Black Friday. Buyers Beware! A few things you should know about a store defendant in one of CCDC's cases.
Black Friday. Buyers Beware!
A few things you should know about a store defendant in one of CCDC’s cases
On this Black Friday, consider this: We told you CCDC beat Abercrombie & Fitch (A&F) in the district court. Judge Daniel ordered A&F to bring at least 231 Hollister Co. stores nationwide that have an entrance, a part of the store in the front, that is completely inaccessible to customers who use wheelchairs, into ADA compliance. See Order re Injunction. A&F still refuses. They appealed. Why? A&F told the Court the inaccessible porches were part of its Hollister Co. brand, something cool that customers recognize that sets it apart from other stores. See A&F Response to Motion for Summary Judgment. The court held that A&F’s branding does not allow it to deny equal access to customers who use wheelchairs. See Order on Summary Judgment. The Court’s order requires A&F to begin making inaccessible Hollister Co. stores accessible beginning January 1, 2014, at a rate of 77 stores per year for 3 years. See Order re Injunction.
Here is the picture of the storefront Hollister Co. has used to build its brand. These “cool” structures jut out into the mall and “invite” customers to feel like they are entering a Southern California surf shack. That invitation is extended to all customers. Except those who use wheelchairs.
In between these motions and orders, the Court granted Plaintiff’s Motion for Class Certification, making the case a nationwide class action. See Order on Class Certification. The Court also granted Plaintiffs’ request that the summary judgment motion be applied to all stores with unnecessary inaccessible steps and asking for final judgment. See Order on Summary Judgment and Injunction.
A&F asked the district court to stay the injunction pending appeal. This means A&F would not need to start providing accessibility at Hollister Co. porches until after the Tenth Circuit Court of Appeals decides the appeal. Judge Daniel rejected the motion applying the required factors. The Court determined A&F did not provide any new evidence to show it would likely win on appeal, that a company like A&F would suffer little, if any harm by making the porches accessible, and that customers who use wheelchairs will continue to suffer the indignity of being denied access to Hollister Co. stores’ cool porch entrances. See Order on Stay.
Yet A&F fights on. Despite losing motion after motion. Why? Your guess is as good as ours.
While the motion for stay was pending, we discovered A&F was telling its investors and the public that it was planning on changing its Hollister storefronts during 2013. A&F never gave this information to the Court. But we did. See Plaintiffs’ Submission Of Supplemental Material In Opposition To Defendants’ Motion To Stay Injunctive Relief Pending Appeal:
Also, in the motion for stay, Abercrombie & Fitch argued that it would suffer great harm by having to “reconstruct the entrances at 231 Hollister stores around the country” and that “[b]usiness activities at the stores will be affected while entrances are torn out and reconstructed, resulting in lost sales and loss of customer goodwill.” ECF 217 at 5. While making these representations to the Court, however, Defendants were apparently planning -- for reasons unrelated to the present litigation -- to begin converting Hollister store entrances to an entirely different style in 2014. During a webcast with analysts on November 6, 2013, Senior Vice President of Marketing Craig Brommers apparently introduced a new style of storefront that will be opening in fall 2014. This image is excerpted from the PowerPoint presentation that accompanied the webcast and is available at
Funny. It looks like the porch is gone. No steps. No surf shack. A&F never provided that information to the Court. We submitted this information to the Court on November 11, 2013. Although the Court never referenced the newly acquired information, it denied A&F’s motion for stay 4 days later on November 15, 2013.
One week later, on November 22, 2013, A&F filed a motion with the appeals court asking it to stay the order as well. See Appellants’ Motion To Stay Injunctive Relief Pending Appeal. In that motion, A&F still does not mention its plans to change the Hollister Co. store entrances anyway. Instead, A&F continues to complain that making the porches accessible to customers who use wheelchairs will cost it a lot of money, “resulting in lost sales and loss of customer goodwill.” Won’t the same thing happen when A&F reveals the new design above?
So why doesn’t A&F tell the Court about its plan? Why doesn’t A&F tell the Court its old Hollister Co. branding idea that was so important is being changed? Better yet, why doesn’t A&F tell the public it is unleashing a new Hollister Co. storefront that is really cool and that will be accessible to everyone?
Happy Black Friday, all! Enjoy your shopping.