront depict a large pillar blocking one’s view of the side entrance into the “Bettys” section of the store.9 I Aplt. App. 298–302. I would hold that it is a small and imminently reasonable step to infer from this evidence that a majority of people use the porch to enter the Park Meadows Hollister. And because Abercrombie has identified no contrary evidence to support a reasonable inference that a majority of people do not use the porch to enter the store, no genuine dispute of material fact exists on this point.10
Because a majority of people use the porch entrance, the porch entrance was required to be “accessible.” 1991 Standard 4.1.3(8)(a). As an “accessible entrance,” the porch was required to be on an “accessible route”:
9 See photograph attached at the end of this decision as Attachment 1. 10 Although Abercrombie has challenged whether CCDC adequately proved the porch is the entrance used by the majority of customers, it has never suggested or offered any evidence that the porch, in fact, is not the main entrance to the store.
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Entrances required to be accessible by 4.1 shall be part of an accessible route complying with 4.3. . . . They shall also be connected by an accessible route to all accessible spaces or elements within the building or facility. Id. 4.14.1; see also id. 4.1.3(1) (“At least one accessible route complying with 4.3 shall connect accessible building or facility entrances with all accessible spaces and elements within the building or facility.”); id. 4.3.2(2) (“At least one accessible route shall connect accessible buildings, facilities, elements, and spaces that are on the same site.”); id. 4.3.2(3) (“At least one accessible route shall connect accessible building or facility entrances with all accessible spaces and elements and with all accessible dwelling units within the building or facility.”). An “accessible route” is a “continuous unobstructed path connecting all accessible elements and spaces of a building or facility” that “may include corridors, floors, ramps, elevators, lifts, and clear floor space at fixtures.” Id. 3.5. Of particular relevance here, “[a]n accessible route does not include stairs, steps, or escalators.” Id. 4.3.8 (emphases added). Because it was accessible only by stairs, the porch was not connected to an accessible route. Therefore, it violates the 1991 Design Standards. The porch also violates the 1991 Design Standards as a space in other respects. The majority concludes that because the porch is an entrance, the porch need only comply with guidelines relating to entrances. But as I indicated above, the porch is not just an entrance. Abercrombie submitted declarations and
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deposition testimony to the district court characterizing the porch as a “display area.” See III Aplt. App. 738, 968, 971–72. One Abercrombie official explained, “It’s not really an entrance, it’s more of a display area.” III Aplt. App. 968. Another stated that the porch is “used as a visual display analogous to a store window in another retail store.” III Aplt. App. 971–72; see also id. at 738. The record also establishes that the porch is a definable area much like a room or lobby, III Aplt. App. 908–09, which functions as a customer lounge and as a distinct marketing space, designed to draw customers into the store and strengthen the Hollister brand and image. Id. at 732–33.
Where a space has multiple uses, each portion of the space must comply with the requirements applicable to that use. See Caruso v. Blockbuster-Sony Music Entm’t Ctr. at the Waterfront, 193 F.3d 730, 737–38 (3d Cir. 1999) (Alito, J.) (holding that an assembly area was required to be on an accessible route because all “accessible spaces” are required to be on an accessible route, “regardless of whether or not the facility [was] also required to meet the more specific DOJ Standards concerning fixed seating plans” for assembly areas); cf. 1991 Standard 4.1.1(2) (“When a building or facility contains more than one use covered by a special application section, each portion shall comply with the requirements for that use.”);11 Talk Am., 131 S. Ct. at 2265 & n.6 (stating under a
11 The 1991 Design Standards phrase the principle in terms specific to “special application sections.” But the 2010 Design Standards clarify that the
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different regulatory scheme that when telephone wires and cables can be used for different functions, “regulatory treatment can vary depending on [their] use”).
The 1991 Design Standards do not have any provisions directed specifically at display areas or customer lounges. But in each of these ways, the porch is a space—i.e, a definable area in the same manner as a room or lobby. As with nonexempt entrances, all non-exempt spaces are required to be on an accessible route. 1991 Standard 4.1.2(2) (“At least one accessible route complying with 4.3 shall connect accessible buildings, accessible facilities, accessible elements, and accessible spaces that are on the same site.”); id. 4.1.3(1) (“At least one accessible route complying with 4.3 shall connect accessible building or facility entrances with all accessible spaces and elements within the building or facility.”); id. 4.3.2(3) (“At least one accessible route shall connect accessible building or facility entrances with all accessible spaces and elements and with all accessible dwelling units within the building or facility.”).
Having determined that the porch is a space that functions as a display area and customer lounge, and, therefore, is generally covered by the guidelines, I next consider whether it falls within an exception. Some display areas may qualify as a
principle applies generally as well: “Where a site, building, facility, room, or space contains more than one use, each portion shall comply with the applicable requirements for that use.” 2010 Standard 201.2.
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“space” while also being exempted by the exceptions for employee work areas. Standard 4.1.1(3) places limits on the requirements for “[a]reas that are used only as work areas.” Id. 4.1.1(3). But the porch does not qualify as an exempt work area because it is open to customers, see id., and I am aware of no other exception that would exempt this space from compliance with the Design Standards.
In summary, the Design Standards contain an overarching requirement that all areas—including spaces—must comply with the guidelines. In turn, the guidelines require that all non-exempt spaces be on an accessible route. Unlike the majority, I would conclude that the porch is a non-exempt entrance which must comply with the 1991 Design Standards. But even if the majority is correct that the standards governing entrances exempt the porch from the accessible route provisions as an entrance, the accessible route provisions are equally applicable to the porch as a definable area like a room or lobby, which is used as a display area and customer lounge. Thus, I would hold that the porch does not comply with the 1991 Design Standards because it is not on an accessible route.
As the majority explains, any injunctive relief based on the violation of the 1991 standards would require compliance with the 2010 Design Standards. If those newer standards exempt the porch from being on an accessible route, then, as the majority notes, Abercrombie effectively will be deemed to be in compliance. I am convinced that the 2010 Design Standards also require the porch to be on an accessible route as a display area and customer lounge. Thus, even if
23

Appellate Case: 13-1377 Document: 01019303233 Date Filed: 09/02/2014 Page: 65
the porch is an exempt entrance under the 2010 Design Standards, it must be on an accessible route.
c. To be brought into compliance with the 2010 Design Standards, the porch must be on an accessible route.
I agree with the majority that because the majority-use requirement was removed from the 2010 Design Standards, the standards governing entrances no longer require the porch, as an entrance, to be on an accessible route. But the standards governing spaces used for purposes other than entrances have not changed. Therefore, I would hold that the porch must be on an accessible route to be brought into compliance with the 2010 Design Standards.
As a definable area similar to a room or lobby, the porch is a space and is not exempt under any general exceptions. The 2010 Design Standards expanded and elaborated upon the list of exceptions contained in the 1991 Design Standards. Exceptions addressing spaces in the 2010 Design Standards include “[a]reas raised primarily for purposes of security, life safety, or fire safety,” 2010 Standard 203.3; “[s]paces accessed only by ladders, catwalks, crawl spaces, or very narrow passageways,” id. 203.4; “[s]paces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment,” id. 203.5; and certain employee work areas. Id. 203.9. All such spaces “shall not be required to comply with these requirements or to be on an accessible route.” Id.
24

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203 (emphasis added). The porch, which is used as a display area and customer lounge, does not fall into any of these general exceptions.
Nor does any more specific exception exempt the porch from complying with the accessible route requirement in this context. Because the area qualifies as a “space,” as discussed above, it is required to be on an accessible route unless exempted by some other provision. See id. 201.1, 203.1, 206.2.2, 206.2.4. As with the 1991 Design Standards, a space may be exempt as an employee work area, see id. 203.9, but the 2010 Design Standards define an “employee work area” as “[a]ll or any portion of a space used only by employees and used only for work.” Id. 106.5. The porch is not exempted because it is open to customers and is not used only for employee work. Thus, I would hold that the porch is a non-exempt space and must be on an accessible route. Id. 206.2.2, 206.2.4.
To the extent there is any ambiguity in what the regulations require, placing the porch on an accessible route is “consistent with the ADA’s purpose of enabling people with disabilities to share equally in the benefits provided by a public accommodation.” Caruso, 193 F.3d at 733. It is also consistent with the interpretation advanced by the Department of Justice, which is entitled to deference. Auer, 519 U.S. at 462.
Thus, as with the 1991 Design Standards, even if the provisions governing entrances in the 2010 Design Standards exempt the porch from complying with the accessible route provisions as an entrance, the accessible route provisions
25

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apply to the porch as a display area and customer lounge. See 2010 Standard 201.2 (“Where a site, building, facility, room, or space contains more than one use, each portion shall comply with the applicable requirements for that use.”). While the doors at the end of the porch are exempt and thus need not be on an accessible route, the porch itself must be connected to at least one accessible route. More simply, although Abercrombie may design its stores to provide access to the interior of the store through the side doors, it cannot deprive the wheelchair-using public from complete access to the distinct space that is the porch.
B. Denial of Participation, Separate & Unequal Benefit & Integration I agree with the majority that we must look to the Design Standards to determine whether a defendant has discriminated in the design, construction, or alteration of a facility, but that discrimination in the use of a facility is controlled by other regulatory and statutory provisions.12 But nothing prohibits the Plaintiffs from arguing—as they have both below and on appeal—that Abercrombie has discriminated both in terms of design and use of the facility. Abercrombie uses
12 “Use” of a facility may be relevant to determining which design standards apply. In this sense, it is not a defendant’s use of a facility that is discriminatory; rather, the defendant’s use may give rise to an obligation to design the facility in a certain way. But “use” of a facility may also be relevant in that a defendant’s use may itself be discriminatory if the defendant’s (in)actions violate the more general statutory or regulatory provisions of the ADA. See 42 U.S.C. § 12182(b)(1).
26

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the space as a distinct branding tool, display area, and customer lounge that is not accessible to people who use wheelchairs. I would hold that this use qualifies as “discrimination” within the meaning of Title III of the ADA.
Title III of the ADA contains a list of general activities that it defines as discrimination: the denial of an opportunity to participate, 42 U.S.C. §§ 12182(b)(1)(A)(i), 12182(b)(1)(C); the provision of an unequal benefit, id. § 12182(b)(1)(A)(ii); and the provision of a separate benefit, unless doing so is necessary to provide a benefit that is as effective as that provided to others. Id. § 12182(b)(1)(A)(iii).13 Furthermore, the statute requires benefits provided to people with disabilities to be afforded in the most integrated setting appropriate to the needs of the individual. Id. § 12182(b)(1)(B).
I would hold that Abercrombie’s use of the porch violates each of these provisions. As the preceding discussion indicates, I disagree with the majority’s conclusion that “Abercrombie does not ‘use’ the porch at all.” Maj. Op. 27. Abercrombie uses the space as an entrance, customer lounge, and display area, decorated in a fashion calculated to draw customers into the store and strengthen the Hollister brand and image. During the litigation, Abercrombie made much of the fact that the porch was intended as a visual display only, and that the “visual
13 These provisions are limited to discrimination against “clients or customers.” 42 U.S.C. § 12182(b)(1)(A)(iv). I would hold that the Plaintiffs have established at the summary judgment stage that Ms. Farrar is a customer.
27

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sensory experience of the porch is the same for able-bodied customers and customers who use mobility devices.” III Aplt. App. 738, 940–41, 972; see also Aplt. Br. 45–46. Yet when presented with the option of bringing the porch into compliance by closing it off to all customers, Abercrombie submitted a declaration stating that this was the “worst, and least acceptable” of the options presented by the district court because it would “be extremely detrimental to the Company’s carefully crafted branding efforts” and would “cause permanent damage to the Hollister brand.” III Aplt. App. 1071. Abercrombie’s response belies its assertion that the use of the porch as a customer lounge, branding tool, and display area provides merely a visual sensory experience that all customers can enjoy equally, even without access to the porch.
By placing trees, decorations, upholstered chairs, mannequins displaying merchandise, and a large marketing image on the back wall of the porch entrance, Abercrombie has provided a “facility, privilege, advantage, or accommodation” to some of its customers while denying some customers the opportunity to participate on the basis of their disability. 42 U.S.C. § 12182(b)(1)(A)(i).14 The effect is to create a benefit for some customers that is denied to others on the
14 Subsection 12182(b)(1)(A)(i) provides, “It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.”
28

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basis of disability. By requiring customers who are unable to use stairs to enter
the store through entrances that are not adorned or used even remotely like the
porch entrance, Abercrombie has afforded a “facility . . . or accommodation that
is not equal to that afforded to other individuals,” id. § 12182(b)(1)(A)(ii),15 and
that is “different or separate from that provided to other individuals.” Id.
§ 12182(b)(1)(A)(iii).16 Finally, Abercrombie’s use of this exclusive entrance as a
customer lounge, branding tool, and display area, combined with Abercrombie’s
provision of segregated, inferior accessible entrances, violates the ADA’s
mandate to provide facilities and accommodations “in the most integrated setting
appropriate to the needs of the individual.” Id. § 12182(b)(1)(B).17 The integration
15 Subsection 12182(b)(1)(A)(ii) provides, “It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.”
16 Subsection 12182(b)(1)(A)(iii) provides, “It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.”
17 Subsection 12182(b)(1)(B) provides, “Goods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual.”
29

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mandate “prohibit[s] exclusion and segregation of individuals with disabilities.” 28 C.F.R. § 36, App. C, at 901 (agency guidance on Title III’s integration mandate). By excluding customers who use wheelchairs from the porch and requiring them to use the unadorned, inferior side entrances, Abercrombie effectively “relegates persons with disabilities to the status of second-class citizens.” See id. Thus, Abercrombie’s use of the porch violates Title III of the ADA.18
My conclusion that Abercrombie is in violation of the general provisions of the ADA reinforces my conclusion that Abercrombie violated the Design Standards by not connecting the porch to an accessible route. The specific prohibitions in the ADA must be read in light of the general prohibitions. See Caruso, 193 F.3d at 739–40. The general prohibitions make clear that the purpose of the ADA is inclusion of people with disabilities. The porch at the Park Meadows Hollister sends a message of exclusion. Construing the Design Standards in a way that allows that result would undermine the stated purpose of Title III of the ADA.
18 Compliance with the design standards would not have been difficult. In fact, Abercrombie designed some of its stores with the same surf-shack motif, but in an inclusive fashion, by simply constructing the porch at ground level. A picture of a store with that design is attached to this decision as Attachment 2.
30

Appellate Case: 13-1377 Document: 01019303233 Date Filed: 09/02/2014 Page: 72 In light of the foregoing, I would affirm the district court’s entry of
summary judgment in favor of the Plaintiffs, and its entry of an injunction relating to the Park Meadows store.19
19 Because I would hold that Abercrombie violated the ADA, I would also address an aspect of Abercrombie’s appeal unnecessary to the majority’s analysis: namely, whether the district court abused its discretion in fashioning the injunctive relief granted. I would hold that where the district court was required to issue an injunction and tailored that injunction to accommodate many of the concerns raised by Abercrombie, the district court did not abuse its discretion.
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ATTACHMENT 1

Appellate Case: 13-1377 Document: 01019303233 Date Filed: 09/02/2014 Page: 74
ATTACHMENT 2

Appellate Case: 13-1377 Document: 01019303236 Date Filed: 09/02/2014 Page: 1

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
September 02, 2014

Chris Wolpert Chief Deputy Clerk

Mr. Michael Jacob Ball Vorys, Sater, Seymour and Pease LLP 52 East Gay Street Columbus, OH 43215
Mr. Gregory A. Eurich Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202
Mr. Mark A. Knueve Vorys, Sater, Seymour and Pease LLP 52 East Gay Street Columbus, OH 43215
Mr. Joseph Neguse Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202
Mr. Thomas B. Ridgley Vorys, Sater, Seymour and Pease LLP 52 East Gay Street Columbus, OH 43215
RE: 13-1377, CO Cross-Disability Coalition, et al v. Abercrombie & Fitch, et al Dist/Ag docket: 1:09-CV-02757-WYD-KMT
Dear Counsel:
Enclosed is a copy of the opinion of the court issued today in this matter. The court has entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.
Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 days after entry of judgment. Please note, however, that if the appeal is a civil case in

Appellate Case: 13-1377 Document: 01019303236 Date Filed: 09/02/2014 Page: 2 which the United States or its officer or agency is a party, any petition for rehearing must be filed within 45 days after entry of judgment. Parties should consult both the Federal Rules and local rules of this court with regard to applicable standards and requirements. In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is permitted unless the court enters an order requiring a response. If requesting rehearing en banc, the requesting party must file 12 paper copies with the clerk, in addition to satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, and 10th Cir. R. 35 and 40 for further information governing petitions for rehearing.
Please contact this office if you have questions.
Sincerely,

cc: Hillary Benham-Baker Julia Campins Timothy Patrick Fox Mark L. Gross Bill Lann Lee Andrew C Montoya Amy Farr Robertson Maria Michelle Uzeta Kevin W. Williams
EAS/jm

Elisabeth A. Shumaker Clerk of the Court

2

 
 Appellate Case: 13-1377 Document: 01019200243 Date Filed: 02/10/2014 Page: 1
No. 13-1377
IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ________________________
COLORADO CROSS-DISABILITY COALITION, et al.,
Plaintiff-Appellees
v.
ABERCROMBIE & FITCH CO., et al.,
Defendant-Appellants _______________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO DISTRICT COURT NO. 09-cv-02757 (HON. WILEY Y. DANIEL) _______________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PLAINTIFFS-APPELLEES _______________________
JOCELYN SAMUELS Acting Assistant Attorney General
MARK L. GROSS SASHA SAMBERG-CHAMPION Attorneys Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 307-0714

Appellate Case: 13-1377 Document: 01019200243 Date Filed: 02/10/2014 Page: 2
TABLE OF CONTENTS PAGE
INTEREST OF THE UNITED STATES ..................................................................1 QUESTIONS PRESENTED......................................................................................2 STATEMENT OF THE CASE..................................................................................2 SUMMARY OF ARGUMENT .................................................................................9 ARGUMENT
I TITLE III REQUIRES THAT DEFENDANTS’ FRONT PORCHES BE ACCESSIBLE TO INDIVIDUALS WITH DISABILITIES ...................................................................................11
II PLAINTIFFS HAVE STANDING TO CHALLENGE DEFENDANTS’ TITLE III VIOLATION .........................................19
III THE DISTRICT COURT PROPERLY ENTERED INJUNCTIVE RELIEF .......................................................................24
CONCLUSION ........................................................................................................29 CERTIFICATE OF COMPLIANCE CERTIFICATE OF DIGITAL SUBMISSION CERTIFICATE OF SERVICE

Appellate Case: 13-1377 Document: 01019200243 Date Filed: 02/10/2014 Page: 3

TABLE OF AUTHORITIES

CASES:

PAGE

Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165 (9th Cir. 2010), cert. denied, 131 S. Ct. 2113 (2011).............................. 16-17

Auer v. Robbins, 519 U.S. 452 (1997).....................................................................14

Baughman v. Walt Disney World Co., 685 F.3d 1131 (9th Cir. 2012) ...................16

Bragdon v. Abbott, 524 U.S. 624 (1998) .................................................................15

Chapman v. Pier 1 Imports, 631 F.3d 939 (9th Cir. 2011) (en banc) .....................18

Colorado Cross Disability Coal. v. Hermanson Family Ltd. P’ship, 264 F.3d 999 (10th Cir. 2001) .......................................................................25

Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999) ....................................................20

Disabled in Action of Pa. v. SEPTA, 635 F.3d 87 (3d Cir. 2011) ...........................26

Dudley v. Hannaford Bros. Co., 333 F.2d 299 (1st Cir. 2003) ...............................20

Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004) .........................................................................................17, 19

Garcia v. Board of Educ. of Albuquerque Pub. Schs., 520 F.3d 1116 (10th Cir. 2008) .....................................................................27

Gregory v. Otac, Inc., 247 F. Supp. 2d 764 (D. Md. 2003) ....................................27

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).................................... 21-22

Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013) ............................................................... 21-23

Judy v. Pingue, No. 2:08-cv-859, 2009 U.S. Dist. LEXIS 109990 (S.D. Ohio Nov. 25, 2009).............................................................................23

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Appellate Case: 13-1377 Document: 01019200243 Date Filed: 02/10/2014 Page: 4

CASES (continued):

PAGE

Kreisler v. Second Ave. Diner Corp., 731 F.3d 184 (2d Cir. 2013) ........................19

Lara v. Cinemark USA, Inc., 207 F.3d 783 (5th Cir.), cert. denied, 531 U.S. 944 (2000)..................................................................19

Long v. Coast Resorts, Inc., 267 F.3d 918 (9th Cir. 2001)......................................26

Norkunas v. HPT Cambridge, LLC, No. 11-12183, 2013 U.S. Dist. LEXIS 133396 (D. Mass. Sept. 18, 2013)...........................23

Pickern v. Holiday Quality Foods, 293 F.3d 1133 (9th Cir.), cert. denied, 537 U.S. 1030 (2002)................................................................20

Roberts v. Royal Atl. Corp., 542 F.3d 363 (2d Cir. 2008), cert. denied, 556 U.S. 1104 (2009)................................................................26

Rothberg v. Law Sch. Admission Council, 102 F. App’x 122 (10th Cir. 2004) (unpublished) ........................................26

Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000) ..............................................20

Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004) ................................ 22-23

United States v. National Amusements, Inc., 180 F. Supp. 2d 251 (D. Mass. 2001), aff’d sub nom. United States v. Hoyt Cinemas Corp., 380 F.3d 558 (1st Cir. 2004) .......................................................................................... 18-19

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ...................................... 26-27

STATUTES:

Americans with Disabilities Act (ADA), 42 U.S.C. 12181 et seq. ...........................1 42 U.S.C. 12181(9)........................................................................................24 42 U.S.C. 12182(a) ................................................................................2, 9, 15 42 U.S.C. 12182(b)(1)(A)(iii)....................................................................7, 15 42 U.S.C. 12182(b)(1)(B)..............................................................................15 42 U.S.C. 12182(b)(2)(A)(iv)....................................................................3, 24
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Appellate Case: 13-1377 Document: 01019200243 Date Filed: 02/10/2014 Page: 5

STATUTES (continued):

PAGE

42 U.S.C. 12183(a)(1) .........................................................................3, 16, 24 42 U.S.C. 12186(b)..........................................................................................3 42 U.S.C. 12186(c) ..........................................................................................3 42 U.S.C. 12188(a)(1) ............................................................................passim 42 U.S.C. 12188(a)(2) ...............................................................................4, 24 42 U.S.C. 12188(b)..........................................................................................3

42 U.S.C. 12204(b) ..................................................................................................16

42 U.S.C. 3604(d) ....................................................................................................21

REGULATIONS:

28 C.F.R. Pt. 36, App. A ............................................................................................3

28 C.F.R. 36.213 ................................................................................................ 16-17

28 C.F.R. 36.401 ......................................................................................................24

28 C.F.R. 36.406 ..................................................................................................3, 16

MISCELLANEOUS:

Department of Justice, 2010 ADA Standards for Accessible Design, http://www.ada.gov/regs2010/2010ADAStandards/ 2010ADAStandards_prt.pdf ...................................................................passim

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Appellate Case: 13-1377 Document: 01019200243 Date Filed: 02/10/2014 Page: 6
IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
__________________________
No. 13-1377
COLORADO CROSS-DISABILITY COALITION, et al.,
Plaintiffs-Appellees
v.
ABERCROMBIE & FITCH CO., et al.,
Defendants-Appellants ___________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO DISTRICT COURT NO. 09-CV-02757 (HON. WILEY Y. DANIEL) ___________________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PLAINTIFFS-APPELLEES
___________________________
INTEREST OF THE UNITED STATES
This case concerns proper interpretation of Title III of the Americans with
Disabilities Act (ADA), 42 U.S.C. 12181 et seq., which ensures the accessibility of
public accommodations. The United States has substantial responsibility for the
enforcement of Title III and an interest in proper construction of Title III and its
implementing regulations.

