CCDC, et al. v. Abercrombie & Fitch Co., et al., 09-cv-02757-WYD-KMT (District Court); 13-1377(Tenth Circuit)
After the ADA was passed, many Hollister Co. stores were designed and constructed with separate, segregated access for customers who use wheelchairs. Hollister stores, owned by Abercrombie & Fitch, designed and constructed brand new stores with stairs at their main public entrances. Plaintiffs are CCDC and individuals who use wheelchairs who complained about these and other barriers in Colorado Hollister Co.
Defendants filed a motion to dismiss challenging Plaintiffs’ standing to bring this lawsuit. On May 18, 2011, the Court denied that motion.
On March 16, 2011, CCDC and the Colorado Plaintiffs moved for partial summary judgment saying in new construction, separate entrances for people who use wheelchairs are inherently unequal and violate the ADA. On May 31, 2011, The U.S. Department of Justice filed a Statement of Interest in support of Plaintiffs’ position. See the Statement below.
On April 9, 2012, the Court certified a nationwide class of “of all people with disabilities who use wheelchairs or electric scooters for mobility who, during the two years prior to the filing of the Complaint (Dkt. 1) in this case, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister store in the United States on the basis of disability.”
On August 31, 2011, United States District Court Judge Wiley Daniel ruled that building steps at the entrances of Hollister stores is in violation of the ADA. “Defendants have unnecessarily created a design for their brand that excludes people using wheelchairs from full enjoyment of the 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.” Defendants have requested that the Court vacate that order. Plaintiffs have requested that the Court require Hollister make all of its stores accessible to customers who use wheelchairs.
The Department of Justice issued a Statement of Interest in support of Plaintiffs.
On January 24, 2013, the court held a hearing on the remaining pending motions for summary judgment. The court granted plaintiffs’ motion and denied defendants’. This means that all 248 Hollister stores with steps must provide equal accessibility to customers who use wheelchairs. The court ordered the parties to meet and confer and attempt to arrive at a solution that provides equal access within 45 days. If the parties are unable to reach a solution they will request another hearing with the court. A transcript of the hearing can be found below as well as the order granting the Motion for Summary Judgment.
The court ordered the parties to meet and confer regarding the proposed injunction to try to reach agreement. The parties met, but they did not reach agreement. On May 6, 2013, Plaintiffs filed their Submission of Proposed Permanent Injunction.
The Court entered Final Judgment on September 5, 2013.
WE WON! At a hearing on August 16, 2013, Judge Daniel ordered Abercrombie & Fitch to make all of its 231 Hollister stores with steps at their front entrances accessible to customers who use wheelchairs. Unless they appeal, they will have 3 years to do so at a rate of no less than 77 stores per year. They must send us reports of their progress every 6 months. Because Hollister had argued – in defense of the raised porches- they were merely visual displays and not intended to be part of the Hollister experience, Plaintiffs also proposed, in the alternative, that Hollister be permitted to rope off the porches, so that they would be purely a visual experience for all customers and not just those who use wheelchairs. Plaintiffs also proposed that Hollister have the option to ramp the entrance. They have 3 options: make the front entrances level so everyone can enter the store the same way, ramp the entrances, or close off the front entrances to everyone, making it a visual display if they like, and have customers go through the side entrances they use for customers who use wheelchairs.
THEY WILL APPEAL. On September 9, 2013, Defendants filed a Notice of Appeal and a Motion to Stay Injunctive Relief Pending Appeal. This means Abercrombie & Fitch does not intend to make the porch-like entrance spaces accessible any time soon. If the Motion to Stay is granted, no changes to the inaccessible structures will need to be made until after the Tenth Circuit Court of Appeals rules on the issues on appeal and if Plaintiffs win the appeal. The fight continues. Hollister stores’ porches may remain inaccessible to customers who use wheelchairs for now.
On November 15, 2013, we received a great ruling in the Hollister Case. Abercrombie & Fitch asked the Court to stop them from having to make their porches accessible until their Appeal is done. The Court said no and agreed with Plaintiffs, 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.”
On November 22, 2013, Abercrombie & Fitch filed nearly the same motion requesting a stay with the Appeals Court. Even though Plaintiffs let the District Court know that they were marketing a new Hollister storefront image, they still did not tell the Appeals Court they plan to make these changes. They claim that the main reason why they should not start making Hollister Co. stores accessible now is the cost, the disruption to using the stores during renovation, and loss of “goodwill” with their customers. This argument is undercut by the fact that they plan to change the storefronts and make them flat anyway. All of this is explained in Appeals Court Motion for Stay and our Response. Photographs of the new storefront Abercrombie & Fitch proposes for Hollister Co. stores are in the response.
Abercrombie & Fitch once again lost this Motion. The 10th Circuit also denied their request for a stay. As of January 1, 2014, Abercrombie & Fitch should have started making their Hollister Co. stores accessible.
On February 3, 2014, Plaintiffs filed their response to Abercrombie & Fitch’s Opening Brief on Appeal.