Appellate Case: 13-1377 Document: 01019200243 Date Filed: 02/10/2014 Page: 7
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This case also presents questions regarding private enforcement of Title III, which plays a critical role in ensuring compliance, see 42 U.S.C. 12188(a)(1). The United States has an interest in ensuring that private parties can obtain appropriate relief under Title III.
QUESTIONS PRESENTED The United States addresses the following questions: 1. Whether defendants’ stores, which feature an ornate front porch space that is inaccessible to wheelchairs, violate Title III. 2. Whether plaintiffs, wheelchair users who encountered those porches, have standing to challenge the Title III violation regardless of any motivation to be testers. 3. Whether the district court properly entered injunctive relief.
STATEMENT OF THE CASE 1. Title III of the ADA provides, in relevant part: 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). For “existing facilities” – those that existed before January 26, 1993 – “discrimination” includes a defendant’s “failure to remove architectural barriers”

Appellate Case: 13-1377 Document: 01019200243 Date Filed: 02/10/2014 Page: 8
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where doing so is “readily achievable.” 42 U.S.C. 12182(b)(2)(A)(iv). By contrast, for new construction, i.e., facilities designed and constructed after January 26, 1993, or altered after that date, discrimination includes failure to design, construct, or alter facilities so that they are “readily accessible to and usable by individuals with disabilities.” 42 U.S.C. 12183(a)(1).
The Attorney General has promulgated regulations requiring new construction to comply with specific standards for accessible design. See 42 U.S.C. 12186(b) and (c); 28 C.F.R. 36.406; 28 C.F.R. Pt. 36, App. A. These Standards for Accessible Design contain precise, objective requirements for designing and constructing places of public accommodation. The Standards do not, however, purport to set forth all the ways that idiosyncratic design or use of certain facilities can deprive individuals with disabilities of the “full and equal enjoyment” of those facilities.
For private litigants, Title III provides a right of action that includes only injunctive relief to “any person who is being subjected to discrimination on the basis of disability in violation of this title.” 42 U.S.C. 12188(a)(1).1 Where a court
1 Title III does so by providing the same rights and remedies to private litigants as does Title II of the Civil Rights Act of 1964, under which only injunctive relief is available. The Attorney General may obtain more extensive relief under Title III, including damages and civil penalties. See 42 U.S.C. 12188(b).

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finds that a covered entity failed to build new or altered facilities in compliance with Title III, “injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by” Title III. 42 U.S.C. 12188(a)(2).
2. This case concerns the accessibility of the ornate front porches of Abercrombie & Fitch’s Hollister line of stores, which primarily are located in shopping malls.2 Defendants operate approximately 500 Hollister stores around the country (Appellant’s Appendix (Aplt. App.) 1006), of which approximately 231 currently have the configuration at issue in this case (Aplt. App. 1070). All were built after January 26, 1993 (Aplt. App. 427).
Each Hollister store at issue has a raised front porch. Two steps lead up to the porch from the mall floor. Other stairs then lead down from the porch to the store’s two sides: one containing men’s clothing and one containing women’s clothing. Aplt. App. 296.
The raised porch, according to defendants, is intended to create the feel “of a Southern California surf shack” (Aplt. App. 286) and provide the experience of entering an old-time “beach house” (Aplt. App. 919-920). The porch contains upholstered chairs, pictures, and mannequins displaying merchandise (Aplt.
2 When this lawsuit was filed, plaintiffs alleged numerous other inaccessible aspects of the Hollister store. The defendants made changes in response, and those issues appear to be resolved (Aplt. App. 713-714).

Appellate Case: 13-1377 Document: 01019200243 Date Filed: 02/10/2014 Page: 10
- 5 App. 907). Defendants said the experience of encountering the porch and entering through it is “a significant aspect of the stores’ branding and marketing efforts” (Aplt. App. 336; see Aplt. App. 780-781 (porch is “intended to draw the attention of all shoppers” passing by and is part of a “brand identity designed to draw teen consumers to the store” in lieu of traditional advertising)). Defendants consider the raised porch “more of a design element than an entrance” (Aplt. App. 968).
Shoppers who use wheelchairs cannot access the raised porch, and must instead enter the store through floor-level doors on each side of the porch. These doors are smaller and undecorated, and look more like window shutters (Aplt. App. 864, 913; see Aplt. App. 300 (picture of front porch and side doors), 306 (same), 301 (picture of side door by itself)). Prior to this litigation, they were not always readily identifiable as doors (e.g., Aplt. App. 124, 127, 465). Defendants have made the side doors somewhat more functional, adding operable door handles (the doors previously only could be opened by pushing buttons) and signs indicating which side of the store they lead to (Aplt. App. 715). One side door leads directly into the men’s section, and the other directly into the women’s section, without the “surf shack” experience.
3. Plaintiffs Julie Farrar and Anita Hansen live in the Denver area. Both use wheelchairs (Aplt. App. 111 (Hansen); 461 (Farrar)). They encountered the raised porch at, and were deterred from entering, two Hollister stores in the area (Aplt.

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App. 111, 114 (Hansen); 461-462, 553-554, 659 (Farrar)), one of which later closed (Aplt. App. 714). They intend to return to Hollister stores to shop once the stores are made accessible, and in the meantime they intend to return to test the stores’ accessibility (Aplt. App. 115, 467 (Hansen); 463, 644, 663-664 (Farrar)). Other area wheelchair users who are no longer plaintiffs in this case testified to similar experiences and intentions (Aplt. App. 116-118 (Hernandez); 120-122 (Sirowitz), 123-124, 513-514 (Stapen), 126-127 (Stephens)).
4. Five wheelchair users3 and the Colorado Cross-Disability Coalition (CCDC) sued Abercrombie & Fitch and two subsidiaries, alleging violations of Title III and state anti-discrimination law (Aplt. App. 475-476). Plaintiffs sought class certification and an injunction requiring defendants to modify all stores nationwide with these raised porches (Aplt. App. 489).
a. The district court ruled that plaintiffs had standing with respect to the stores they had visited, because they intended to return once access barriers were remedied (Aplt. App. 361). In a later order, it reaffirmed plaintiffs’ standing, finding that plaintiffs were not merely “testers” but sincerely desired to shop at Hollister, and that they would have standing even if they were “testers” (Aplt. App. 692-693).
3 Four of the original plaintiffs have dropped out of the suit, while Farrar has joined since the filing.

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- 7 b. The district court awarded summary judgment to plaintiffs. It found that Hollister’s design violated a 1991 Title III implementing regulation that required main entrances to be accessible. It rejected defendants’ contention that it was unclear whether most customers used the raised platform: “Looking at the photographs attached to Plaintiff’s motion, it was not even clear that there are doors on either side of the porch.” Aplt. App. 385. In any event, the district court found, compliance with the design standards governing entrances would not excuse violation of Title III’s statutory requirements (Aplt. App. 386). In particular, it observed, Title III bars unnecessarily providing individuals with disabilities with an “accommodation that is different or separate from that provided to other individuals” (Aplt. App. 386 (quoting 42 U.S.C. 12182(b)(1)(A)(iii)). The district court rejected defendants’ “micro view that allows them to comply with the details in the regulations without taking the aims of the ADA to heart and fulfilling its overarching aims” (Aplt. App. 386). Defendants, it concluded, “have unnecessarily created a design for their brand that excludes people using wheelchairs from full enjoyment of the aesthetic for that brand” (Aplt. App. 387). c. The district court certified a nationwide class of individuals with disabilities who were blocked from “full and equal enjoyment” of Hollister stores because of the front porch design (Aplt. App. 685). It granted summary judgment

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- 8 to the class and rejected defendants’ motion to vacate its prior summary judgment ruling. The district court rejected defendants’ argument that plaintiffs must identify an individual with standing at each affected Hollister store. Such a requirement, it held, “would convert the case from a class action to a massive individual action, defeating the efficiencies of Rule 23” (Aplt. App. 1012). After reaffirming that the raised porch violated the Standards governing entrances (Aplt. App. 1013-1018), the district court found that the front porches are public “areas” of the store, and so are required to be accessible whether or not they satisfy the entrances requirements (Aplt. App. 1019-1021).
The district court ruled that it was required to grant plaintiffs injunctive relief, the only relief Title III permits for private litigants, without a showing of irreparable harm or a balancing of equities (Aplt. App. 1021-1024). It later issued a permanent injunction requiring defendants, by January 1, 2017, to make all elevated entrances accessible to wheelchair users (Aplt. App. 1097). The injunction permits the defendants to level, ramp, or close the raised porches (Aplt. App. 1098). It requires defendants to make at least 77 stores accessible each year and to file a progress report semi-annually (Aplt. App. 1098-1099). The district court accepted the defendants’ estimate that compliance would cost $8.5 million over three years, an amount the court found tolerable for a company with annual

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- 9 profits of $237 million. Tr. of Hearing, 8/16/2013, Doc. No. 213, at 30; Aplt. App. 1070-1071.
SUMMARY OF ARGUMENT 1. Once the defendants made entering through the raised porches a focus of their brand identity and their customers’ experience – thus making those porches not merely entrances but distinct and integral areas of their stores – Title III required them to make the porches accessible to wheelchair users. Title III requires that individuals with disabilities receive “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. 12182(a) (emphasis added). The design of defendants’ stores – which are, undoubtedly, public accommodations – denies individuals with disabilities access to what the company itself considers to be a vital part of the shopping experience, depriving them of “full and equal enjoyment” of the stores. The porch is not merely an entrance, but also a “space” that must comply with the accessibility requirements for such spaces found in Title III’s implementing regulations for architectural requirements, the Standards for Accessible Design.4 The defendants err in contending that it is sufficient that the
4 The 2010 version of the Standards is available at http://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards_prt.pdf.

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- 10 porch entrance comply with the Standards specific to entrances. Their arguments depend on a cramped definition of “space” that is contradicted by the Standards’ own definition. While this Court need not reach the question if it properly construes the term “space” in the Standards, defendants also err in contending that, so long as the Standards are satisfied, it is immaterial that their design discriminates against individuals with disabilities in ways not specifically addressed by the Standards.
2. The named plaintiffs have standing to challenge the defendants’ Title III violations with respect to those facilities they have visited in the past and intend to visit in the future. Whether plaintiffs’ visits to defendants’ facilities were motivated at least in part by a desire to be testers is immaterial.
3. The district court correctly found that plaintiffs were entitled to an injunction. Injunctive relief, the only remedy available to private plaintiffs for a Title III violation, is mandatory for a failure to comply with Title III when constructing new facilities. The text and legislative history of Title III make clear that it is no defense to injunctive relief that the defendant will face expense in complying.

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ARGUMENT I
TITLE III REQUIRES THAT DEFENDANTS’ FRONT PORCHES BE ACCESSIBLE TO INDIVIDUALS WITH DISABILITIES
1. Because the front porch is a “space” as well as a means of entering the store, it is insufficient that defendants comply with the 2010 Standards concerning the number of entrances that must be accessible. The porch does not merely serve to permit the journey from outside to inside, the concern addressed by the provisions of the Standards concerning entrances. Rather, by defendants’ own admission, the porch is a distinct space of the store that sets the tone for a consumer’s shopping experience. Not only is the inaccessible entranceway the clear “main” entranceway, but it is decorated, elevated, furnished with a couch or chair(s), and otherwise given far more significance to the shopping “experience” than a mere entranceway.
Accordingly, the porch entrance also must comply with the general accessibility requirements applicable to all areas or spaces not specifically exempted. See 2010 ADA Standard 201.1 (“All areas of newly designed and newly constructed buildings and facilities and altered portions of existing buildings and facilities shall comply with these requirements.”); 2010 ADA Standard 201.2 (where a “space contains more than one use, each portion shall comply with the applicable requirements for that use”). Such requirements include, for example,

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using ramps for floor level changes greater than half an inch, see 2010 ADA Standard 303.4, a requirement that defendants’ stores do not meet. And even assuming the raised porch itself meets all other applicable Standards pertaining to “spaces” – a claim that defendants do not make – defendants failed to provide the required accessible route to it, see 2010 ADA Standard 206.2.4.
It thus is irrelevant whether defendants comply with the 2010 Standards’ requirement that 60 percent of entrances be accessible. See Defendants’ Br. 37-43 (citing 2010 ADA Standard 206.4.1).5 To be sure, a facility with multiple, truly equivalent entranceways can have one of those entranceways be inaccessible; it is not a per se Title III violation to construct an inaccessible entranceway. Here, however, the complaint is not the existence of an inaccessible entranceway but its idiosyncratic use as an integral part of the shopping experience at defendants’ stores.
The defendants suggest, incorrectly, that the Standards govern only very limited types of “areas” or “spaces” – those in which “items are sold or business is transacted.” See Defendants’ Br. 44, 46. They cite no authority for this
5 Defendants argue that one of the 1991 Standards requirements relied on by the district court – the requirement to provide access to the entrance used by the majority of people (1991 ADA Standard 4.1.3(8)(a)) – was not included in the 2010 Standards. Because the raised porch so clearly violates Title III on other grounds, this Court need not address the applicability of that provision.

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proposition. In fact, the Standards define the term “space” more broadly, as “[a] definable area, such as a room, toilet room, hall, assembly area, entrance, storage room, alcove, courtyard, or lobby.” See 2010 ADA Standard 106.5 (emphasis added). Thus, the Standards explicitly provide that an entrance feature like this porch can be a “space.”6
The raised porch here is a “definable area.” It is open to patrons and is experienced by them as a distinct area of the public accommodation, separate from the mall outside and the portions of the store that are inside. Indeed, the porch’s purpose is to provide the experience of leaving the mall environment and entering a very different one, setting the tone for the shopping experience.
In light of the porch’s unique nature and purpose, finding it to be a “space” would not require the same finding about every other entrance. See Defendants’ Br. 45. While the question may be debatable in other cases, here the defendants deliberately made the porch integral to their brand identity and the customer experience. Therefore, the porches at issue here are clearly more than just doorways into a facility.
Nor is there a basis for defendants’ contention that, so long as the porch’s elements are visible from the ground, physical access is not required. Defendants’
6 An identical definition of “space” appears in the 1991 Standards. See 1991 ADA Standard 3.5. The 1991 Standards also impose substantively the same requirements for spaces.

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Br. 45-46. The Standards guarantee people with disabilities physical access to spaces, not merely the ability to look at them. While the “space” requirements do not apply to purely decorative areas not intended for patron access, e.g., window displays, here the display is intended to be experienced from the porch, not from below.7 While we perceive no ambiguity on this point, to the extent there is ambiguity, our construction of the Standards – our own regulation – should receive considerable deference. See Auer v. Robbins, 519 U.S. 452, 461 (1997).
The bottom line is that defendants fail to grapple with the harm caused in suggesting that only the entrance-specific requirements of the Standards apply here. The problem is not that wheelchair users cannot enter the store and access defendants’ merchandise. Rather, it is that defendants exclude them from a part of the store that defendants themselves have made a part of the shopping experience. Having chosen to imbue the porch with such significance, the defendants cannot, as here, exclude individuals with disabilities from it and consign them to a wholly different experience.
7 The Standards exempt from the “space” requirements certain areas that are not meant for general public access or serve functions requiring them to be raised or otherwise inaccessible. See, e.g., 2010 ADA Standards 203.2 (construction sites); 203.3 (areas raised for security or safety purposes, such as observation galleries or lifeguard stands); 203.5 (areas frequented only by service personnel); 203.9 (employee work areas).

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- 15 2. In addition to violating the ADA Standards, defendants’ raised porch fails to satisfy the statutory requirements of Title III. While we believe our argument below gives Title III its most natural reading, to the extent there is ambiguity, our interpretation is entitled to deference and should be upheld if reasonable. See Bragdon v. Abbott, 524 U.S. 624, 646 (1998). a. The defendants do not argue that their raised porch comports with Title III’s plain text. Such an argument would fail. An individual with a disability must be provided “full and equal enjoyment” of the public accommodation, 42 U.S.C. 12182(a). Title III also bans the unnecessary provision to individuals with disabilities of accommodations or services “different or separate from that provided to other individuals.” See 42 U.S.C. 12182(b)(1)(A)(iii). And it requires that public accommodations be provided “in the most integrated setting appropriate to the needs of the individual.” 42 U.S.C. 12182(b)(1)(B). The gratuitous provision of “separate but equal” store experiences – let alone the separate and unequal entrance experiences here – cannot satisfy these requirements. b. The defendants’ argument that compliance with the Standards immunizes them from any Title III claim is meritless. See Defendants’ Br. 33. Because the defendants do, in fact, violate the Standards governing “spaces,” this Court need not reach that argument. In any event, not all of Title III’s statutory mandate has been, or can be, reduced to specific regulatory requirements.

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- 16 Actionable discrimination under Title III “includes,” but is not limited to, designing and constructing new facilities not “readily accessible to and usable by individuals with disabilities.” 42 U.S.C. 12183(a)(1). Implementing regulations, including the Standards, set forth specific requirements for newly constructed facilities to be “readily accessible to and usable.” Ibid.; accord 42 U.S.C. 12204(b) (guidelines shall ensure that buildings are “accessible, in terms of architecture and design”); see also 28 C.F.R. 36.406. That a facility satisfies the Standards, and thus is “readily accessible,” is required to satisfy Title III’s non-discrimination mandate, but in some unusual cases, such as this one, it is not sufficient. The Standards “provide guidance on the application of the statute to specific situations.” 28 C.F.R. 36.213. They are not intended to contemplate every idiosyncratic way that a facility can violate the ADA. In particular, the required provision of “full and equal enjoyment” of public accommodations is not always reducible to compliance with standardized architectural requirements. It requires fact-specific comparison of the experience of individuals with disabilities compared with that of others using the same facility. See, e.g., Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012) (“Public accommodations must start by considering how their facilities are used by non-disabled guests and then take reasonable steps to provide disabled guests with a like experience.”); Antoninetti v. Chipotle Mexican Grill, Inc., 643

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- 17 F.3d 1165, 1174 (9th Cir. 2010) (restaurant deprived customer of the full “Chipotle experience,” which, the court found, included the ability to “see and evaluate the various available foods and decide which or how much of each he wanted” and “watch the food service employee combine those ingredients to form his order”), cert. denied, 131 S. Ct. 2113 (2011). Public accommodations can meet the standardized architectural guidelines for accessibility, yet still fail to provide “full and equal enjoyment.” For example, a movie theater might meet the requirements for design and placement of wheelchair seating but still violate Title III by not permitting companions to sit with those using such seating. See Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1085 (9th Cir. 2004).
To be sure, where the Standards set forth precise requirements for avoiding certain types of discrimination, compliance with them precludes reliance on Title III’s more general non-discrimination requirements with respect to that issue. See 28 C.F.R. 36.213 (“The specific provisions, including the limitations on those provisions, control over the general provisions in circumstances where both specific and general provisions apply.”). Here, for example, the Standards’ requirement that 60 percent of public entrances be accessible precludes a claim that it is per se discriminatory to have one out of three public entrances inaccessible. But the claim here is that the defendants’ unnecessarily discriminatory design – which serves no functional purpose – makes wheelchair users feel unwelcome and

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- 18 excluded. See, e.g., Aplt. App. 555 (“I wouldn’t want to patronize a store that just built a brand-new inaccessible entrance[.] * * * There’s a message there.”); accord Aplt. App. 667. Even if sending such an exclusionary message might not violate the Standards, it violates Title III’s plain language and clear purpose. See Chapman v. Pier 1 Imports, 631 F.3d 939, 945 (9th Cir. 2011) (en banc) (it is “obviously exclusionary conduct” to place “a sign stating that persons with disabilities are unwelcome or an obstacle course leading to a store’s entrance”).
The cases the defendants cite are not to the contrary; rather, they hold that the Standards preclude more generalized claims of discrimination where they speak to the precise discrimination alleged and thus define its scope. For example, in United States v. National Amusements, Inc., 180 F. Supp. 2d 251 (D. Mass. 2001), aff’d sub nom. United States v. Hoyt Cinemas Corp., 380 F.3d 558 (1st Cir. 2004), the United States brought two distinct claims regarding the same features of movie theaters’ design. One alleged a violation of a Standards requirement that wheelchair areas provide “lines of sight comparable to those for members of the general public”; the other alleged, based on the same design, a violation of Title III’s statutory requirements. See id. at 256. The district court found that, because the Standards set forth specific requirements for providing a comparable view to individuals with disabilities, reliance on the statute itself would improperly amend the Standards’ requirements for accomplishing that objective. (The statute,

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however, still barred discrimination not contemplated by the Standards’ line-ofsight requirement, such as refusal to permit wheelchair users to enter. See id. at 262.) The United States did not contest this finding on appeal, see Hoyt Cinemas, 380 F.3d at 565-566. Other cases involving the same theater design requirements are to the same effect. See Fortyune, 364 F.3d at 1084; Lara v. Cinemark USA, Inc., 207 F.3d 783 (5th Cir.), cert. denied, 531 U.S. 944 (2000). Those cases are inapposite here, where the Standards do not address the unusual discrimination alleged – the inaccessibility of an idiosyncratic entrance that is an integral part of the shopping experience.
II PLAINTIFFS HAVE STANDING TO CHALLENGE DEFENDANTS’
TITLE III VIOLATION Defendants contend that plaintiffs lack standing merely because their motivations for initially visiting and later returning to the defendants’ stores may include, in part, a desire to be testers. But Title III provides a private right of action to “any person who is being subjected to discrimination on the basis of disability in violation of” Title III. 42 U.S.C. 12188(a)(1) (emphasis added). The only relevant question here is whether a person is “subjected to discrimination” that violates Title III. Title III confers broad standing to private litigants, “not subject to any of the prudential limitations that apply in other contexts.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 188 (2d Cir. 2013).

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- 20 It suffices that a plaintiff (1) personally encounter features of a public accommodation that violate Title III and (2) make some sort of showing – for example, by expressing intent to return – that he or she would benefit from the injunction sought. See, e.g., Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000). Moreover, Title III provides that an individual with a disability need not make the “futile gesture” of attempting to access a facility known to be inaccessible. 42 U.S.C. 12188(a)(1). A plaintiff, therefore, can establish standing by expressing the intent to return after the facility is made compliant. See, e.g., Dudley v. Hannaford Bros. Co., 333 F.3d 299, 306-307 (1st Cir. 2003); Pickern v. Holiday Quality Foods, 293 F.3d 1133, 1135 (9th Cir.), cert. denied, 537 U.S. 1030 (2002); cf. Davoll v. Webb, 194 F.3d 1116, 1132 (10th Cir. 1999) (employee need not make futile request for accommodation from employer’s unbending policy before suing under Title I of the ADA). Defendants’ assertion that a plaintiff must demonstrate a “non-contingent intention to patronize each store in the future,” see Defendants’ Br. 18 – i.e., that the plaintiff must intend with certainty to patronize the store whether or not it is brought into compliance – finds no support in the case law and is inconsistent with Title III’s “futile gesture” language. Here, both named plaintiffs established standing. They encountered barriers violating Title III and they intend to return, either once those barriers are removed

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- 21 or in order to test defendants’ compliance. Aplt. App. 115, 467 (Hansen); 463 (Farrar). No more is required.
It is immaterial whether plaintiffs’ interest in defendants’ stores stems partly or entirely from desire to be testers who facilitate Title III compliance. See Defendants’ Br. 19-21. Title III guarantees “any person” experiencing discrimination on the basis of disability the right to challenge it. 42 U.S.C. 12188(a)(1). That right “does not depend on the motive behind [the plaintiffs’] attempt to enjoy the facilities.” Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1332 (11th Cir. 2013).
Congress may create the “legal right[]” to be treated in non-discriminatory fashion, “the invasion of which creates standing” even if the plaintiff “fully expect[ed]” to suffer discrimination and not to complete a transaction. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-374 (1982). Havens found that Congress created such a right in 42 U.S.C. 3604(d), which provides in relevant part that it is unlawful discrimination to falsely represent to “any person” because of race or other protected characteristic that any dwelling is unavailable. A tester receiving false information “has suffered injury in precisely the form the statute was intended to guard against,” Havens concluded, and, therefore, has standing. 455 U.S. at 373-374. Title III similarly confers standing upon “any person” experiencing discrimination covered by Title III. Any further requirement that

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such person have particular motivation finds no more support in Title III’s text than in the language at issue in Havens.8
Accordingly, the only circuit to address tester standing under Title III held that those who encounter discriminatory construction have standing, regardless of motives. Houston, 733 F.3d at 1334. While this Court has not addressed tester standing under Title III, it has held that testers may seek similar injunctive relief under Title II of the ADA, which regulates the provision of state and local government services. See Tandy v. City of Wichita, 380 F.3d 1277, 1286-1287 (10th Cir. 2004). It reasoned that Title II’s broadly worded private right of action – which extends to “any person alleging discrimination on the basis of disability” – and the ADA’s far-reaching mandate to “eradicate discrimination” made the statute much like the Fair Housing Act provision at issue in Havens. Id. at 1287. Three plaintiffs, consequently, could challenge the accessibility of bus service based on their stated commitment to test the service several times per year. Id. at 12871289. The only tester plaintiff without standing failed to submit any affidavit
8 In addition to arguing that testers have standing under Title III, plaintiffs argue that their motivations are not solely to be testers. See Plaintiffs’ Br. 15, 17. We take no position on that factual question, which we believe is not legally relevant. Should this Court find that plaintiffs are not testers, it need not address the legal question we brief here, but we ask that it not say anything that suggests that testers do not have standing.

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- 23 regarding his intention to test the service again. Id. at 1289. This case is not materially distinct from Tandy.
Defendants do not explain why plaintiffs’ motivation for visiting facilities should matter; they merely cite to unpersuasive district court cases and a student note that disagrees with their position. See Defendants’ Br. 19-21. In fact, ideological goals may make it more likely that plaintiffs will follow through on their stated commitment to return to defendants’ stores. See Aplt. App. 664-665 (plaintiff will “reward” stores that comply with ADA obligations); accord Houston, 733 F.3d at 1340; Norkunas v. HPT Cambridge, LLC, No. 11-12183, 2013 U.S. Dist. LEXIS 133396, at *15 (D. Mass. Sept. 18, 2013) (collecting cases).
To be sure, there may be times when it seems implausible that a plaintiff (whether “tester” or not) will return to the public accommodation, for example when the plaintiff resides far away and visited the accommodation on a trip. See, e.g., Judy v. Pingue, No. 2:08-cv-859, 2009 U.S. Dist. LEXIS 109990, at *8 (S.D. Ohio Nov. 25, 2009) (plaintiff lived 800 miles from inaccessible restaurant). But that is not this case, where the named plaintiffs can readily return to a store they have visited previously.

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III THE DISTRICT COURT PROPERLY ENTERED INJUNCTIVE RELIEF
Title III provides that, for any failure to construct new facilities in an accessible manner, “injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this title.” 42 U.S.C. 12188(a)(2) (emphasis added). Title III plainly required an injunction here to remedy defendants’ violation.
This remedial scheme comports with Congress’s choice, throughout the ADA, to require only modest changes for most existing facilities while requiring compliance with the new rules, without exception, for new construction. It is always discriminatory to build new facilities in an inaccessible manner unless compliance is “structurally impracticable,” see 42 U.S.C. 12183(a)(1); 28 C.F.R. 36.401(“Full compliance will be considered structurally impracticable only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features”).9 Removing architectural barriers existing prior to the ADA, conversely, is only required where “readily achievable,” 42 U.S.C. 12182(b)(2)(A)(iv), which means “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. 12181(9); see, e.g.,
9 Defendants do not contend that it was structurally impracticable for them to design their porches accessibly, nor would such an argument succeed.

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- 25 Colorado Cross Disability Coal. v. Hermanson Family Ltd. P’ship, 264 F.3d 999, 1007-1008 (10th Cir. 2001).
Congress thus required courts to consider a defendant’s costs in determining whether to order changes to facilities built prior to the ADA, but chose not to make those costs relevant to whether injunctive relief should issue regarding new construction. This policy accomplishes important goals illustrated well by this case. First, it provides a powerful incentive to make new construction accessible from the outset, a task Congress anticipated would be considerably less expensive than remedying a failure to do so later. If defendants could interpose remediation’s costs as a defense to any injunctive remedy for a violation, they could, perversely, immunize even the most blatant Title III violations, which are easy to avoid but which may be expensive to fix later. Here, defendants – years after the ADA’s passage – constructed their stores in a manner that obviously discriminates against wheelchair users. If remedying that Title III violation proves expensive, they have only themselves to blame. Second, having cost not be a defense to the requirement to remedy Title III violations encourages defendants to think creatively about remedying their violations, rather than submitting inflated cost estimates to avoid compliance. Once required to remedy their violation, defendants might well find cheaper ways to do so.

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- 26 Defendants’ brief does not acknowledge Title III’s plain language or the considerable appellate jurisprudence recognizing that Title III requires newly constructed facilities to “be made accessible even if the cost of doing so – financial or otherwise – is high.” See Roberts v. Royal Atl. Corp., 542 F.3d 363, 371 (2d Cir. 2008), cert. denied, 556 U.S. 1104 (2009); accord Disabled in Action of Pa. v. SEPTA, 635 F.3d 87, 96 (3d Cir. 2011). Had the district court declined to issue injunctive relief because of defendants’ costs, as defendants urged, it would have committed reversible error. See Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001). Defendants erroneously rely instead on an unpublished decision, Rothberg v. Law School Admission Council, 102 F. App’x 122 (10th Cir. 2004). See Defendants’ Br. 53-54. Not only is Rothberg not binding precedent, but it concerned the entirely different question of whether preliminary injunctive relief should be granted prior to adjudication of a Title III claim, not permanent relief after a violation is found. Moreover, the allegation in Rothberg – failure to provide testing accommodations – did not involve Title III’s new-construction requirements, and so this Court had no occasion to consider the statutory language discussed above. Defendants also err in relying on Weinberger v. RomeroBarcelo, 456 U.S. 305 (1982). That case holds that, where a statutory scheme provides that “[a]n injunction is not the only means of ensuring compliance,”

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district courts must weigh the equities before granting injunctive relief. Id. at 314. But a different rule applies where, as here, “the purpose and language of the statute” make clear that “only an injunction could vindicate the objectives of the Act.” Ibid.; accord Garcia v. Board of Educ. of Albuquerque Pub. Schs., 520 F.3d 1116, 1127 (10th Cir. 2008) (specific statute at issue can determine extent of district court’s discretion in equity).
The bottom line is that defendant cites no decisions, and we are aware of none, finding that a defendant has violated Title III’s new-construction requirements yet declining to grant permanent injunctive relief to remedy the violation.10 Nor would such a decision be consistent with Title III’s plain language and Congress’s clear purposes.
Defendants assert, incorrectly, that the district court failed to consider their costs in fashioning an injunction that would bring defendants into compliance with Title III. See Defendants’ Br. 55. In fact, the district court – permissibly – did consider defendants’ claimed costs in choosing among different remedial options that would achieve full compliance with the new construction standards. Rather than ordering defendants to immediately bring all stores into compliance, it
10 The passage defendants rely on from Gregory v. Otac, Inc., 247 F. Supp. 2d 764 (D. Md. 2003), Defendants’ Br. 52, is dicta. Gregory found that the alleged violation did not cause plaintiff’s injuries and plaintiff accordingly lacked standing. See 247 F. Supp. 2d at 771-772. The other cases cited by defendant that are not described herein do not involve Title III.

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allowed them three years to do so (Aplt. App. 1097). It gave defendants three options for compliance, one of which (simply closing the raised porches) was unlikely to impose substantial costs (Aplt. App. 1098). And it found that, even if the defendants choose the most expensive option (leveling the porches) and even assuming the validity of the defendants’ estimate that doing so would cost $8.5 million over three years, defendants could absorb such costs. Tr. of Hearing, 8/16/2013, Doc. No. 213, at 30. The district court thus acted well within its discretion, particularly considering the defendants did not below and do not now proffer any alternative remedy that would bring them into full compliance with Title III within a reasonable period of time.

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CONCLUSION
This Court should affirm the district court’s judgment.
Respectfully submitted,
JOCELYN SAMUELS Acting Assistant Attorney General
s/ Sasha Samberg-Champion MARK L. GROSS SASHA SAMBERG-CHAMPION Attorneys
Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 307-0714

Appellate Case: 13-1377 Document: 01019200243 Date Filed: 02/10/2014 Page: 35
CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitations of Federal Rule of Appellate Procedure 32(a)(7)(B) and Federal Rule of Appellate Procedure 29(d), because it contains 6158 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5), and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6), because it has been prepared in a proportionally spaced typeface using Word 2007 in 14-point Times New Roman font.

Date: February 10, 2014

s/ Sasha Samberg-Champion SASHA SAMBERG-CHAMPION Attorney

Appellate Case: 13-1377 Document: 01019200243 Date Filed: 02/10/2014 Page: 36
CERTIFICATE OF DIGITAL SUBMISSION I certify that the electronic version of the foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PLAINTIFFSAPPELLEES, prepared for submission via ECF, complies with all required privacy redactions per Tenth Circuit Rule 25.5, is an exact copy of the paper copies submitted to the Tenth Circuit Court of Appeals, and has been scanned with the most recent version of Trend Micro Office Scan (version 8.0) and is virus-free.

Date: February 10, 2014

s/ Sasha Samberg-Champion SASHA SAMBERG-CHAMPION Attorney

Appellate Case: 13-1377 Document: 01019200243 Date Filed: 02/10/2014 Page: 37
CERTIFICATE OF SERVICE I hereby certify that on February 10, 2014, I electronically filed the foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PLAINTIFFS-APPELLEES with the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by using the appellate CM/ECF system. Seven copies of the same were sent by Federal Express to the Court. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
s/ Sasha Samberg-Champion SASHA SAMBERG-CHAMPION Attorney

 
 UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT _________________________________
COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation, et al.,

FILED United States Court of Appeals
Tenth Circuit
November 14, 2014
Elisabeth A. Shumaker Clerk of Court

Plaintiffs - Appellees,

and

BENJAMIN HERNANDEZ, et al.,

Plaintiffs,

v.

No. 13-1377

ABERCROMBIE & FITCH CO., et al.,

Defendants - Appellants.

------------------------------

UNITED STATES OF AMERICA, et al.,

Amici Curiae. _________________________________

ORDER _________________________________

Before KELLY, TYMKOVICH, and MCHUGH, Circuit Judges. _________________________________

Appellees’ petition for rehearing is denied.

The petition for rehearing en banc was transmitted to all of the judges of the court

who are in regular active service. As no member of the panel and no judge in regular

active service on the court requested that the court be polled, that petition is also denied.

The Motion for Leave to File Brief of Amici Curiae Legal Center for People with Disabilities and Older People, et al., in Support of Plaintiffs-Appellees’ Petition for Rehearing and Rehearing En Banc is granted. The brief shall be filed as of the date of receipt.
Entered for the Court ELISABETH A. SHUMAKER, Clerk
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02757-WYD-KMT
COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation; ANITA HANSEN; and JULIE FARRAR, individually and as class representatives,
Plaintiffs,
v.
ABERCROMBIE & FITCH CO.; ABERCROMBIE & FITCH STORES, INC.; and J.M HOLLISTER LLC, d/b/a HOLLISTER CO.,
Defendants.
ORDER
I. INTRODUCTION
This matter is before me on Plaintiffs’ Motion for Attorneys’ Fees and Costs (ECF
No. 231). Plaintiffs move for their reasonable attorney fees and costs pursuant to the
Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12205. On February 12, 2014, I
held a hearing on the motion. Plaintiffs seek attorney fees in the amount of
$435,708.90 and costs in the amount of $20,342.51, representing amounts incurred
through August 31, 2013.1 For the reasons stated below, Plaintiffs’ motion is granted in
1 I note that at the February 12, 2014 hearing, without providing any advance notice or supporting documentation to the Court or the Defendants, Plaintiffs asserted that they had incurred additional attorney fees since August 13, 2103. Accordingly, I ordered the parties to meet and confer regarding Plaintiffs’ supplemental amount of attorney fees and submit a request to the Court not later than February 28, 2014. On February 20, 2014, the parties submitted a joint statement to the Court indicating that they reached a stipulation that Plaintiffs are entitled to an additional $14,500 in supplemental attorney fees. Based on this filing, I increase the total amount of fees awarded in this Order by $14,500 for attorney fees incurred by Plaintiffs after August 13, 2013.