On February 10, 2014, nine of CCDC’s friends and colleagues submitted an Amici Curiae brief in support of CCDC. The organizations were the 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 the National Federation of the Blind. CCDC is very grateful to all of these extremely important disability rights advocacy organizations for all of their work and for assisting with this brief. Special thanks go to Michelle Uzeta, of the Law Offices of Michelle Uzeta, who authored the brief. The brief is posted below.
On February 11, 2014, the U.S. Department of Justice also submitted a friend of the court brief in support of Plaintiffs. It is nice to have the United States as an ally.
On February 12, 2014, the District Court will hear Plaintiffs’ motion for attorneys’ fees and costs.
On February 21, 2014, Abercrombie & Fitch filed its reply brief and an unopposed motion requesting an expedited determination.
After numerous victories in this case, on August 29, 2014, a majority of the three-judge panel of the Tenth Circuit Court of Appeals ruled against plaintiffs on the ADA claims. Two of the three judges on the panel made the decision that the porch-like structure at the front of each Hollister store that is only accessible by stairs is not a “space” subject to the ADA’s requirements that all spaces (with very limited exceptions) must be made accessible. They also determined that the broad language of the ADA statute, which requires that services, facilities, privileges, accommodations, and amenities provided by places of public accommodation be integrated and equal for people with disabilities, including those who use wheelchairs, is not sufficient if a specific ADA Standard for Accessible Design is not violated. Despite testimony from corporate executives of Abercrombie and Fitch, the company that owns and operates Hollister Co. Stores, that the porch-like entrances and the steps are a central feature of what makes Hollister different from all other stores and an integral part of their branding and part of the Hollister experience, the Court held the denying customers who use wheelchairs from this experience does not violate the ADA. Despite the fact that the United States Department of Justice Civil Rights Division submitted two statements of interest in favor of plaintiffs’ position in the case, the Court rejected their positions as well. What is most disturbing about this decision is the majority determined that unless a specific feature of a public accommodation is included in the Standards for Accessible Design, it does not need to be made accessible. The ADA statute, regulations and Standards for Accessible Design say exactly the opposite, and the DOJ explained this to the court in brief submitted in support of Plaintiffs’ position. This position is also in conflict with rulings into other Circuit Courts of Appeal. Finally, the majority did not give any deference to the DOJ regulations, Standards for Accessible Design for the briefs submitted in this case. This conflicts with Supreme Court case law, Tenth Circuit case law in the case law of other federal appellate courts.
Plaintiffs and their counsel are considering options at this point. Plaintiffs can request rehearing by the Tenth Circuit. Given the importance of the issues, it seems as though the entire court should revisit the issue. This is a very dissatisfying decision given the ADA’s broad goals of mandating separate is not equal for people with disabilities. The decision is available here.
Plaintiffs-Appellees filed a Petition for Rehearing in Rehearing en banc, requesting that the Tenth Circuit Court of Appeals rehear the case. We were very fortunate that many disability rights groups across the country joined in our request by submitting an amicus brief in support. In addition, the United States Department of Justice also submitted an amicus brief in support of the request for rehearing. These documents are available below.
On November 14, 2014, the Tenth Circuit Court of Appeals denied Plaintiffs’ request for rehearing.
The agreement will require that a large number of Hollister Co. stores will be made accessible or the company will close stores altogether. Not every store will be made accessible, but given the 10th Circuit Court of Appeals ruling, it is possible, none of them would have been made accessible.
The parties reached a settlement agreement. On April 3, 2015, Plaintiffs filed their motion with the court seeking preliminary approval of the settlement agreement. Notice of the proposed settlement agreement has been sent according to the Court’s Order and is available on this page. The court will hold a hearing on the fairness of the settlement on September 24, 2015, at 10:00 a.m., at the Alfred A. Arraj United States District Court for the District of Colorado Courthouse, located at 901 19th Street, Denver, Colorado 80294.
On September 24, 2015, Senior District Court Judge Wiley Daniel granted final approval of a settlement agreement between a class of individuals who use wheelchairs, the Colorado Cross-Disability Coalition and two named class representatives, Julie Farrar and Anita Hansen. Although Plaintiffs won numerous victories at the District Court level, the 10th Circuit Court of Appeals denied Plaintiffs’ ADA claim. Given that, the Defendants could have refused to make any of the stores equally accessible to individuals who use wheelchairs. Nevertheless, the parties were able to reach an amicable agreement that ensures many stores will provide equal entrances. Defendants will either close or remodel other stores to provide equal access as was said in court today. Other beneficial rulings were reached in the Court of Appeals, including issues pertaining to standing to bring claims like this and upholding class certification.
After the Tenth Circuit Court of Appeals decided the ADA issue against plaintiffs, the parties reached a settlement agreement that will still result in a large number of stores providing access to customers who use wheelchairs at the same front entrance as other patrons. The final order approving the settlement, issued September 29, 2015, is below.