part and denied in part. Plaintiffs are awarded attorney fees and costs, but I reduce the amount of fees requested by Plaintiffs.
By way of background, I granted summary judgment to Plaintiffs finding that 231 Hollister clothing stores located throughout the United States violated the Americans With Disabilities Act (“ADA”), 42 U.S.C. 12181, et seq.2 On August 20, 2013, I entered a permanent injunction requiring Defendants to remove, ramp, or close off all of the elevated entry doors by January 1, 2017, at a rate of at least 77 stores each year beginning on January 1, 2014. (ECF No. 211). II. ATTORNEY FEES
A. Standard of Review The ADA gives courts discretion to award attorney fees, including costs and litigation expenses, to a prevailing party. See 42 U.S.C.A. § 12205. The ADA, like other civil rights statutes, favors granting attorney fees to a prevailing party as a means to encourage attorneys to police unlawful conduct. The Supreme Court reiterated this policy in Christiansburg Garment Co. v. EEOC, 98 S.Ct. 694 (1978) when it stated that "the plaintiff is the chosen instrument of Congress to vindicate ‘a policy that Congress considered of the highest priority,'" Id. An award of attorney fees to a prevailing party is also an award of fees "against a violator of federal law." Id. Here, it is undisputed that Plaintiffs are the prevailing party and entitled to both attorney fees and costs. Thus, I first turn to the issue of whether the requested fees are reasonable.
2 In numerous prior written orders, I set forth detailed recitations of the facts of this case along with my reasoning and findings. Those orders are incorporated by reference herein.
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B. Reasonableness “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services.” Id. In other words, “[t]o determine the reasonableness of a fee request, a court must begin by calculating the so-called ‘lodestar amount’ of a fee, and a claimant is entitled to the presumption that this lodestar amount reflects a ‘reasonable’ fee.” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) (quotations omitted). “The lodestar calculation is the product of the number of attorney hours ‘reasonably expended’ and a ‘reasonable hourly rate.’” Id. (quotation omitted). “A district court should approach this reasonableness inquiry ‘much as a senior partner in a private law firm would review the reports of subordinate attorneys when billing clients.’” Id. (quoting Ramos v. Lamm, 713 F.2d 545, 555 (10th Cir. 1983)). In determining the reasonableness of the hours expended, a court considers several factors, including: (1) whether the amount of time spent on a particular task appears reasonable in light of the complexity of the case, the strategies pursued, and the responses necessitated by an opponent's maneuvering; (2) whether the amount of time spent is reasonable in relation to counsel's experience; and (3) whether the billing entries are sufficiently detailed, showing how much time was allotted to specific task. See Ramos, 713 F.2d at 553-54. “The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed.” Hensley, 461 U.S. at 433. The Tenth Circuit has
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noted that “[c]ounsel for the party claiming the fees has the burden of proving hours to the district court by submitting meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks.” Case v. Unified School Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1250 (10th Cir. 1998). “A district court is justified in reducing the reasonable number of hours if the attorney's time records are ‘sloppy and imprecise’ and fail to document adequately how he or she utilized large blocks of time.” Id.; see also Robinson, 160 F.3d at 1281 (“a district court may discount requested attorney hours if the attorney fails to keep ‘meticulous, contemporaneous time records’ that reveal ‘all hours for which compensation is requested and how those hours were allotted to specific tasks’”) (quotation omitted).
Once the court has adequate time records before it, “it must then ensure that the winning attorneys have exercised ‘billing judgment.’” Case, 157 F.3d at 1250 (quoting Ramos, 713 F.2d at 553). “Billing judgment consists of winnowing the hours actually expended down to the hours reasonably expended.” Id. “Hours that an attorney would not properly bill to his or her client cannot reasonably be billed to the adverse party, making certain time presumptively unreasonable.” Id. (citing Ramos, 713 F.2d at 55354) (giving as an example time spent doing background research); Hensley, 461 U.S. at 434, 437 (expecting counsel to exercise their “billing judgment”, “mak[ing] a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary”). In other words, the district court should exclude from this initial fee calculation hours that were not ‘reasonably expended.’” Hensley, 461 U.S. at 434 (quotation omitted).
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“After examining the specific tasks and whether they are properly chargeable, the district court should look at the hours expended on each task to determine if they are reasonable.” Id. “The Ramos court suggested that among the factors to be considered were (1) whether the tasks being billed ‘would normally be billed to a paying client,’ (2) the number of hours spent on each task, (3) ‘the complexity of the case,’ (4) ‘the number of reasonable strategies pursued,’ (5) ‘the responses necessitated by the maneuvering of the other side,’ and (6) ‘potential duplication of services’ by multiple lawyers. Robinson, 160 F.3d at 1281 (quoting Ramos, 761 F.2d at 554). “In this analysis, [the court should] ask what hours a reasonable attorney would have incurred and billed in the marketplace under similar circumstances.” Id.
1. Reasonable Hourly Rate Turning to my analysis, I first consider the reasonableness of the hourly rates charged by Plaintiffs’ counsel who worked on this case. As to the hourly rate, the Tenth Circuit indicates that “the court must look to ‘what the evidence shows the market commands for civil rights or analogous litigation.”’ Burch v. La Petite Academy, Inc., 2001 WL 589461 at *2 (quoting Case, 157 F.3d at 1243). The “local market rate” is usually the state or city in which counsel practices. Ellis v. Univ. of Kansas Medical Center, 163 F.3d 1186, 1203 (10th Cir. 1998) (looking at “the prevailing market rates in the relevant community”); Case, 157 F.3d at 1256 (looking at fees charged by lawyers in the area in which the litigation occurs). The court is also entitled to consider the quality of counsel’s performance in setting the fee. Ellis, 163 F.3d at 1203. Here, Defendants do not dispute the reasonableness of the rates charged by Plaintiffs’ counsel which range from $220-$440 per hour. Because Plaintiffs provided
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ample evidence that $220-$440 per hour is a reasonable rate in the Denver area for attorneys of similar background and experience as Plaintiffs’ counsel, I find the hourly rates requested to be reasonable.
2. Reasonable Number of Hours Plaintiffs’ counsel assert that they spent a total of 1,455.45 hours working on this case. (ECF No. 231 at 7). Defendants contend that these hours should be reduced for duplicative, excessive, vague, and unnecessary billing. D.C.COLO.L.Civ.R 54.3.B.1 requires the Plaintiffs to include "a detailed description of the services rendered . . . for each person for whom fees are claimed." See Hensley, 461 U.S. at 433 (stating that the party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly). District courts are “to give particular attention to the possibility of duplication” when multiple attorneys represent the same party, including when those attorneys are “in conferences with each other.” DeGrado v. Jefferson Pilot Fin. Ins. Co., Case No. 02-CV-01533-WYD-BNB, 2009 WL 1973501, at *7-8 (D. Colo. July 6, 2009) (citing New Mexico Citizens for Clean Air and Water v. Espanola, 72 F.3d 830, 835 (10th Cir. 1996)). For reasons stated on the record at the February 12, 2014 hearing and in this Order, I do find merit in Defendants’ argument that the fee request should be reduced due to excessive, vague, duplicative, and unnecessary billing entries. Though not required to do so, I conducted a painstaking review of Plaintiffs’ counsel’s 235-page billing statement. See Am. Water Dev., 874 P.2d 352, 387 (Colo. 1994) (recognizing
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that it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application and endorsing percentage cuts as a practical mans of trimming fat from a fee application). For example, Plaintiffs submitted their billing statement with general descriptions such as, "Reviewing work in progress" or “Discussing case status". These types of vague and duplicative entries occur from June of 2011 until August 2013 and account for approximately 56 billing entries for general and non-substantive conferences with one another. (See Plaintiffs’ Ex. 1 at 76-241). The billing records also include pages of entries where the attorneys reviewed each others’ work and email correspondence. While I recognize that some collaboration may have been necessary, I find that the number of billing entries for this type of activity to be excessive. (See Plaintiffs’ Ex. 1 at 35-228).
Furthermore, in considering the Ramos factors, I find that some of the tasks billed by Plaintiffs’ counsel would not normally be billed to a paying client. While Plaintiffs characterized this action as a complex case, I tend to agree with Defendants that this case was more straightforward because it was resolved after two motions for summary judgment with minimal discovery and never moved close enough to a trial date to justify significant trial preparation.
Accordingly, based on my judicial experience and careful consideration of the evidence and governing law, I find that Plaintiffs’ claimed number of hours expended are unreasonable and excessive due to both vagueness and duplication. For reasons stated on the record at the February 12, 2014 hearing and based on the above noted billing inadequacies, I find that a general reduction of hours is appropriate. See DeGrado, 2009 WL 1973501, at *10; Carr v. Fort Morgan School Dist., 4 F. Supp. 2d
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998, 1003 (D. Colo. 1998) (determining that an across-the-board 15% reduction of requested attorney fees is appropriate). Indeed, the Plaintiffs conceded that this approach was appropriate at the hearing and suggested a 15% reduction.3 Thus, I find that a reduction of 15% of the requested fees is appropriate. This results in a reduction of fees from $435,708.90 to $370,352.57. III. COSTS
Plaintiffs also request $20,342.51 in recoverable costs or litigation expenses pursuant to the ADA, 42 U.S.C. § 12205. Under the ADA, in addition to attorney fees, courts are authorized to award litigation expenses and costs to a prevailing party. See 42 U.S.C. § 12205. Specifically, litigation expenses chargeable under the ADA include expert witness fees. See Hall v. Claussen, 6 Fed, Appx. 665, 682 (10th Cir. 2001) (holding that the ADA provides the express statutory authorization necessary to award costs for expert witness fees); Lovell v. Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002) (noting that the preamble to the ADA regulations explains that litigation expenses include items such as expert witness fees and travel expenses). Here, the majority of Plaintiffs’ requested costs in this matter is attributable to expert fees, which I find to be reasonable and necessary litigation expenses. Based on my careful review and for the reasons stated on the record at the February 12, 2014 hearing, I find all of the expenses for which Plaintiffs’ counsel seeks reimbursement to be those that would normally be billed to a private client. See Ramos, 713 F.2d at 559. Accordingly, I award Plaintiffs $20,342.51 in recoverable costs pursuant to the ADA, 42 U.S.C.
3 Defendants also agreed with the approach and suggested a 25% reduction. -8-

§ 12205. IV. CONCLUSION
Based on the foregoing and for reasons stated on the record at the February 12, 2014 hearing, it is
ORDERED that Plaintiffs’ Motion for Attorneys’ Fees and Costs (ECF No. 231) is GRANTED IN PART AND DENIED IN PART. Pursuant to the ADA, 42 U.S.C. § 12205, Plaintiffs are awarded attorney fees in the amount of $370,352.57 and costs in the amount of $20,342.51. It is
FURTHER ORDERED that based on the parties’ Joint Statement Re: Additional Attorneys’ Fees for the Period August 31, 2013 to Present (ECF No. 244), I add $14,500 to the amount ordered above, for a total award of $384,852.57 in attorney fees and costs in the amount of $20,342.51.
Dated: February 26, 2014 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel Senior United States District Judge
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 Case 1:09-cv-02757-WYD-KMT Document 254-2 Filed 04/03/15 USDC Colorado Page 1 of 10
Exhibit 1

Case 1:09-cv-02757-WYD-KMT Document 254-2 Filed 04/03/15 USDC Colorado Page 2 of 10
SETTLEMENT AGREEMENT
1. PARTIES:
The parties to this Settlement Agreement (“Agreement”) are as follows:
1.1.On the one hand (collectively the “CCDC Parties”),
1.1.1. Colorado Cross-Disability Coalition (“CCDC”), a Colorado non-profit disability rights advocacy organization with its principal place of business located at 655 Broadway, Suite 775, Denver, Colorado 80203;
1.1.2. Julie Farrar;
1.1.3. Anita Hansen; and the class, defined as:
1.1.4. All people with disabilities who use wheelchairs for mobility who, during the two years prior to the filing of the Complaint in this case, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. Store in the United States on the basis of disability because of the presence of an Elevated Entrance (“Class Parties”).
1.2.and on the other hand (collectively the “A&F Parties”),
1.2.1. Abercrombie & Fitch Co. (“A&F Co.”), a Delaware corporation with its principal place of business located at 6301 Fitch Path, New Albany, Ohio 43054.
1.2.2. Abercrombie & Fitch Stores, Inc. (“A&F”), an Ohio corporation with its principal place of business located at 6301 Fitch Path, New Albany, Ohio 43054; and
1.2.3. J.M. Hollister, LLC (“Hollister”), an Ohio limited liability corporation with its principal place of business located at 6301 Fitch Path, New Albany, Ohio 43054.
2. RECITALS:
2.1.As of February 2, 2014, the A&F Parties operated approximately 218 Hollister Co. stores nationwide with Elevated Entrances as defined herein.
2.2.The CCDC Parties allege the A&F Parties violated Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq. and its implementing regulations

Case 1:09-cv-02757-WYD-KMT Document 254-2 Filed 04/03/15 USDC Colorado Page 3 of 10
regarding the accessibility for customers who use wheelchairs related to the Elevated Entrances in some Hollister Co. Stores.
2.3.Julie Farrar and Anita Hansen represent they are CCDC members who use wheelchairs for mobility and allege they experienced barriers to accessibility at a Hollister Co. Store.
2.4.The CCDC Parties filed a complaint in the United States District Court for the District of Colorado, Case No. 09-CV-02757, styled CCDC, et al. v. Abercrombie & Fitch Co., et al. (hereinafter, the “Litigation”).
2.5.The A&F Parties deny that they have violated any law, including without limitation the ADA, and admit no liability or wrongdoing in their Hollister Co. Stores.
2.6.The Plaintiffs and the A&F Parties wish to resolve this dispute without further cost and inconvenience to the Parties and, therefore, enter into this Agreement to resolve their dispute.
3. DEFINITIONS:
3.1.“ADA” shall refer to Title III of the ADA, 42 U.S.C. § 12181 et seq. and its implementing regulations.
3.2.“A&F Counsel” refers to Mark Knueve, whose contact information is provided below, or any person above-referenced counsel designates in writing during the Term of this Agreement.
3.3.“Agreement” shall refer to this settlement agreement.
3.4.“Effective Date” shall refer to the date that the Court enters a final order approving this Agreement.
3.5.“Elevated Entrance” shall refer to any entrance into a store that has one or more steps rendering it inaccessible to customers who use wheelchairs.
3.6.“Hollister Co. Stores” shall refer to all stores the A&F Parties operate under the name “Hollister Co.”
3.7.“Hollister Co. Post-Settlement Stores” means all Hollister Co. Stores the A&F Parties open after the Effective Date and during the Term of this Agreement.
3.8.“Mobility Disability” means a disability or condition which substantially limits a person in the major life activity of walking.
2

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3.9.“New Entrance Design” shall refer to a store entrance that has no changes in level between the exterior and interior of the store.
3.10. “Plaintiffs” shall refer to the Parties identified in section 1.
3.11. “Plaintiffs’ Counsel” refers to Kevin Williams, Andrew Montoya, Amy Robertson, Bill Lann Lee and Julia Campins, whose contact information is provided below, or any person above-referenced counsel designate in writing during the Term of this Agreement.
3.12. “Term” means one year from the Effective Date.
IN CONSIDERATION OF THE COVENANTS SET FORTH BELOW AND FOR GOOD AND VALUABLE CONSIDERATION, THE PARTIES AGREE AS FOLLOWS:
4. A&F PARTIES’ COVENANTS:
4.1.The A&F Parties represent that prior to the Effective Date of this Agreement they converted 31 Hollister Co. Stores which had Elevated Entrances to a New Entrance Design, and closed to the public 14 Hollister Co. Stores which had Elevated Entrances.
4.2.Subject to Court approval, the A&F Parties agree that, by January 31, 2016, they will either close to the public, or convert to the New Entrance Design, 47 additional Hollister Co. Stores with Elevated Entrances. Thus, by January 31, 2016, the number of Hollister Co. Stores with Elevated Entrances will have decreased from 218 to 126.
4.3.Subject to Court approval, the A&F Parties will not design or construct Elevated Entrances and will ensure all entrances to Hollister Co. Post-Settlement Stores are designed and constructed to a New Entrance Design.
4.4.Subject to Court approval, at the conclusion of the Term of the Agreement, A&F Counsel will provide Plaintiffs’ Counsel with the store name and location of each Hollister Co. Post-Settlement Store in writing.
4.5.Subject to Court approval, within ten days after the Court’s final approval of this Agreement is no longer subject to appeal or further appeal, the A&F Parties will pay by check made payable to the Colorado Cross-Disability Coalition Legal Program the following amounts to resolve the Plaintiffs’ claims for attorneys’ fees and costs: $190,000.00.
5. RELEASE AND COVENANT NOT TO SUE:
The Plaintiffs agree to the following:
3

Case 1:09-cv-02757-WYD-KMT Document 254-2 Filed 04/03/15 USDC Colorado Page 5 of 10
5.1.Released Claims of the CCDC Parties: Subject to Court approval, the CCDC Parties, their executors, heirs, successors, assigns, agents and representatives , in consideration of the relief set forth herein, the sufficiency of which is expressly acknowledged, unconditionally and forever do fully and finally release, acquit and discharge the A&F Parties and their parent and subsidiary corporations and each of their present, former or future officers, directors, agents, employees, representatives, predecessors, successors, and assigns from the CCDC Parties’ Released Claims as defined in sections 5.2 below.
5.2.The “CCDC Parties’ Released Claims” are any and all past or present claims, rights, demands, charges, complaints, actions, causes of action, and liabilities of any kind, including any and all such past or present claims for injunctive relief, declaratory relief, or fees, damages, costs and expenses against the Released Parties that are based upon the ADA or any public accommodation provision of any federal, state or local statutory, regulatory or common law concerning accessibility for persons with Mobility Disabilities at Hollister Co. Stores.
5.3.Released Claims of the Class Parties: Subject to Court approval, the Class Parties, their executors, heirs, successors, assigns, agents and representatives, in consideration of the relief set forth herein, the sufficiency of which is expressly acknowledged, unconditionally and forever do fully and finally release, acquit and discharge the A&F Parties and their parent and subsidiary corporations and each of their present, former or future officers, directors, agents, employees, representatives, predecessors, successors, and assigns from the Class Released Claims as defined in sections 5.4 below.
5.4.The “Class Released Claims” are any and all past or present claims, rights, demands, charges, complaints, actions, causes of action, and liabilities of any kind, including any and all such past or present claims for injunctive relief, declaratory relief, or fees, damages, costs and expenses against the Released Parties that are based upon the existence of the Elevated Entrances.
5.5.Upon the Effective Date of this Agreement, and subject to Court approval, the CCDC Parties agree to dismiss the Litigation with prejudice, each party to bear its own costs except as set forth in this Agreement.
6. COURT APPROVAL:
6.1.The Parties recognize that the terms of this Agreement are subject to approval by the Court consistent with Rule 23(e) of the Federal Rules of Civil Procedure. Accordingly, the Parties shall jointly submit this Agreement and supporting papers, which shall set forth the terms of this Agreement and will include a proposed form of
4

Case 1:09-cv-02757-WYD-KMT Document 254-2 Filed 04/03/15 USDC Colorado Page 6 of 10
notice pursuant to Rule 23(e)(1), and shall request hearing dates before the Court for preliminary approval and, after notice, final approval of the Settlement Agreement.
6.2.If the Court does not enter preliminary approval of this Agreement, does not finally approve this Agreement and the proposed settlement, or this Agreement and the proposed settlement do not become final due to an objection, an appeal, or for any other reason, this Agreement shall be null and void and any order or judgment entered by the Court in furtherance of this settlement shall be treated as void ab initio. In such a case, the Parties shall proceed in all respects as if this Agreement had not been executed.
7. COMMUNICATIONS TO COUNSEL:
All notices or communications required by this Agreement shall be in writing by facsimile or signed, scanned and delivered by e-mail and also sent by U.S. Mail or overnight delivery service addressed as follows:
To Plaintiffs’ Counsel:
Kevin W. Williams Andrew C. Montoya Colorado Cross Disability Coalition Legal Program 655 Broadway, Suite 775 Denver, CO 80203 Telephone: (303) 839-1775 Facsimile: (720) 210-9819 Email: kwilliams@ccdconline.org Email: amontoya@ccdconline.org
Amy F. Robertson Civil Rights Education and Enforcement Center 104 Broadway, Suite 400 Denver, Colorado 80203 Telephone: (303) 757-7901 Facsimile: (303) 691-5861 Email: arobertson@creeclaw.org
Bill Lann Lee Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 476 9th Street Oakland, California 94607 Telephone: (510) 839-6824 Facsimile: ((510) 839-7839 Email: blee@lewisfeinberg.com
5

Case 1:09-cv-02757-WYD-KMT Document 254-2 Filed 04/03/15 USDC Colorado Page 7 of 10
Julia Campins Campins-Benham-Baker, LLP 8 California Street, Suite 703 San Francisco, California 94111 Telephone: (415) 373-5333 Facsimile (415) 373-5334 Email: julia@cbbllp.com
To the A&F Parties’ Counsel:
Mark A. Knueve Vorys, Sater, Seymour and Pease LLP 52 E. Gay Street Columbus, Ohio 43215 Telephone: (614) 464-6400 Facsimile: (614) 719-4923 Email: maknueve@vorys.com
8. ADDITIONAL AGREEMENTS:
8.1.This Agreement is binding on all successors and assigns of the CCDC Parties, the Class Parties and the A&F Parties. For the Term of this Agreement, Plaintiffs’ Counsel and the A&F Parties’ Counsel will be notified in writing of the names, addresses and phone numbers of any such successors and assigns.
8.2.Neither this Agreement nor any action taken to carry out this Agreement is, may be construed as, or may be used as, an admission or concession by or against the A&F Parties or the Released Parties of the validity of any Released Claim or any actual or potential fault, wrongdoing or liability by them or any of them. Entering into or carrying out the Agreement, and any negotiations related to it, shall not be construed as, or deemed to be evidence of, an admission or concession as to the A&F Parties’ denials of the Released Claims and shall not be offered or received in evidence in any action or proceeding against any Party hereto in any court, administrative agency or other tribunal for any purpose whatsoever, except for the purpose of enforcing the provisions of this Agreement.
8.3.This Agreement contains all the agreements, conditions, promises and covenants between the CCDC Parties and the Class Parties, on the one hand, and the A&F Parties, on the other hand, regarding matters set forth in it and supersedes all prior or contemporaneous agreements, drafts, representations or understandings, either written or oral, with respect to the subject matter of the present Agreement.
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02757-WYD-KMT COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation; ANITA HANSEN; and JULIE FARRAR, individually and as class representatives,
Plaintiffs, v. ABERCROMBIE & FITCH CO.; ABERCROMBIE & FITCH STORES, INC.; and J.M HOLLISTER LLC, d/b/a HOLLISTER CO.,
Defendants.
ORDER
I. INTRODUCTION AND BACKGROUND THIS MATTER comes before the Court on the Defendants’ Motion to Stay
Injunctive Relief Pending Appeal (ECF No. 217). By way of background, I granted summary judgment to Plaintiffs finding that 231
Hollister clothing stores located throughout the United States violated the Americans With Disabilities Act (“ADA”), 42 U.S.C. 12181, et seq.1 On August 20, 2013, I entered a permanent injunction requiring Defendants to remove, ramp, or close off all of the elevated entry doors by January 1, 2017, at a rate of at least 77 stores each year beginning on January 1, 2014. (ECF No. 211). On September 9, 2013, Defendants
1 In numerous prior written orders, I set forth detailed recitations of the facts of this case along with my reasoning and findings. Those orders are incorporated by reference herein.

filed a notice of appeal. In the pending motion, Defendants request that I stay the permanent injunction
until Defendants’ appeal to the Tenth Circuit Court of Appeals is adjudicated pursuant to Fed. R. Civ. P. 62(c). While Plaintiffs agree to stay portions of the permanent injunction, they do not agree to extend the final deadline of January 1, 2017 for completing reconstruction of all store entrances. For reasons stated below, I find that a stay is not warranted, and thus, the motion is denied. II. DISCUSSION
Under Fed. R. Civ. P. 62(c), I may “suspend, modify, restore, or grant an injunction on terms . . . that secure the opposing party's rights” while an appeal is pending from a final judgment that grants an injunction.2 The purpose of a stay is to preserve the status quo pending appellate determination. McClendon v. City of Albuquerque, 79 F .3d 1014, 1020 (10th Cir.1996); see Thunder Mountain Custom Cycles, Inc. v. Thiessen Products, Inc., 2008 WL 5412469, 4 (D. Colo. 2008). The decision to grant a stay must not be entered into lightly. See Nken v. Holder, 556 U.S. 418, 129 S.Ct. 1749, 1757 (2009) (noting a stay is an intrusion into the ordinary processes of administration and judicial review).
When considering a stay pending appeal, I am guided by a four-part test similar to that governing preliminary injunctions. See Nken, 556 U.S. 418, 129 S.Ct. at 1761. I must address the following factors: (1) the likelihood of success on appeal; (2) the threat
2 Here, the parties agree that the judgment appealed from does not involve a money judgment and is properly characterized as injunctive, making this subsection applicable.
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of irreparable harm absent a stay; (3) the absence of harm to opposing parties if the stay is granted; and (4) any risk of harm to the public interest. FTC v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003); Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001). Where the moving party has established that the three “harm” factors tip decidedly in its favor, the “probability of success” requirement is somewhat relaxed, and is satisfied by showing questions going to the merits so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation. Mainstream Marketing Serv., Inc., 345 F.3d at 852–53. Thus, I first address the three harm factors.
A. Irreparable Injury Defendants allege that they will suffer irreparable harm in the absence of a stay because the permanent injunction requires them to reconstruct entrances at 231 Hollister stores around the country at an estimated total cost of $8 million to $9 million. Defendants further assert that under the terms of the injunction, this construction work cannot be delayed. The injunction requires that Defendants remodel the entrances of all 231 stores by January 1, 2017, at a rate of at least 77 stores each year beginning on January 1, 2014. Defendants also note that regular business activities will be affected while entrances are “torn out and reconstructed, resulting in lost sales and customer goodwill.” (Mot. at 5). I disagree. The injunction only requires that 77 store entrances be remodeled each year. Moreover, I accommodated Defendants’ request that the injunction not commence until after the 2013 holiday retail season. Thus, Defendants may remodel stores at their discretion during less busy months of the year, minimizing
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the impact on customers. Additionally, while I recognize that the injunction requires Defendants to incur
construction costs, I do not find that this would cause irreparable injury. In a hearing held on August 16, 2013, before finalizing the injunction, I raised the issue of the injunction’s economic impact on the Defendants. (Hr’g Tr. 24-31, Aug. 16, 2013). While the Defendants refused to answer my direct questions regarding their annual revenues, Plaintiffs introduced Abercrombie & Fitch, Inc.’s 10k filing, which is the parent company that operates the Hollister brand. (Tr. 27-29). Based on the 10k filing, in 2012, Abercrombie & Fitch, Inc. had a net income of $237 million dollars. (Tr. 29-30). Thus, I find the cost of complying with the injunction (approximately $2-3 million per year) to be relatively minor in relation to Defendants’ net income of $237 million last year. Thus, I find that the first factor only slightly favors Defendants, if at all.
B. Lack of Substantial Harm to Other Parties Defendants contend that Plaintiffs would not sustain a substantial injury if the injunction is stayed pending appeal. Plaintiffs disagree, arguing that they will continue to suffer from the “dignity harm” caused by ADA violations at Hollister stores. I agree with Plaintiffs. While the harm to Defendants is primarily economic should I deny the motion to stay, Plaintiffs will continue suffering the indignity of being unable to use the raised porch entrances of 231 Hollister clothing stores located throughout the United States should I grant the motion. Accordingly, I find that this element strongly favors Plaintiffs.
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C. Public Interest Defendants assert that the public has both an interest in the proper enforcement of ADA requirements and in the avoiding of unnecessary waste of economic resources. On the other hand, Plaintiffs argue that the “worst result of the denial of a stay is that Defendants are required to ensure even better access for individuals who use wheelchairs than what the Tenth Circuit determines that the ADA requires.” (Resp. at 7). I agree with Plaintiffs and find that the public would be best served with companies complying with ADA requirements, and making these public buildings accessible to all persons. Thus, Defendants have failed to show that public interests weigh in their favor. D. Likelihood of Success on the Merits of the Appeal Based on my findings in this Order, the first three “harm” factors do not support a relaxed review of the “likelihood of success” factor. Defendants produce no new evidence that my prior rulings are in error. Thus, I find that Defendants are not likely to succeed on appeal. Accordingly, I find that Defendants’ motion to stay injunctive relief pending appeal pursuant to Fed. R. Civ. P. 62(c) shall be denied. III. CONCLUSION Based on the foregoing, it is ORDERED that the Defendants’ Motion to Stay Injunctive Relief Pending Appeal (ECF No. 217) is DENIED.
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Dated: November 15, 2013

BY THE COURT:

s/ Wiley Y. Daniel Wiley Y. Daniel Senior United States District Judge

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 Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 1 of 26
NDISPO,TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:09−cv−02757−WYD−KMT

Colorado Cross−Disability Coalition et al v. Abercrombie & Fitch Co. et al Assigned to: Judge Wiley Y. Daniel Referred to: Magistrate Judge Kathleen M. Tafoya Case in other court: USCA, 13−01377 Cause: 42:12181 American With Disabilities Act (ADA)
Plaintiff

Date Filed: 11/24/2009 Date Terminated: 08/20/2013 Jury Demand: Plaintiff Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Colorado Cross−Disability Coalition a Colorado non−profit Corporation

represented by Kevin William Williams Colorado Cross−Disability Coalition Legal Program 1385 South Colorado Boulevard Suite 610−A Denver, CO 80222 303−839−1775 Fax: 303−839−1782 Email: kwilliams@ccdconline.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Farr Robertson Civil Rights Education and Enforcement Center 104 Broadway Suite 400 Denver, CO 80203 303−757−7901 Fax: 303−595−9705 Email: arobertson@creeclaw.org ATTORNEY TO BE NOTICED

Andrew Christopher Montoya Colorado Cross−Disability Coalition Legal Program 1385 South Colorado Boulevard Suite 610−A Denver, CO 80222 303−839−1775 Fax: 303−839−1782 Email: amontoya@ccdconline.org ATTORNEY TO BE NOTICED

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

Carrie Ann Lucas Center for Rights of Parents with Disabilities P.O. Box 756 Windsor, CO 80550 720−363−1131 Fax: 970−818−9295

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 2 of 26

Email: clucas@disabledparentrights.org TERMINATED: 05/04/2011

Julia Campins Campins Benham−Baker, LLP 935 Moraga Road Suite 200 Lafayette, CA 94549 415−373−5333 Fax: 415−373−5334 Email: julia@cbbllp.com ATTORNEY TO BE NOTICED

Timothy Patrick Fox Civil Rights Education and Enforcement Center 104 Broadway Suite 400 Denver, CO 80203 303−757−7901 Fax: 303−595−9705 Email: tfox@creeclaw.org ATTORNEY TO BE NOTICED

Plaintiff Anita Hansen

represented by Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Farr Robertson (See above for address) ATTORNEY TO BE NOTICED

Andrew Christopher Montoya (See above for address) ATTORNEY TO BE NOTICED

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

Carrie Ann Lucas (See above for address) TERMINATED: 05/04/2011

Julia Campins (See above for address) ATTORNEY TO BE NOTICED

Timothy Patrick Fox (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Robert Sirowitz TERMINATED: 09/23/2011

represented by Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Farr Robertson (See above for address) ATTORNEY TO BE NOTICED

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 3 of 26

Andrew Christopher Montoya (See above for address) ATTORNEY TO BE NOTICED

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

Carrie Ann Lucas (See above for address) TERMINATED: 05/04/2011

Julia Campins (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Joshua Stapen on behalf of themselves and all others similarly situated TERMINATED: 12/08/2011

represented by Kevin William Williams (See above for address) TERMINATED: 12/08/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Farr Robertson (See above for address) TERMINATED: 12/08/2011 ATTORNEY TO BE NOTICED

Andrew Christopher Montoya (See above for address) TERMINATED: 12/08/2011 ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 12/08/2011 ATTORNEY TO BE NOTICED

Carrie Ann Lucas (See above for address) TERMINATED: 05/04/2011

Julia Campins (See above for address) TERMINATED: 12/08/2011 ATTORNEY TO BE NOTICED

Plaintiff
Robin Stephens TERMINATED: 09/23/2011

represented by Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Farr Robertson (See above for address) ATTORNEY TO BE NOTICED

Andrew Christopher Montoya (See above for address) ATTORNEY TO BE NOTICED

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

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 4 of 26

Plaintiff Benjamin Hernandez on behalf on themselves and all others similarly situated TERMINATED: 09/23/2011
Plaintiff Julie Farrar

Carrie Ann Lucas (See above for address) TERMINATED: 05/04/2011
Julia Campins (See above for address) ATTORNEY TO BE NOTICED
represented by Amy Farr Robertson (See above for address) ATTORNEY TO BE NOTICED
Andrew Christopher Montoya (See above for address) ATTORNEY TO BE NOTICED
Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED
Carrie Ann Lucas (See above for address) TERMINATED: 05/04/2011
Julia Campins (See above for address) ATTORNEY TO BE NOTICED
Kevin William Williams (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Farr Robertson (See above for address) ATTORNEY TO BE NOTICED
Julia Campins (See above for address) ATTORNEY TO BE NOTICED
Timothy Patrick Fox (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Abercrombie & Fitch Co.

represented by Thomas B. Ridgley Vorys Sater Seymour & Pease, LLP−Columbus P.O. Box 1008 52 East Gay Street Columbus, OH 43216−1008 614−464−6229

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 5 of 26

Fax: 614−719−4923 Email: tbridgley@vorys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory Alan Eurich Holland & Hart, LLP−Denver P.O. Box 8749 555 17th Street Suite 3200 Denver, CO 80201−8749 303−295−8166 Fax: 303−295−8261 Email: geurich@hollandhart.com

Joseph Neguse Snell & Wilmer, LLP−Denver 1200 17th Street One Tabor Center Suite 1900 Denver, CO 80202 303−634−2096 Fax: 303−634−2020 Email: jneguse@swlaw.com ATTORNEY TO BE NOTICED

Kevin William Williams (See above for address) ATTORNEY TO BE NOTICED

Mark Arnold Knueve Vorys, Sater, Seymour & Pease, LLP−Columbus P.O. Box 1008 52 East Gay Street Columbus, OH 43216−1008 614−464−6387 Fax: 614−719−4808 Email: maknueve@vorys.com ATTORNEY TO BE NOTICED

Defendant Abercrombie & Fitch Stores, Inc.

represented by Thomas B. Ridgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory Alan Eurich (See above for address)

Joseph Neguse (See above for address) ATTORNEY TO BE NOTICED

Kevin William Williams (See above for address) ATTORNEY TO BE NOTICED

Mark Arnold Knueve (See above for address) ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 6 of 26

J.M. Hollister LLC doing business as Hollister Co.

Thomas B. Ridgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory Alan Eurich (See above for address) ATTORNEY TO BE NOTICED

Joseph Neguse (See above for address) ATTORNEY TO BE NOTICED

Kevin William Williams (See above for address) ATTORNEY TO BE NOTICED

Mark Arnold Knueve (See above for address) ATTORNEY TO BE NOTICED

Interested Party USA

represented by Nabina Justine Sinha Arent Fox LLP−Los Angeles 555 West Fifth Street 48th Floor Los Angeles, CA 90013 202−616−2730 Email: nabina.sinha@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 11/24/2009
12/02/2009 12/03/2009 12/08/2009 12/09/2009
12/10/2009
12/16/2009

# Docket Text
1 COMPLAINT against Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC ( Filing fee $ 350, Receipt Number 23768) Summons Issued, filed by Colorado Cross−Disability Coalition, Anita Hansen, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Civil Cover Sheet, # 2 Receipt)(jak, ) (Entered: 11/24/2009)
2 ORDER directing reassignment to another judge. By Judge Zita L. Weinshienk on 12/02/2009. (sah, ) (Entered: 12/02/2009)
3 LETTER REASSIGNING CASE. Case reassigned to Chief Judge Wiley Y. Daniel for all further proceedings. Judge Zita L. Weinshienk no longer assigned to the case. (sah, ) (Entered: 12/03/2009)
4 ORDER REFERRING CASE to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 12/8/09. (wydcd, rrk) (Entered: 12/08/2009)
5 ORDER SETTING RULE 16(b) SCHEDULING CONFERENCE AND RULE 26(f) PLANNING MEETING: Scheduling Conference set for 2/18/2010 09:30 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya by Magistrate Judge Kathleen M. Tafoya on 12/9/09. (kmtcd) (Entered: 12/09/2009)
6 AMENDED ORDER SETTING RULE 16(b) SCHEDULING CONFERENCE AND RULE 26(f) PLANNING MEETING: Scheduling Conference set for 2/18/2010 10:00 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya by Magistrate Judge Kathleen M. Tafoya on 12/10/09. (kmtcd) (Entered: 12/11/2009)
7 WAIVER OF SERVICE Returned Executed by Colorado Cross−Disability Coalition, Anita Hansen, Robert Sirowitz, Joshua Stapen, Robin Stephens. Abercrombie & Fitch Co. waiver sent on 12/1/2009, answer due 2/1/2010; Abercrombie & Fitch Stores, Inc. waiver sent on 12/1/2009, answer due 2/1/2010; J.M. Hollister LLC waiver sent on 12/1/2009, answer due 2/1/2010. (Williams, Kevin) (Entered: 12/16/2009)

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01/28/2010 01/28/2010 02/01/2010 02/10/2010 02/10/2010 02/10/2010
02/10/2010 02/18/2010
02/18/2010 02/18/2010 02/25/2010 02/25/2010 02/25/2010

8 ANSWER to 1 Complaint, and Defenses of Defendants by Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC.(Eurich, Gregory) (Entered: 01/28/2010)
9 CORPORATE DISCLOSURE STATEMENT by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC.. (Eurich, Gregory) (Entered: 01/28/2010)
10 CORPORATE DISCLOSURE STATEMENT by Plaintiffs Colorado Cross−Disability Coalition, (Williams, Kevin) (Modified on 2/4/2010 corrected filers)(erv, ). (Entered: 02/01/2010)
11 Proposed Scheduling Order by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Williams, Kevin) (Entered: 02/10/2010)
12 Unopposed MOTION for Leave to Allow Out of Town Counsel to Participate in Scheduling Conference by Telephone by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Eurich, Gregory) (Entered: 02/10/2010)
13 MEMORANDUM regarding 12 Unopposed MOTION for Leave to Allow Out of Town Counsel to Participate in Scheduling Conference by Telephone filed by J.M. Hollister LLC, Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 2/10/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(wydcd, rrk) (Entered: 02/10/2010)
14 MINUTE ORDER granting 12 Unopposed MOTION for Leave to Allow Out of Town Counsel to Participate in Scheduling Conference by Telephone. Attorney Ridgely may participate by telephone by calling 303−335−2780 at the scheduled time. By Magistrate Judge Kathleen M. Tafoya on 2/10/10.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (kmtlc1 ) (Entered: 02/10/2010)
15 Minute Entry for proceedings held before Magistrate Judge Kathleen M. Tafoya: Scheduling Conference held on 2/18/2010. Discovery due by 10/18/2010., Dispositive Motions due by 11/18/2010. Settlement Conference set for 3/18/2010 09:00 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. The Court will permit the appearances of Mr. Thomas Ridgley and Mr. Miller by telephone at the Settlement Conference set for March 18, 2010 at 9:00 a.m.Final Pretrial Conference set for 1/18/2011 09:00 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. (FTR − Debra Brown) (kmtcd, ) (Entered: 02/18/2010)
16 SCHEDULING ORDER by Magistrate Judge Kathleen M. Tafoya on 2/18/2010. (kmtcd, ) (Entered: 02/18/2010)
17 ORDER SETTING SETTLEMENT CONFERENCE: Settlement Conference set for 3/18/2010 09:00 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. The Court will permit the appearances of Mr. Thomas Ridgley and Mr. Miller by telephone at the Settlement Conference set for March 18, 2010 at 9:00 a.m. by Magistrate Judge Kathleen M. Tafoya on 2/18/2010. (kmtcd, ) (Entered: 02/18/2010)
18 Unopposed MOTION for Leave to File Amended Complaint by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Amended Complaint)(Williams, Kevin) (Entered: 02/25/2010)
19 MEMORANDUM regarding 18 Unopposed MOTION for Leave to File Amended Complaint filed by Joshua Stapen, Anita Hansen, Robert Sirowitz, Colorado Cross−Disability Coalition, Robin Stephens.Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 2/25/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 02/25/2010)
20 ORDER granting 18 Unopposed MOTION for Leave to File Amended Complaint by Plaintiffs. The Clerk of Court shall file Plaintiffs Amended Complaint(Doc. No. 18−2). Signed by Magistrate Judge Kathleen M. Tafoya on 2/25/2010.(kmtcd, ) (Entered: 02/26/2010)

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 8 of 26

02/25/2010 03/15/2010 03/18/2010 04/05/2010 04/05/2010 04/06/2010
04/13/2010 04/13/2010 04/14/2010
04/16/2010 04/19/2010 04/30/2010 05/12/2010

21 AMENDED COMPLAINT against Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, filed by Benjamin Hernandez, Colorado Cross−Disability Coalition, Anita Hansen, Robert Sirowitz, Joshua Stapen, Robin Stephens.(erv, ) (Entered: 03/02/2010)
22 ANSWER to 21 Amended Complaint and Defenses of Defendants by Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC.(Eurich, Gregory) (Entered: 03/15/2010)
23 Minute Entry for proceedings held before Magistrate Judge Kathleen M. Tafoya: Settlement Conference held on 3/18/2010, and no settlement was reached asto any claims in this action. (kmtcd, ) (Entered: 03/19/2010)
24 Second MOTION to Amend/Correct/Modify 1 Complaint, and Proposed Class Action Complaint by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Exhibit Second Amended and Class Action Complaint)(Williams, Kevin) (Entered: 04/05/2010)
25 WITHDRAWN MOTION to Certify Class by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Williams, Kevin) (Modified on 4/14/2010 Pursuant to the 28 Notice to Withdraw)(erv, ). (Entered: 04/05/2010)
26 MEMORANDUM regarding 24 Second MOTION to Amend/Correct/Modify 1 Complaint, and Proposed Class Action ComplaintSecond MOTION to Amend/Correct/Modify 1 Complaint, and Proposed Class Action Complaint filed by Joshua Stapen, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Colorado Cross−Disability Coalition, Robin Stephens. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 4/6/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 04/06/2010)
27 NOTICE of Entry of Appearance by Bill Lann Lee on behalf of All Plaintiffs (Lee, Bill) (Entered: 04/13/2010)
28 NOTICE OF WITHDRAWAL OF MOTION FOR CLASS CERTIFICATION [DOC. # 25] by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens (Williams, Kevin) (Entered: 04/13/2010)
29 MEMORANDUM regarding 24 Second MOTION to Amend/Correct/Modify 1 Complaint, filed by Joshua Stapen, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Colorado Cross−Disability Coalition, Robin Stephens. Motions referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 4/14/2010.(Motion re−referred pursuant to Judge's chambers) TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(erv, ) (Entered: 04/14/2010)
30 BRIEF in Opposition to 24 Second MOTION to Amend/Correct/Modify 1 Complaint, and Proposed Class Action Complaint filed by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Eurich, Gregory) (Modified on 4/19/2010 edited duplicate etxt) (ervsl, ). (Entered: 04/16/2010)
31 NOTICE of Entry of Appearance by Amy Farr Robertson on behalf of Colorado Cross−Disability Coalition, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens, and Anita Hansen (Robertson, Amy) (Modified on 4/20/2010 added additional filer pursuant to the Notice) (erv, ). (Entered: 04/19/2010)
32 REPLY to Response to 24 Second MOTION to Amend/Correct/Modify 1 Complaint, and Proposed Class Action Complaint filed by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Williams, Kevin) (Modified on 5/3/2010 edited duplicate text)(erv, ). (Entered: 04/30/2010)
33 ORDER granting 24 Plaintiffs Motion for leave to file Second Amended and Class Action Complaint by Magistrate Judge Kathleen M. Tafoya on 5/12/2010.(erv, ) (Entered: 05/12/2010)

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 9 of 26

05/12/2010 05/26/2010 05/26/2010 05/26/2010 05/27/2010 06/01/2010 06/01/2010 06/01/2010
06/02/2010
06/03/2010
06/03/2010
06/04/2010 06/15/2010
06/15/2010

34 SECOND AMENDED COMPLAINT against Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, filed by Benjamin Hernandez, Anita Hansen, Joshua Stapen, Robin Stephens, Colorado Cross−Disability Coalition, Robert Sirowitz.(erv, ) (Entered: 05/12/2010)
35 MOTION to Dismiss For Lack of Standing by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Eurich, Gregory) (Entered: 05/26/2010)
36 BRIEF in Support of 35 MOTION to Dismiss For Lack of Standing filed by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Eurich, Gregory) (Entered: 05/26/2010)
37 NOTICE of Entry of Appearance by Carrie Ann Lucas on behalf of Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens (Lucas, Carrie) (Entered: 05/26/2010)
38 NOTICE of Entry of Appearance of Mark A. Knueve by Gregory Alan Eurich on behalf of All Defendants (Eurich, Gregory) (Entered: 05/27/2010)
39 NOTICE of Entry of Appearance by Mark Arnold Knueve on behalf of All Defendants (Knueve, Mark) (Entered: 06/01/2010)
40 Stipulated MOTION for Protective Order by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Williams, Kevin) (Entered: 06/01/2010)
41 MEMORANDUM regarding 40 Stipulated MOTION for Protective Order filed by Joshua Stapen, Anita Hansen, Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., Robert Sirowitz, Colorado Cross−Disability Coalition, Robin Stephens, J.M. Hollister LLC, Benjamin Hernandez. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 6/1/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 06/01/2010)
42 Docket Annotation re: 40 Stipulated MOTION for Protective Order, There was NO Motion filed with this Entry, It is to be refiled as a Motion for Protective Order with the Stipulated Protective filed as an attachment to the Motion. A copy of that Order should also be e−mailed to chambers in Word or WordPerfect format. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (erv, ) (Entered: 06/02/2010)
43 Joint MOTION for Protective Order by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Proposed Order (PDF Only) Stipulated Protective Order)(Williams, Kevin) (Entered: 06/03/2010)
44 MEMORANDUM regarding 43 Joint MOTION for Protective Order filed by Joshua Stapen, Anita Hansen, Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., Robert Sirowitz, Colorado Cross−Disability Coalition, Robin Stephens, J.M. Hollister LLC, Benjamin Hernandez. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 6/3/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 06/03/2010)
45 ORDER denying 43 Joint Motion for for Entry of Stipulated Protective Order and the proposed Protective Order is REFUSED. by Magistrate Judge Kathleen M. Tafoya on 6/4/2010.(erv, ) (Entered: 06/04/2010)
46 Stipulated MOTION for Protective Order by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Proposed Document Stipulated Protective Order)(Williams, Kevin) (Entered: 06/15/2010)
47 MEMORANDUM regarding 46 Stipulated MOTION for Protective Order filed by Joshua Stapen, Anita Hansen, Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., Robert Sirowitz, Colorado Cross−Disability Coalition, Robin Stephens, J.M. Hollister LLC, Benjamin Hernandez. Motion referred to Magistrate Judge Kathleen M.

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 10 of 26

06/17/2010 06/17/2010 06/20/2010 06/21/2010 06/28/2010
07/08/2010 07/12/2010 07/19/2010
07/19/2010 07/20/2010 08/02/2010 08/03/2010
08/04/2010

Tafoya by Chief Judge Wiley Y. Daniel on 6/15/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 06/15/2010)
48 MINUTE ORDER granting 46 Stipulated Motion for Protective Order by Magistrate Judge Kathleen M. Tafoya on 6/17/2010.(erv, ) (Entered: 06/17/2010)
49 STIPULATED PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 6/17/2010. (erv, ) (Entered: 06/17/2010)
50 Unopposed MOTION for Extension of Time to File Response/Reply as to 35 MOTION to Dismiss For Lack of Standing by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Williams, Kevin) (Entered: 06/20/2010)
51 ORDER granting 50 Motion for Extension of Time to File Response/Reply to and including Monday, June 28, 2010 by Chief Judge Wiley Y. Daniel on 6/21/10.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydlc4, ) (Entered: 06/21/2010)
52 RESPONSE to 35 MOTION to Dismiss For Lack of Standing filed by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Exhibit Declaration of Anita Hansen, # 2 Exhibit Declaration of Benjamin Hernandez, # 3 Exhibit Declaration of Robert Sirowitz, # 4 Exhibit Declaration of Joshua Stapen, # 5 Exhibit Declaration of Robin Stephens)(Williams, Kevin) (Entered: 06/28/2010)
53 NOTICE of Entry of Appearance by Julia Campins on behalf of All Plaintiffs (Campins, Julia) (Entered: 07/08/2010)
54 REPLY to Response to 35 MOTION to Dismiss For Lack of Standing in Support of Motion to Dismiss for Lack of Standing filed by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Eurich, Gregory) (Entered: 07/12/2010)
55 WITHDRAWN− MOTION to Compel by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Affidavit Exhibit 1: Declaration of KWW, # 2 Exhibit Exh. A of Decl. of KWW, # 3 Exhibit Exh. B of Decl. of KWW, # 4 Exhibit Exh. C of Decl. of KWW, # 5 Exhibit Exh. D of Decl. of KWW, # 6 Exhibit Exh. E of Decl. of KWW, # 7 Exhibit Exh. F of Decl. of KWW)(Williams, Kevin) Modified on 8/9/2010 to indicate that this document has been withdrawn, pursuant to 8/9/10 Minute Order (lyg, ). (Entered: 07/19/2010)
56 MEMORANDUM regarding 55 MOTION to Compel filed by Joshua Stapen, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Colorado Cross−Disability Coalition, Robin Stephens. Motions referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 7/19/2010. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(erv, ) (Entered: 07/19/2010)
57 MINUTE ORDER Setting Hearing on Motion: Motion Hearing set for 9/7/2010 at 10:00 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya regarding 55 MOTION to Compel. By Magistrate Judge Kathleen M. Tafoya on 7/20/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(kmtlc1 ) (Entered: 07/20/2010)
58 Unopposed MOTION for Extension of Time to Extend Expert Witness Deadline by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Williams, Kevin) (Entered: 08/02/2010)
59 MEMORANDUM regarding 58 Unopposed MOTION for Extension of Time to Extend Expert Witness Deadline filed by Joshua Stapen, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Colorado Cross−Disability Coalition, Robin Stephens. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 8/3/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 08/03/2010)
60 MINUTE ORDER granting 58 Motion to Extend Expert Witness Designation Deadlines. The expert witness disclosure deadlines are extended until Defendants' motion to stay is filed and the Court has ruled on that motion and Defendants' motion

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 11 of 26

08/06/2010 08/06/2010 08/06/2010
08/09/2010 08/09/2010 08/09/2010
08/10/2010 08/26/2010 08/26/2010 08/30/2010
08/31/2010
08/31/2010

to dismiss. Following ruling on the motions, the parties shall file a status report advising the court of the need to address ongoing discovery deadlines. By Magistrate Judge Kathleen M. Tafoya on 8/2/10.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (kmtlc1 ) (Entered: 08/04/2010)
61 Unopposed MOTION to Stay Discovery and Scheduling Order Pending Resolution of Defendants' Motion to Dismiss by Defendant Abercrombie & Fitch Stores, Inc.. (Knueve, Mark) (Entered: 08/06/2010)
62 BRIEF in Support of 61 Unopposed MOTION to Stay Discovery and Scheduling Order Pending Resolution of Defendants' Motion to Dismiss filed by Defendant Abercrombie & Fitch Stores, Inc.. (Knueve, Mark) (Entered: 08/06/2010)
63 MEMORANDUM regarding 61 Unopposed MOTION to Stay Discovery and Scheduling Order Pending Resolution of Defendants' Motion to Dismiss filed by Abercrombie & Fitch Stores, Inc. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 8/6/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 08/06/2010)
64 NOTICE re 55 MOTION to Compel Notice of Withdrawal by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens (Williams, Kevin) (Entered: 08/09/2010)
65 MINUTE ORDER: Pursuant to 64 , the 55 Motion to Compel is WITHDRAWN. The motion hearing set for September 7, 2010, is VACATED. By Magistrate Judge Kathleen M. Tafoya on 8/9/10.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (kmtlc1 ) (Entered: 08/09/2010)
66 ORDER granting 61 Unopposed Motion to Stay Discovery and Scheduling Order Pending Resolution of Defendants' Motion to Dismiss. Discovery and the deadlines set in Scheduling Order are stayed pending ruling on Defendants Motion to Dismiss. Parties shall file a joint status report within 10 days of the district court's ruling on the Motion to Dismiss, by Magistrate Judge Kathleen M. Tafoya on 8/9/10.(lyg, ) Modified on 8/10/2010 to add information regarding the status report (lyg, ). (Entered: 08/09/2010)
67 Docket Annotation re: 66 Order on Motion to Stay. This docket entry was modified to add information regarding status report. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (lyg, ) (Entered: 08/10/2010)
68 NOTICE of Change of Address by Julia Campins (Campins, Julia) (Entered: 08/26/2010)
69 NOTICE of Change of Address by Bill Lann Lee (Lee, Bill) (Entered: 08/26/2010)
70 Unopposed MOTION for Leave to File THIRD AMENDED AND CLASS ACTION COMPLAINT by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 THIRD AMENDED AND CLASS ACTION COMPLAINT, # 2 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 08/30/2010)
71 MEMORANDUM regarding 70 Unopposed MOTION for Leave to File THIRD AMENDED AND CLASS ACTION COMPLAINT filed by Joshua Stapen, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Colorado Cross−Disability Coalition, Robin Stephens. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 8/31/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 08/31/2010)
72 ORDER granting 70 Plaintiffs' Unopposed Motion for Leave to File Third Amended and Class Action Complaint. Clerk is directed to file the Third Amended and Class Action Complaint. Defendants to answer or otherwise respond to the Third Amended and Class Action Complaint no later than 9/20/10. If no motion to dismiss is filed by 9/20/10, new scheduling conference will be convened. If a motion to dismiss is filed, the parties to file a joint status report within 10 days after ruling, if any portion of the action remains pending, to advise whether a new scheduling conference should be set, by Magistrate Judge Kathleen M. Tafoya on 8/31/10.(gmssl, ) (Entered: 08/31/2010)

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 12 of 26

08/31/2010 08/31/2010 08/31/2010 09/20/2010 10/04/2010
10/04/2010 10/20/2010
10/21/2010 10/25/2010 11/05/2010 11/10/2010 12/03/2010 12/08/2010 01/12/2011 03/16/2011

73 Third Amended and Class Action COMPLAINT against Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, filed by Benjamin Hernandez, Anita Hansen, Joshua Stapen, Robin Stephens, Colorado Cross−Disability Coalition, Robert Sirowitz.(gmssl, ) (Entered: 08/31/2010)
74 Utility Setting/Resetting Deadlines/Hearings: Abercrombie & Fitch Co. answer due 9/20/2010; Abercrombie & Fitch Stores, Inc. answer due 9/20/2010; J.M. Hollister LLC answer due 9/20/2010, pursuant to the order of 8/31/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (gmssl, ) (Entered: 08/31/2010)
75 MINUTE ORDER denying as moot 35 Motion to Dismiss for Lack of Standing. Entered by Chief Judge Wiley Y. Daniel on 8/31/10. (wydcd, rrk) (Entered: 08/31/2010)
76 Renewed MOTION to Dismiss by Defendant Abercrombie & Fitch Co.. (Attachments: # 1 Memorandum in Support of Renewed Motion to Dismiss for Lack of Standing)(Ridgley, Thomas) (Entered: 09/20/2010)
77 Unopposed MOTION for Extension of Time to File Response/Reply as to 76 Renewed MOTION to Dismiss for Lack of Standing by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 10/04/2010)
78 ORDER granting 77 Motion for Extension of Time to File Response/Reply to and including Thursday, October 21, 2010 by Chief Judge Wiley Y. Daniel on 10/4/2010.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydlc4, ) (Entered: 10/04/2010)
79 Unopposed MOTION for Extension of Time to File Response/Reply as to 76 Renewed MOTION to Dismiss for Lack of Standing by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 10/20/2010)
80 ORDER granting 79 Motion for Extension of Time to File Response/Reply to and including Monday, October 25, 2010 by Chief Judge Wiley Y. Daniel on 10/21/10.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydlc4, ) (Entered: 10/21/2010)
81 RESPONSE to 76 Renewed MOTION to Dismiss for Lack of Standing filed by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Williams, Kevin) (Entered: 10/25/2010)
82 BRIEF in Support of 35 MOTION to Dismiss For Lack of Standing filed by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Knueve, Mark) (Entered: 11/05/2010)
83 NOTICE of Entry of Appearance by Andrew Christopher Montoya on behalf of Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens (Montoya, Andrew) (Entered: 11/10/2010)
84 SUPPLEMENT/AMENDMENT to 82 Brief in Support of Motion Supplemental Authority of Defendants by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Attachments: # 1 Exhibit A)(Eurich, Gregory) (Entered: 12/03/2010)
85 RESPONSE to 84 Supplement/Amendment Authority of Defendants by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Williams, Kevin) (Entered: 12/08/2010)
86 MINUTE ORDER: The Final Pretrial Conference set for January 18, 2011, is VACATED. By Magistrate Judge Kathleen M. Tafoya on 1/12/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(kmtlc1 ) (Entered: 01/12/2011)
87 MOTION for Partial Summary Judgment by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Affidavit Declaration of Amy F. Robertson, # 2 Affidavit

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 13 of 26

03/30/2011
03/31/2011 05/03/2011 05/04/2011
05/04/2011 05/11/2011 05/18/2011 05/18/2011 05/27/2011 05/31/2011 06/02/2011 06/03/2011 06/03/2011 06/08/2011

Declaration of Megan Streckewald)(Robertson, Amy) (Entered: 03/16/2011)
88 Unopposed MOTION for Extension of Time to File Response/Reply as to 87 MOTION for Partial Summary Judgment by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Attachments: # 1 Proposed Order (PDF Only) Order Granting Unopposed Motion for Extension)(Eurich, Gregory) (Entered: 03/30/2011)
89 ORDER granting 88 Motion for Extension of Time to File Response/Reply to and including Wednesday, May 11, 2011, by Chief Judge Wiley Y. Daniel on 3/31/2011.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydlc4, ) (Entered: 03/31/2011)
90 MOTION to Withdraw as Attorney for Carrie Ann Lucas by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 05/03/2011)
91 MEMORANDUM regarding 90 MOTION to Withdraw as Attorney for Carrie Ann Lucas filed by Joshua Stapen, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Colorado Cross−Disability Coalition, Robin Stephens. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 5/4/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 05/04/2011)
92 MINUTE ORDER granting 90 Motion to Withdraw as Attorney. The Clerk of Court is instructed to remove Ms. Lucas from the electronic certificate of mailing by Magistrate Judge Kathleen M. Tafoya on 05/04/11.(jjh, ) (Entered: 05/04/2011)
93 RESPONSE to 87 MOTION for Partial Summary Judgment in Opposition filed by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Attachments: # 1 Exhibit Ex A − Declaration of John Salmen, # 2 Exhibit B − Declaration of Adam Hill)(Eurich, Gregory) (Entered: 05/11/2011)
94 ORDER denying 76 Defendants' Renewed Motion to Dismiss for Lack of Standing by Chief Judge Wiley Y. Daniel on 05/18/11.(jjh, ) (Entered: 05/18/2011)
95 AMENDED ORDER re: 94 Order on Motion to Dismiss by Chief Judge Wiley Y. Daniel on 05/18/11. (jjh, ) (Entered: 05/18/2011)
96 REPLY to Response to 87 MOTION for Partial Summary Judgment filed by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Campins, Julia) (Entered: 05/27/2011)
97 STATEMENT of Interest on Plaintiffs' Motion for Partial Summary Judgment by Interested Party USA. (Sinha, Nabina) (Entered: 05/31/2011)
98 SECOND AMENDED ORDER. Ordered that Defendant's Renewed Motion to Dismiss for Lack of Standing 76 is Denied by Chief Judge Wiley Y. Daniel on 06/02/11. (jjh, ) (Entered: 06/02/2011)
99 Joint STATUS REPORT by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Williams, Kevin) (Entered: 06/03/2011)
100 MINUTE ORDER. The stay in this matter is lifted. A Scheduling Conference is set for 06/29/11, at 10:45 a.m. The parties shall submit their proposed Scheduling Order on or before 06/22/11 by Magistrate Judge Kathleen M. Tafoya on 06/03/11. (jjh, ) (Entered: 06/03/2011)
101 Unopposed MOTION for Leave to Respond to the United States of America's Statement of Interest on Plaintiffs' Motion for Partial Summary Judgment by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Attachments: # 1 Proposed Document Defendants' Response to United States of America's Statement of Interest on Plaintiffs' Motion for Partial Summary Judgment)(Eurich, Gregory) (Entered: 06/08/2011)

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 14 of 26

06/15/2011 06/17/2011 06/17/2011 06/29/2011
06/29/2011 07/13/2011 07/21/2011 08/31/2011
09/01/2011 09/01/2011
09/01/2011
09/22/2011

102 ANSWER to 73 Amended Complaint, and Defenses of Defendants to Third Amended and Class Action Complaint by Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC.(Eurich, Gregory) (Entered: 06/15/2011)
103 NOTICE of Entry of Appearance by Joseph Neguse on behalf of Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC (Neguse, Joseph) (Entered: 06/17/2011)
104 Proposed Scheduling Order by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Williams, Kevin) (Entered: 06/17/2011)
105 Minute Entry for Scheduling Conference held on 6/29/2011 before Magistrate Judge Kathleen M. Tafoya. Discovery due by 1/30/2012. Dispositive Motions due by 2/29/2012. Status Report due by 12/4/2011. Final Pretrial Conference set for 4/26/2012 09:45 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. Parties shall file a proposed briefing schedule for class certification on or before July 13, 2011. (FTR: Nick Richards) (kmtcd) (Entered: 06/29/2011)
106 SCHEDULING ORDER by Magistrate Judge Kathleen M. Tafoya on 6/29/2011. (kmtcd) (Entered: 06/29/2011)
107 Proposed Scheduling Order Briefing Schedule by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 07/13/2011)
108 ORDER re: Briefing Schedule. See Order for Details by Magistrate Judge Kathleen M. Tafoya on 07/21/11. (jjh, ) (Entered: 07/21/2011)
109 ORDER. ORDERED that Defendants Unopposed Motion for Leave to Respond to the Statement of Interest 101 is GRANTED and their responsive brief is accepted for filing. ORDERED that Plaintiffs Motion for Partial Summary Judgment, 87 , is GRANTED. Therefore the center front entrances at the Hollister stores at Park Meadows mall and Orchard Town Center mall violate Title III of the Americans with Disabilities Act by Chief Judge Wiley Y. Daniel on 08/31/11.(jjh, ) (Entered: 08/31/2011)
110 Unopposed MOTION for Extension of Time to RESPOND TO DEFENDANTS FIRST SET OF INTERROGATORIES AND FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 09/01/2011)
111 MEMORANDUM regarding 110 Unopposed MOTION for Extension of Time to RESPOND TO DEFENDANTS FIRST SET OF INTERROGATORIES AND FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS filed by Joshua Stapen, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Colorado Cross−Disability Coalition, Robin Stephens. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 9/1/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 09/01/2011)
112 MINUTE ORDER granting 110 Motion for Extension of Time to Respond to Defendants' First Set of Interrogatories and First Set of Requests for Production of Documents. Plaintiffs shall submit their responses no later than September 16, 2011. By Magistrate Judge Kathleen M. Tafoya on 9/1/11. TEXT ONLY ENTRY NO DOCUMENT ATTACHED (kmtlc1 ) Modified on 9/1/2011 to note this was a text only entry and no document is attached (jjh, ). (Entered: 09/01/2011)
113 STIPULATION Regarding Plaintiffs' Fourth Amended and Class Action Complaint by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Event changed into a Motion to Amend 73 Complaint) (Attachments: # 1 4th Amended and Class Action Complaint, # 2 Proposed Order (PDF Only))(Williams, Kevin) Modified on 9/23/2011 to change event into a motion (wjc, ). Modified on 9/23/2011 to create

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 15 of 26

09/23/2011 09/23/2011
09/23/2011 09/23/2011 09/26/2011 10/14/2011 10/14/2011 10/17/2011
10/20/2011 10/21/2011 10/24/2011 10/31/2011 11/09/2011

linkage (wjc, ). (Entered: 09/22/2011)
114 Docket Annotation re: 113 MOTION to Amend/Correct/Modify. This docket entry was modified on 9/23/2011 to change event into a motion. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED. (wjc, ) (Entered: 09/23/2011)
115 MEMORANDUM regarding 113 MOTION to Amend 73 Amended Complaint filed by Joshua Stapen, Anita Hansen, Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., Robert Sirowitz, Colorado Cross−Disability Coalition, Robin Stephens, J.M. Hollister LLC, Benjamin Hernandez. Motions referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 09/23/2011. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(wjc, ) Modified on 9/26/2011 to edit text date (wjc, ). (Entered: 09/23/2011)
116 MINUTE ORDER granting 113 Stipulation Regarding Plaintiffs' Fourth Amended and Class Action Complaint. The Clerk of Court is directed to file the Fourth Amended and Class Action Complaint (Doc. No. 113−1), by Magistrate Judge Kathleen M. Tafoya on 9/23/11.(lsw, ) (Entered: 09/23/2011)
117 Fourth AMENDED and Class Action COMPLAINT against Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, filed by Anita Hansen, Joshua Stapen, Colorado Cross−Disability Coalition.(lsw, ) (Entered: 09/23/2011)
118 Docket Annotation re: 115 Memorandum. Modified on 9/26/2011 to edit text date. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED. (wjc, ) (Entered: 09/26/2011)
119 Unopposed MOTION for Extension of Time to Regarding Class Certification Briefing by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Joshua Stapen. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 10/14/2011)
120 MEMORANDUM regarding 119 Unopposed MOTION for Extension of Time to Regarding Class Certification Briefing filed by Joshua Stapen, Anita Hansen, Colorado Cross−Disability Coalition. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 10/14/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 10/14/2011)
121 MINUTE ORDER granting 119 Motion for Extension Regarding Class Certification Briefing. The opening brief shall be filed no later than October 31, 2011; the answer brief shall be filed no later than December 1, 2011; the reply brief shall be filed no later than December 16, 2011. By Magistrate Judge Kathleen M. Tafoya on 10/17/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(kmtlc1 ) (Entered: 10/17/2011)
122 ANSWER to 117 Amended Complaint by Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC.(Knueve, Mark) (Entered: 10/20/2011)
123 MOTION for Leave to File Fifth Amended and Class Action Complaint by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Joshua Stapen. (Attachments: # 1 Fifth Amended and Class Action Complaint, # 2 Declaration of Andrew C. Montoya, # 3 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 10/21/2011)
124 MEMORANDUM regarding 123 MOTION for Leave to File Fifth Amended and Class Action Complaint filed by Joshua Stapen, Anita Hansen, Colorado Cross−Disability Coalition. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 10/24/11. Text Only Entry (wydcd, rrk) (Entered: 10/24/2011)
125 MOTION to Certify Class by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen. (Attachments: # 1 Declaration of Amy F. Robertson, # 2 Declaration of Julie Reiskin, # 3 Declaration of Julie Farrar, # 4 Declaration of Anita Hansen)(Robertson, Amy) (Entered: 10/31/2011)
126 MOTION to Compel Named Plaintiff Joshua Stapen's Deposition by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Attachments: # 1 Exhibit Exhibit A − Declaration of Mark A. Knueve)(Eurich, Gregory) (Entered: 11/09/2011)

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 16 of 26

11/09/2011 11/10/2011 11/14/2011 11/17/2011 11/21/2011 11/21/2011 11/21/2011 11/22/2011 11/22/2011
11/28/2011 11/28/2011

127 MEMORANDUM regarding 126 MOTION to Compel Named Plaintiff Joshua Stapen's Deposition filed by J.M. Hollister LLC, Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 11/9/11. Text Only Entry (wydcd, rrk) (Entered: 11/09/2011)
128 MINUTE ORDER. Plaintiffs shall respond to Defendants' Motion to Compel 126 no later than November 17, 2011. Defendants shall file their reply no later than November 24, 2011 by Magistrate Judge Kathleen M. Tafoya on 11/10/11. (jjh, ) (Entered: 11/10/2011)
129 BRIEF in Opposition to 123 MOTION for Leave to File Fifth Amended and Class Action Complaint filed by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Attachments: # 1 Declaration of Mark Knueve)(Knueve, Mark) (Entered: 11/14/2011)
130 RESPONSE to 126 MOTION to Compel Named Plaintiff Joshua Stapen's Deposition filed by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Joshua Stapen. (Attachments: # 1 Declaration of Kevin W. Williams)(Williams, Kevin) (Entered: 11/17/2011)
131 REPLY to Response to 126 MOTION to Compel Named Plaintiff Joshua Stapen's Deposition filed by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Knueve, Mark) (Entered: 11/21/2011)
132 Stipulated MOTION to Amend/Correct/Modify Scheduling Order Deadlines by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Joshua Stapen. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 11/21/2011)
133 MEMORANDUM regarding 132 Stipulated MOTION to Amend/Correct/Modify Scheduling Order Deadlines filed by J.M. Hollister LLC, Joshua Stapen, Anita Hansen, Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., Colorado Cross−Disability Coalition. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 11/21/11. Text Only Entry (wydcd, rrk) (Entered: 11/21/2011)
134 ORDER. Order granting 126 Motion to Compel Named Plaintiff Joshua Stapen's Deposition. Joshua Stapen will appear and have his deposition taken, upon service of proper and timely notice by the Defendants. The deposition will be taken on or before December 13, 2011 by Magistrate Judge Kathleen M. Tafoya on 11/22/11.(jjh, ) (Entered: 11/22/2011)
135 MINUTE ORDER granting 132 Motion Regarding Scheduling Order Deadlines. Plaintiffs' expert report deadline is extended to December 14, 2011; Defendants shall file their response to Plaintiffs' Motion for Class Certification the later of either a date fourteen days after Joshua Stapen's deposition is taken or a date fourteen days after the court rules on Plaintiffs' Motion for Leave to File a Fifth Amended Class Action Complaint; Plaintiffs' Reply to Defendants' Response to Motion for Class Certification shall be filed fourteen days after Defendants' Response is served; the deadline to serve written discovery is extended to January 11, 2012; Defendants' expert report deadline is extended to January 16, 2012; the discovery cutoff is extended to February 13, 2012; the dispositive motions deadline is extended to March 14, 2012. Additionally, the Final Pretrial Conference is reset to May 15, 2012 at 9:45 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. By Magistrate Judge Kathleen M. Tafoya on 11/22/11. Text Only Entry(kmtlc1 ) (Entered: 11/22/2011)
136 Unopposed MOTION for Extension of Time to File Response/Reply as to 123 MOTION for Leave to File Fifth Amended and Class Action Complaint by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Joshua Stapen. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 11/28/2011)
137 MEMORANDUM regarding 136 Unopposed MOTION for Extension of Time to File Response/Reply as to 123 MOTION for Leave to File Fifth Amended and Class Action ComplaintUnopposed MOTION for Extension of Time to File Response/Reply as to 123 MOTION for Leave to File Fifth Amended and Class Action Complaint filed by Joshua Stapen, Anita Hansen, Colorado Cross−Disability Coalition. Motion referred to

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 17 of 26

11/28/2011 12/02/2011 12/02/2011 12/02/2011 12/02/2011 12/05/2011
12/05/2011 12/05/2011 12/05/2011 12/06/2011 12/08/2011 12/08/2011 12/14/2011 12/15/2011

Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 11/28/11. Text Only Entry (wydcd, rrk) (Entered: 11/28/2011)
138 MINUTE ORDER granting 136 Motion for Extension Regarding Reply to Opposition to Plaintiffs' Motion for Leave to File Fifth Amended and Class Action Complaint. Plaintiffs shall file their reply no later than December 8, 2011. By Magistrate Judge Kathleen M. Tafoya on 11/28/11. Text Only Entry(kmtlc1 ) (Entered: 11/28/2011)
139 MOTION to Withdraw as Counsel by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Joshua Stapen. (Attachments: # 1 Declaration of Kevin W. Williams, # 2 Exhibit A, # 3 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 12/02/2011)
140 MOTION to Expedite Ruling by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Joshua Stapen. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 12/02/2011)
141 MEMORANDUM regarding 139 MOTION to Withdraw as Counsel filed by Joshua Stapen, Anita Hansen, Colorado Cross−Disability Coalition. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 12/2/11. Text Only Entry (wydcd, rrk) (Entered: 12/02/2011)
142 MEMORANDUM regarding 140 MOTION to Expedite Ruling filed by Joshua Stapen, Anita Hansen, Colorado Cross−Disability Coalition. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 12/2/11. Text Only Entry (wydcd, rrk) (Entered: 12/02/2011)
143 MINUTE ORDER Setting Hearing on Motion: Motion Hearing set for 12/8/2011 at 10:15 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya regarding 139 MOTION to Withdraw as Counsel. Defendants shall file a response no later than 12:00 p.m. on 12/7/2011. No reply will be accepted. By Magistrate Judge Kathleen M. Tafoya on 12/5/11. Text Only Entry (kmtlc1 ) (Entered: 12/05/2011)
144 MINUTE ORDER granting 140 Plaintiffs' Motion for Expedited Ruling Regarding Plaintiffs' Motion to Withdraw as Counsel. The Motion to Withdraw will be ruled on at the hearing set for 12/8/2011. By Magistrate Judge Kathleen M. Tafoya on 12/5/11. Text Only Entry(kmtlc1 ) (Entered: 12/05/2011)
145 Joint STATUS REPORT by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Joshua Stapen. (Williams, Kevin) (Entered: 12/05/2011)
146 REPLY to Response to 123 MOTION for Leave to File Fifth Amended and Class Action Complaint filed by Plaintiffs Colorado Cross−Disability Coalition, Anita Hansen, Joshua Stapen. (Williams, Kevin) (Entered: 12/05/2011)
147 BRIEF in Opposition to 139 MOTION to Withdraw as Counsel filed by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC. (Knueve, Mark) (Entered: 12/06/2011)
148 MINUTE ENTRY for Motion Hearing proceedings held before Magistrate Judge Kathleen M. Tafoya on 12/8/2011. Granting 123 Motion for Leave. The Clerk is directed to file the Complaint currently attached as Exhibit 1 to plaintiffs motion 123. Granting 139 Motion to Withdraw. (FTR: B. Abiakam) (babia) (Entered: 12/09/2011)
149 FIFTH AMENDED COMPLAINT and Class Action Complaint against Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, filed by Anita Hansen, Colorado Cross−Disability Coalition, Julie Farrar.(jjh, ) (Entered: 12/09/2011)
150 Unopposed MOTION to Continue Scheduling Order Deadlines by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Williams, Kevin) (Entered: 12/14/2011)
151 MEMORANDUM regarding 150 Unopposed MOTION to Continue Scheduling Order Deadlines filed by Julie Farrar, Anita Hansen, Colorado Cross−Disability Coalition. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 12/15/11. Text Only Entry (wydcd, rrk) (Entered: 12/15/2011)

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 18 of 26

12/19/2011
12/19/2011 12/21/2011 12/23/2011 01/11/2012 01/27/2012 01/31/2012 01/31/2012 04/09/2012 04/20/2012
04/27/2012 04/30/2012 05/03/2012 05/10/2012

152 ORDER granting in part 150 Motion to Continue Scheduling Order Deadlines The deadline for Defendants Response to the Motion for Class Certification is extended to December 28, 2011. The deadline for Plaintiffs Reply to the Motion for Class Certification is extended to January 3, 2012. All other deadlines, including the deadlines for the expert disclosures, are STAYED pending ruling on the Motion for Class Certification. The parties shall file a status report within ten days of ruling on the Motion for Class Certification to advise what deadlines should be set and to set forth a proposed schedule for the deadlines by Magistrate Judge Kathleen M. Tafoya on 12/19/11.(jjh, ) (Entered: 12/19/2011)
153 Unopposed MOTION to Reset Deadline to File Reply in Support of Motion for Class Certification by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 12/19/2011)
154 ORDER granting 153 Motion to Reset to and including Wednesday, January 11, 2012, by Chief Judge Wiley Y. Daniel on 12/21/2011. Text Only Entry(wydlc4, ) (Entered: 12/21/2011)
155 BRIEF in Opposition to 125 MOTION to Certify Class filed by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc.. (Attachments: # 1 Affidavit, # 2 Affidavit)(Knueve, Mark) (Entered: 12/23/2011)
156 REPLY to Response to 125 MOTION to Certify Class filed by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Supplemental Declaration of Julie Farrar, # 2 Declaration of Caitlin R. Anderson)(Robertson, Amy) (Entered: 01/11/2012)
157 MINUTE ORDER Motion Hearing on 125 Plaintiffs' Motion for Class Certification is set for 3/28/2012 09:00 AM in Courtroom A1002 before Chief Judge Wiley Y. Daniel. Entered by Chief Judge Wiley Y. Daniel on 1/27/12. (wydcd, rrk) (Entered: 01/27/2012)
158 Unopposed MOTION to Continue Hearing on Plaintiffs' Motion for Class Certification by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 01/31/2012)
159 MINUTE ORDER granting 158 Motion to Continue. Motion Hearing set for 4/9/2012 02:00 PM in Courtroom A1002 before Chief Judge Wiley Y. Daniel, entered by Chief Judge Wiley Y. Daniel on 1/31/12. (wydcd, rrk) (Entered: 01/31/2012)
160 MINUTE ENTRY for proceedings held before Chief Judge Wiley Y. Daniel. Granting 125 Motion to Certify Class; Motion Hearing held on 4/9/2012. Written order shall follow. (Court Reporter: Therese Lindblom) (wydcd, rrk) (Entered: 04/10/2012)
161 ORDER. For the reasons set forth herein, Defendants' various objections to certification are denied, and Plaintiffs' Motion for Class Certification 125 is GRANTED. Plaintiffs' Anita Hansen and Julie Farrar are hereby certified as representatives of a nationwide class of individuals seeking injunctive relief, as defined on page 2 of the Order by Chief Judge Wiley Y. Daniel on 04/20/12. (jjhsl, ) (Entered: 04/20/2012)
162 MOTION for Summary Judgment and Entry of Injunction and Entry of Judgment by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Order of Final Judgment, # 2 Proposed Order of Permanent Injunction)(Williams, Kevin) (Entered: 04/27/2012)
163 Joint STATUS REPORT by Defendants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., J.M. Hollister LLC, Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Williams, Kevin) (Entered: 04/30/2012)
164 MOTION for Summary Judgment by Defendant Abercrombie & Fitch Stores, Inc.. (Attachments: # 1 Affidavit, # 2 Deposition Excerpts)(Knueve, Mark) (Entered: 05/03/2012)
165 MINUTE ORDER: The Final Pretrial Conference set for May 15, 2012, is VACATED. By Magistrate Judge Kathleen M. Tafoya on 5/10/12. Text Only Entry

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 19 of 26

05/21/2012 05/21/2012
05/21/2012 05/22/2012 05/22/2012 06/01/2012
06/01/2012 06/01/2012
06/01/2012
06/04/2012
06/05/2012 06/13/2012

(kmtlc1 ) (Entered: 05/10/2012)
166 STIPULATION Stipulated Modification of Discovery Stay by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Robertson, Amy) (Entered: 05/21/2012)
167 BRIEF in Opposition to 162 MOTION for Summary Judgment and Entry of Injunction and Entry of Judgment filed by Defendant Abercrombie & Fitch Co.. (Attachments: # 1 Affidavit of Michael Bondy (Part 1), # 2 Affidavit of Michael Bondy (Part 2), # 3 Affidavit of Michael Bondy (Part 3), # 4 Affidavit of Gregory A. Eurich (Part 1), # 5 Affidavit Gregory A. Eurch (Part 2), # 6 Deposition Excerpts of Anita L. Hansen, # 7 Deposition Excerpts of Julie Farrar)(Knueve, Mark) (Entered: 05/21/2012)
168 MOTION for Extension of Time to Plaintiffs' Motion for Amended Briefing Schedule by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 05/21/2012)
169 ORDER granting 168 Motion to Amended Briefing Schedule by Chief Judge Wiley Y. Daniel on 05/22/12.(jjhsl, ) (Entered: 05/22/2012)
170 ORDER This matter is before the court on Stipulated Modifation (sic) of Discovery Stay; the Stipulated Modifation (sic) of Discovery Stay Doc. No. 166 , is DENIED. There is no stay as to which such a modification may be directed, by Magistrate Judge Kathleen M. Tafoya on 5/22/2012. (ervsl, ) (Entered: 05/22/2012)
171 BRIEF in Opposition to 164 MOTION for Summary Judgment Plaintiffs' Opposition to Defendants' Motion for Summary Judgment Or, in the Alternative, to Vacate August 31, 2011 Order; and Plaintiffs' Reply in Support of Motion for Summary Judgment filed by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Order (PDF Only), # 2 Declaration of Amy F. Robertson)(Robertson, Amy) (Entered: 06/01/2012)
172 RESTRICTED DOCUMENT − Level 1: by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen.. (Attachments: # 1 Exhibit 7, Part 2 to Robertson Declaration, # 2 Exhibit 7, Part 3 to Robertson Declaration, # 3 Exhibit 7, Part 4 to Robertson Declaration)(Robertson, Amy) (Entered: 06/01/2012)
173 MOTION to Amend/Correct/Modify 162 MOTION for Summary Judgment and Entry of Injunction and Entry of Judgment Plaintiffs' Motion to Amend and Supplement Motion for Summary Judgment, Entry of Injunction, and Entry of Judgment by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 06/01/2012)
174 Exhibit 7 in Support of [171−2] Declaration of Amy F. Robertson BRIEF in Opposition to 164 MOTION for Summary Judgment Plaintiffs' Opposition to Defendants' Motion for Summary Judgment Or, in the Alternative, to Vacate August 31, 2011 Order; and Plaintiffs' Reply in Support of Motion for Summary Judgment by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen, Robert Sirowitz. (Public entry for restricted document 172 filed on 06/01/12) Text only entry. (jjhsl, ) Modified on 6/4/2012 to correct text (jjhsl, ). Modified on 6/4/2012 (jjhsl, ). (Entered: 06/01/2012)
175 MINUTE ORDER re: 172 Restricted Document − Level 1, filed by Julie Farrar, Anita Hansen, Colorado Cross−Disability Coalition. Neither party has filed a motion to restrict access to this document. Consistent with D.C.COLO.LCivR 7.2D this document shall retain a Level 1 restriction until 6/15/2012. If no motion to restrict access if filed by that date, the document will be unrestricted on 6/18/2012. By Magistrate Judge Kathleen M. Tafoya on 6/4/2012. Text Only Entry (kmtlc2) (Entered: 06/04/2012)
176 ORDER granting 173 Motion to Amend/Correct/Modify by Chief Judge Wiley Y. Daniel on 6/5/2012. Text Only Entry(wydlc4, ) (Entered: 06/05/2012)
177 MOTION for Leave to Restrict Document by Defendant Abercrombie & Fitch Stores, Inc.. (Attachments: # 1 Affidavit of Brandon Tonniges)(Knueve, Mark) (Entered: 06/13/2012)

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 20 of 26

06/13/2012 06/18/2012 06/20/2012 06/26/2012 06/26/2012
06/26/2012 06/27/2012 07/05/2012 07/06/2012 07/09/2012 10/10/2012 01/10/2013 01/22/2013 01/22/2013 01/24/2013

178 MEMORANDUM regarding 177 MOTION for Leave to Restrict Document filed by Abercrombie & Fitch Stores, Inc. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 6/13/12. Text Only Entry (wydcd, rrk) (Entered: 06/13/2012)
179 BRIEF in Opposition to 162 MOTION for Summary Judgment and Entry of Injunction and Entry of Judgment filed by Defendant Abercrombie & Fitch Co.. (Attachments: # 1 Affidavit of Mark A. Knueve, # 2 Affidavit of Michael Bondy)(Knueve, Mark) (Entered: 06/18/2012)
180 MINUTE ORDER granting 177 Motion for Leave to Restrict. Document 172 shall remain restricted at Level 1 until further order of the court. By Magistrate Judge Kathleen M. Tafoya on 6/20/12. Text Only Entry(kmtlc1 ) (Entered: 06/20/2012)
181 STATEMENT of Interest on the Parties' Motions for Summary Judgment by Interested Party USA. (Sinha, Nabina) (Entered: 06/26/2012)
182 MOTION for Leave to File Two−Page Reply Brief re: 171 Brief in Opposition to Motion, 179 Brief in Opposition to Motion, by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Document − Reply Brief in Support of Amended Motion for Summary Judgment, # 2 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 06/26/2012)
183 MINUTE ORDER granting 182 Plaintiff's Motion for Leave to File Two−Page Reply Brief. Plaintiff may file the reply brief attached to their motion, by Chief Judge Wiley Y. Daniel on 6/26/12.(gmssl, ) (Entered: 06/27/2012)
184 REPLY to Response to 162 MOTION for Summary Judgment and Entry of Injunction and Entry of Judgment − Plaintiffs' Reply Brief in Support of Amended Motion for Summary Judgment filed by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Robertson, Amy) (Entered: 06/27/2012)
185 Unopposed MOTION to Supplement 181 Statement of Interest by Defendant Abercrombie & Fitch Co.. (Attachments: # 1 Proposed Document Defendants' Brief in Response to USA's Statement of Interest)(Knueve, Mark) (Entered: 07/05/2012)
186 Minute ORDER granting 185 Defendants' Unopposed Motion for Leave to Respond to the United States of America's Statement of Interest on the Parties' Motion[s] for Summary Judgment, by Chief Judge Wiley Y. Daniel on 7/6/12.(lygsl, ) (Entered: 07/06/2012)
187 RESPONSE to 181 Statement of Interest of USA on the Parties Motions for Summary Judgment by Defendant Abercrombie & Fitch Co.. (Knueve, Mark) (Entered: 07/09/2012)
188 NOTICE of Change of Address/Contact Information by Julia Campins (Campins, Julia) (Entered: 10/10/2012)
189 MINUTE ORDER. A hearing on the two pending motions is set for Thursday, January 24, 2013 at 10:00 a.m. in Courtroom A1002 before Judge Wiley Y. Daniel by Judge Wiley Y. Daniel on 01/10/13. (jjhsl, ) (Entered: 01/10/2013)
190 NOTICE Plaintiffs' Notice Concerning Cases They May Discuss During the January 24, 2013 Oral Argument by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen (Robertson, Amy) (Entered: 01/22/2013)
191 NOTICE of Entry of Appearance by Timothy Patrick Fox on behalf of Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen (Fox, Timothy) (Entered: 01/22/2013)
192 Courtroom Minutes for Motion for Summary Judgment 162 and 164 held before Judge Wiley Y. Daniel held on 1/24/2013. ORDERED: Plaintiffs' Motion for Summary Judgment and Entry of Injunction and Entry of Judgment 162 , is GRANTED. ORDERED: Defendants' Motion for Summary Judgment or, in the Alternative, to Vacate August 31, 2011 Order 164 , is DENIED. ORDERED that Plaintiffs shall file a proposed order addressing both ECF Doc. Nos. 162 and 164 with the Court not later than Friday, February 8, 2013. ORDERED that within 45 days of today's date, the parties shall meet and confer to determine if they can resolve this case with a settlement or reach an agreement on the remedy/remedies subject to the Defendants

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 21 of 26

01/25/2013 02/04/2013 02/04/2013 02/13/2013 02/14/2013 02/27/2013 02/28/2013 03/07/2013
03/15/2013 03/15/2013
05/03/2013 05/17/2013 05/22/2013 05/24/2013

maintaining whatever legal rights they choose to maintain Court Reporter: Tammy Hoffschildt. (jjhsl, ) (Entered: 01/24/2013)
193 Exhibits in Support Plaintiffs' Submission of Photographs Tendered During Hearing by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Robertson, Amy) (Entered: 01/25/2013)
194 Unopposed MOTION for Extension of Time to File Proposed Order by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 02/04/2013)
195 ORDER granting 194 Motion for Extension of Time up to and including February 15, 2013 by Judge Wiley Y. Daniel on 2/4/2013. Text Only Entry(wydlc2, ) (Entered: 02/04/2013)
196 Proposed Findings of Fact Proposed Order on Motions for Summary Judgment, Final Judgment, and Entry of Injunction by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Robertson, Amy) (Entered: 02/13/2013)
197 OBJECTIONS to 196 Proposed Findings of Fact ; Defendants' Objection to [Proposed] Order on Motion for Summary Judgment, Final Judgment, and Entry of Injunction by Defendant Abercrombie & Fitch Co.. (Knueve, Mark) (Entered: 02/14/2013)
198 Unopposed MOTION for Extension of Time to Meet and Confer by Defendant Abercrombie & Fitch Co.. (Knueve, Mark) (Entered: 02/27/2013)
199 ORDER granting 198 Motion for Extension of Time to meet and confer up to and including March 15, 2013 by Judge Wiley Y. Daniel on 2/28/13. Text Only Entry(wydlc2, ) (Entered: 02/28/2013)
200 ORDER. ORDERED that Plaintiffs' Motion for Summary Judgment, Entry of Injunction, and Entry of Judgment, filed April 27, 2012 162 is GRANTED. Defendants' Motion for Summary Judgment or, In the Alternative, To Vacate August 31, 2011 Order 164 is DENIED. ORDERED that the parties shall meet and confer before March 15, 2013, to attempt to craft an injunction/remedy that is mutually agreeable to both parties. If the parties can reach agreement on the contents of a proposed injunction, they shall jointly file the proposed injunction not later than April 19, 2013. If the parties are not able to reach agreement, Plaintiffs shall file a proposed injunction and Defendants shall have 15 days to respond by Judge Wiley Y. Daniel on 03/07/13. (jjhsl, ) (Entered: 03/07/2013)
201 Joint MOTION for Order to further continue settlement negotiations by Defendant Abercrombie & Fitch Co.. (Knueve, Mark) (Entered: 03/15/2013)
202 ORDER granting 201 Motion Regarding Meet and Confer. The parties are hereby granted until May 3, 2013 to report back to this Court regarding their efforts to meet and confer. If the parties are unable to come to a resolution, plaintiffs will file with the Court their proposed injunction on June 7, 2013, and defendants shall have fifteen days to respond. by Judge Wiley Y. Daniel on 3/15/13. Text Only Entry(wydlc2, ) (Entered: 03/15/2013)
203 NOTICE Plaintiffs' Submission of Proposed Permanent Injunction by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen (Attachments: # 1 Proposed Permanent Injunction)(Robertson, Amy) (Entered: 05/03/2013)
204 REPLY to 203 Notice (Other) Plaintiffs' Submission of Proposed Permanent Injunction by Defendant Abercrombie & Fitch Co.. (Attachments: # 1 Affidavit Michael Bondy)(Knueve, Mark) (Entered: 05/17/2013)
205 MINUTE ORDER. A hearing on Plaintiffs' Proposed Permanent Injunction (ECF No. 203) is set for Friday, August 16, 2013 at 10:00 a.m. before Judge Wiley Y. Daniel by Judge Wiley Y. Daniel on 05/22/13. (jjhsl, ) (Entered: 05/22/2013)
206 Unopposed MOTION for Leave to FILE REPLY BRIEF AND REQUEST FOR CLARIFICATION OF HEARING WITH ALTERNATIVE REQUEST FOR DISCOVERY 203 Notice (Other), 204 Reply by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 REPLY BRIEF AND

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 22 of 26

05/30/2013 08/07/2013 08/14/2013
08/16/2013 08/20/2013 08/21/2013 09/03/2013
09/05/2013 09/09/2013 09/09/2013 09/09/2013

REQUEST FOR CLARIFICATION OF HEARING WITH ALTERNATIVE REQUEST FOR DISCOVERY, # 2 [REVISED PROPOSED] PERMANENT INJUNCTION)(Robertson, Amy) (Entered: 05/24/2013)
207 ORDER. ORDERED that Plaintiffs= Unopposed Motion for Leave to File Reply Brief and Request for Clarification of Hearing with Alternative Request for Discovery 206 is GRANTED to the extent that I will accept Plaintiffs Reply Brief for filing. All other requests are DENIED by Judge Wiley Y. Daniel on 05/30/13.(jjhsl, ) (Entered: 05/30/2013)
208 NOTICE of Change of Address/Contact Information by Amy Farr Robertson (Robertson, Amy) (Entered: 08/07/2013)
209 TRANSCRIPT of Motions Hearing held on January 24, 2013 before Judge Daniel. Pages: 1−55. <br><br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 11/15/2013. (Hoffschildt, Tamara) (Entered: 08/14/2013)
210 MINUTE ENTRY for In Court Hearing held on 8/16/2013 proceedings held before Judge Wiley Y. Daniel. Court Reporter: Tammy Hoffschildt. (wydcd, rrk) (Entered: 08/20/2013)
211 PERMANENT INJUNCTION and Administrative Closure of Case by Judge Wiley Y. Daniel on 08/20/13. (jjhsl, ) Modified on 8/20/2013 to correct title (jjhsl, ). (Entered: 08/20/2013)
212 NOTICE of Submission of Draft Judgment by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen (Attachments: # 1 Judgment)(Robertson, Amy) (Entered: 08/21/2013)
213 TRANSCRIPT of Motions Hearing held on August 16, 2013 before Judge Daniel. Pages: 1−54. <br><br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 12/5/2013. (Hoffschildt, Tamara) (Entered: 09/03/2013)
214 FINAL JUDGMENT by Clerk on 09/05/13. Approved as to Form by Senior Judge Wiley Y. Daniel (jjhsl, ) (Entered: 09/05/2013)
215 Unopposed MOTION for Extension of Time to Submit Motion for Attorneys' Fees by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 09/09/2013)
216 NOTICE OF APPEAL as to 214 Judgment; 98 ; 109 ; 161 200 and 211 by Defendants, Abercrombie & Fitch So., Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC (Filing fee $ 455, Receipt Number 1082−3525243) (Knueve, Mark) (Modified on 9/10/2013 to add filers and linkage) (dbrow, ). (Entered: 09/09/2013)
217 MOTION to Stay Injunctive Relief Pending Appeal by Defendant Abercrombie & Fitch Stores, Inc.. (Knueve, Mark) (Entered: 09/09/2013)

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 23 of 26

09/09/2013 09/10/2013
09/11/2013 09/19/2013 09/20/2013 09/20/2013 09/30/2013 10/07/2013 10/08/2013 10/09/2013
10/10/2013 10/25/2013
10/25/2013 11/08/2013
11/11/2013 11/15/2013 12/02/2013 12/03/2013

218 ORDER granting 215 Motion for Extension of Time up to and including October 18, 2013 by Judge Wiley Y. Daniel on 9/9/13. Text Only Entry(wydlc2, ) (Entered: 09/09/2013)
219 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 216 Notice of Appeal, filed by Abercrombie & Fitch Stores, Inc. to the U.S. Court of Appeals. ( Retained Counsel, Fee paid,) (Attachments: # 1 Docket Sheet, # 2 Preliminary Record)(dbrow, ) (Entered: 09/10/2013)
220 USCA Case Number 13−1377 for 216 Notice of Appeal, filed by Abercrombie & Fitch Stores, Inc.. (dbrow, ) (Entered: 09/11/2013)
221 Proposed Bill of Costs by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Stipulation Taxation of Costs)(Williams, Kevin) (Entered: 09/19/2013)
222 Costs Taxed in amount of $ 22,165.92 against defendant (trlee, ) (Entered: 09/20/2013)
223 AMENDED Costs Taxed in amount of $ 602.20 against defendant (trlee, ) (Entered: 09/20/2013)
224 BRIEF in Opposition to 217 MOTION to Stay Injunctive Relief Pending Appeal filed by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Campins, Julia) (Entered: 09/30/2013)
225 BRIEF in Support of 217 MOTION to Stay Injunctive Relief Pending Appeal filed by Defendant Abercrombie & Fitch Co.. (Knueve, Mark) (Entered: 10/07/2013)
226 LETTER TO USCA and all counsel certifying the record is complete as to 216 Notice of Appeal, filed by Abercrombie & Fitch Stores, Inc. ( Appeal No. 13−1377) Text Only Entry (dbrow, ) (Entered: 10/08/2013)
227 Unopposed MOTION for Extension of Time to Submit Motion for Attorneys' Fees by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 10/09/2013)
228 ORDER granting 227 Motion for Extension of Time up to and including October 31, 2013 by Judge Wiley Y. Daniel on 10/10/13. Text Only Entry(wydlc2, ) (Entered: 10/10/2013)
229 Unopposed MOTION for Extension of Time to Submit Motion for Attorneys' Fees by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 10/25/2013)
230 ORDER granting 229 Motion for Extension of Time up to and including November 8, 2013 by Judge Wiley Y. Daniel on 10/25/13. Text Only Entry(wydlc2, ) (Entered: 10/25/2013)
231 MOTION for Attorney Fees < by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Declaration of Amy F. Robertson, # 2 Declaration of Kevin W. Williams, # 3 Declaration of Darold Killmer)(Robertson, Amy) Modified on 1/6/2014 (jjhsl, ). (Entered: 11/08/2013)
232 NOTICE of Submission of Supplemental Material in Opposition to Defendants' Motion to Stay Injunctive Relief Pending Appeal by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen (Robertson, Amy) (Entered: 11/11/2013)
233 ORDER denying 217 Motion to Stay Injunctive Relief Pending Appeal by Judge Wiley Y. Daniel on 11/15/13.(jjhsl, ) (Entered: 11/15/2013)
234 BRIEF in Opposition to 231 MOTION for Attorney Fees and Costs filed by Defendant Abercrombie & Fitch Co.. (Attachments: # 1 Affidavit Mark A. Knueve, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Knueve, Mark) (Entered: 12/02/2013)
235 MINUTE ORDER Setting Hearing on MOTION for Attorney Fees 231 for 2/12/2014 10:00 AM before Judge Wiley Y. Daniel by Judge Wiley Y. Daniel on 12/03/13. (jjhsl, ) (Entered: 12/03/2013)

Case: 1:09-cv-2757 As of: 10/20/2017 10:29 AM MDT 24 of 26

12/11/2013 12/12/2013 12/30/2013 12/31/2013 01/06/2014 01/06/2014 01/06/2014 02/12/2014
02/20/2014 02/26/2014
03/06/2014 03/11/2014 03/14/2014 08/29/2014

236 Unopposed MOTION for Extension of Time to by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 12/11/2013)
237 ORDER granting 236 Motion for Extension of Time to file Reply up to and including December 30, 2013 by Judge Wiley Y. Daniel on 12/12/13. Text Only Entry(wydlc2, ) (Entered: 12/12/2013)
238 Unopposed MOTION for Extension of Time to File Response/Reply as to 231 MOTION for Attorney Fees by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Proposed Order (PDF Only))(Williams, Kevin) (Entered: 12/30/2013)
239 ORDER granting 238 Motion for Extension of Time to File Reply up to and including January 6, 2014 by Judge Wiley Y. Daniel on 12/31/2013. Text Only Entry(wydlc2, ) (Entered: 12/31/2013)
240 STRICKEN REPLY to Response to 231 MOTION for Attorney Fees filed by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Williams, Kevin) Modified on 1/6/2014 Pursuant to the MO of 01/06/14 (jjhsl, ). (Entered: 01/06/2014)
241 MINUTE ORDER striking 240 Reply Brief in Support of Motion for Attorneys Fees and Costs by Judge Wiley Y. Daniel on 01/06/14.(jjhsl, ) Modified on 1/6/2014 to correct linkage (jjhsl, ). (Entered: 01/06/2014)
242 REPLY to Response to 231 MOTION for Attorney Fees filed by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Affidavit of James L.E. Terry, # 2 Affidavit of Eric McSwain, # 3 Affidavit of Amy F. Robertson)(Williams, Kevin) (Entered: 01/06/2014)
243 MINUTE ENTRY for proceedings held before Judge Wiley Y. Daniel: Motion Hearing held on 2/12/2014. Granting as outlined on the record 231 Motion for Attorney Fees. Court indicates a written order shall follow. Parties shall file a joint statement, indicating their respective positions on Plaintiffs request for additional attorneys fees for the period from August, 2013 to the present, not later than Monday, February 24, 2014. Court Reporter: Mary George. (wydcd, rrk) (Entered: 02/18/2014)
244 STATEMENT re 243 Order on Motion for Attorney Fees,, Motion Hearing, Joint Statement Re: Additional Attorneys' Fees For the Period August 31, 2013 to Present by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Robertson, Amy) (Entered: 02/20/2014)
245 ORDER GRANTED IN PART AND DENIED IN PART 231 MOTION for Attorney Fees filed by Julie Farrar, Anita Hansen, Colorado Cross−Disability Coalition. Pursuant to the ADA, 42 U.S.C. § 12205, Plaintiffs are awarded attorney fees in the amount of $370,352.57 and costs in the amount of $20,342.51. It is FURTHER ORDERED that based on the parties Joint Statement Re: Additional Attorneys Fees for the Period August 31, 2013 to Present ECF No. 244 , I add $14,500 to the amount ordered above, for a total award of $384,852.57 in attorney fees and costs in the amount of $20,342.51, by Judge Wiley Y. Daniel on 2/26/2014. (evana, ) (Entered: 02/26/2014)
246 STIPULATION re 245 Order,, Staying Execution Pending Disposition of Defendants' Appeal by Defendant Abercrombie & Fitch Co.. (Knueve, Mark) (Entered: 03/06/2014)
247 ORDER re: 246 Agreed Stipulation Staying Execution Pending Dsipositon of Defendants' Appeal, by Judge Wiley Y. Daniel on 3/11/2014. (evana, ) (Entered: 03/11/2014)
248 ORDER of USCA as to 216 Notice of Appeal, filed by Abercrombie & Fitch Stores, Inc. Upon further consideration, the district courts order dated August 20, 2013 granting injunctive relief is stayed pending further order of this court. (USCA Case No. 13−1377) (dbrow, ) (Entered: 03/17/2014)
249 USCA OPINION as to 216 Notice of Appeal, filed by Abercrombie & Fitch Stores, Inc. : Affirmed in Part, Reversed in Part, Vacated and Remanded. (USCA Case No.

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09/02/2014 10/01/2014 10/31/2014 11/12/2014
11/24/2014 04/03/2015
04/06/2015
04/06/2015 04/08/2015 04/17/2015
09/21/2015 09/24/2015

13−1377) (This document is not the Mandate) (dbrow, ) (Entered: 09/19/2014)
250 USCA JUDGMENT as to 216 Notice of Appeal, filed by Abercrombie & Fitch Stores, Inc. : Affirmed in Part, Reversed in Part, Vacated and Remanded; (USCA Case No. 13−1377) (This document is not the Mandate) (dbrow, ) (Entered: 09/19/2014)
251 MINUTE ORDER re: 250 USCA Judgment, the parties shall file a joint status report not later than October 31, 2014 indicating any further action to be taken by this Court on remand. Status Report due by 10/31/2014, by Judge Wiley Y. Daniel on 10/1/2014. (evana, ) (Entered: 10/01/2014)
252 Joint STATUS REPORT by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Robertson, Amy) (Entered: 10/31/2014)
253 MINUTE ORDER Upon reviewing the Joint Status Report ECF No. 252 , filed October 31, 2014, I agree with and adopt as an order the Defendants position that after the Tenth Circuit has ruled and after mandate has issued, the parties shall meet and confer and submit to the Court their positions as to whether the case can proceed, and if so, how. (ECF No. 252 at 3). By Judge Wiley Y. Daniel on 11/12/2014. (evana, ) (Entered: 11/12/2014)
256 MANDATE of USCA as to 249 USCA Opinion, 250 USCA Judgment, 216 Notice of Appeal, filed by Abercrombie & Fitch Stores, Inc. : (USCA Case No. 13−1377) (evana, ) (Entered: 04/06/2015)
254 MOTION for Hearing/Conference Preliminary Approval of Class Action Settlement Agreement and for Fairness Hearing by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Attachments: # 1 Affidavit Declaration of Amy F. Robertson, # 2 Exhibit 1: Settlement Agreement, # 3 Exhibit 2: Proposed Notice to Class)(Williams, Kevin) (Entered: 04/03/2015)
255 VACATED MINUTE ORDER On April 3, 2015, the Plaintiffs filed an Unopposed Motion for Preliminary Approval of Class Action Settlement Agreement and for Fairness Hearing ECF No. 254 . However, I note that this matter was appealed to the Tenth Circuit Court of Appeals, and a mandate has yet to issue. Accordingly, I order the parties to file a joint statement as to the status of the appeal and whether I have jurisdiction to entertain the pending motion, by Judge Wiley Y. Daniel on 4/6/2015. (evana, ) (Modified on 4/6/2015 Vacated pursuant to the Filing of the 256 Mandate and 257 Minute Order)(evana, ). (Entered: 04/06/2015)
257 MINUTE ORDER Pursuant to the filing of the 256 USCA Mandate, the 255 Minute Order of 4/6/2015 is Vacated, by Judge Wiley Y. Daniel on 4/6/2015. Text Only Entry (evana, ) (Entered: 04/06/2015)
258 Exhibits in Support of 254 MOTION for Hearing/Conference Preliminary Approval of Class Action Settlement Agreement and for Fairness Hearing Proposed Order by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen, Benjamin Hernandez, Robert Sirowitz, Joshua Stapen, Robin Stephens. (Williams, Kevin) (Entered: 04/08/2015)
259 ORDER Granting 254 Plaintiffs Unopposed Motion for Preliminary Approval of Class Action Settlement Agreement and for Fairness Hearing. IT IS FURTHER ORDERED that Plaintiffs shall provide notice to the class members by means of the proposed plan and form of notice on or before May 18, 2015. Further, this Court will hold a Fairness hearing on Thursday, September 24, 2015 at 10:00 a.m., by Judge Wiley Y. Daniel on 4/17/2015.(evana, ) (Entered: 04/17/2015)
260 Unopposed MOTION for Final Approval of Class Action Settlement Agreement and Award of Attorneys' Fees, SETTLEMENT AGREEMENT by Plaintiffs Colorado Cross−Disability Coalition, Julie Farrar, Anita Hansen. (Attachments: # 1 Haefliger Declaration)(Robertson, Amy) Modified on 9/24/2015 to convert to a motion (rkeec). (Entered: 09/21/2015)
261 MINUTE ENTRY for proceedings held before Judge Wiley Y. Daniel: In Court Hearing held on 9/24/2015. Granting 260 Motion to Certify Class. ORDERED: Counsel for Plaintiffs shall confer with counsel for Defendants and submit a form of order not later than Wednesday, September 30, 2015. Court Reporter: Mary George.

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09/29/2015

(rkeec) (Entered: 09/25/2015)
262 ORDER Granting Plaintiff's 260 Unopposed Motion for Final Approval of Class Action Settlement Agreement and Awarding attorneys' Fees, by Judge Wiley Y. Daniel on 9/29/2015. (evana, ) (Entered: 09/29/2015)