Abercrombie & Fitch and Hollister Stores

Citation

CCDC, et al. v. Abercrombie & Fitch Co., et al., 09-cv-02757-WYD-KMT

Issues

Hollister stores are 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 complain about these and other barriers in Colorado Hollister stores.  Plaintiffs also allege Hollister st

Status

 

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 me 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 they 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 store fronts 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 submited a 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 adovcacy organizations for all of their work and for assisting with this brief. Special thanks goes 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. Departement 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.

**If you are seeing this page as a result of using the search bar and the documents do not appear below, please follow this link and scroll down to the bottom of the page to find all documents.** 

Available Documents

2010.08.31 Order Denying Motion to Dismiss
2010.09.20 Renewed Motion to Dismiss
2010.10.25 Plaintiffs' Response to Renewed Motion to Dismiss
2010.11.05 Reply to Response to Renewed Motion to Dismiss
2011.03.16 Motion for Partial Summary Judgment - A&F and Hollister stores
2011.05.11 Defendants' Response to Motion for Partial Summary Judgment
2011.05.18 Order Denying Renewed Motion to Dismiss
2011.05.27 Pls' Reply in Support of Motion for Partial Summary Judgment
2011.05.31 Department of Justice Statement of Interest
2011.08.31 Judge: Hollister violated the rights of customers in wheelchairs
2011.08.31 Order Granting Plaintiffs' Motion for Partial Summary Judgment
2011.08.31 Press Release re: Ruling on Plaintiffs' Motion for Partial Summary Judgment
2011.09.23 Fourth Amended and Class Action Complaint
2011.09.23 Order accepting Fourth Amended and Class Action Complaint
2011.10.20 Answer to Fourth Amended and Class Action Complaint
2011.10.21 Motion for Leave to Amend Complaint
2011.10.31 Motion to Certify Class
2011.11.09 Defendants' Motion to Compel Stapen's deposition
2011.11.14 #129 Defendants' Memorandum in Opposition to Plaintiffs' Motion for Leave to File Fifth Amended and Class Action Complaint
2011.11.17 #130 Response to Defendants Motion to Compel
2011.11.21 #131 Reply re Defendants' Motion to Compel
2011.11.22 #134 Order Granting Defendants' Motion to Compel Deposition of Stapen
2011.12.02 #139 Motion to Withdraw as Counsel for Plaintiff Stapen
2011.12.05 #146 Plaintiffs' Reply re Motion for Leave to File Fifth Amended and Class Action Complaint
2011.12.06 #147 Defendants' Memorandum in Opposition to Motion to Withdraw as Counsel for Plaintiff Stapen
2011.12.09 Fifth Amended and Class Action Complaint
2011.12.23 Defendants Opposition to Class Certification
2012.01.11 Pls Reply in Support of Class Certification
2012.04.10 Judge Grants Plaintiffs' Motion to Certify Nationwide Class
2012.04.11 Judge Certifies CO Attorney’s Disability Class-Action Suit
2012.04.11 Press Release re Court Certifies Nationwide Class Action Against Hollister Co.
2012.04.20 #161 Order granting class cert
2012.04.27 #162 Motion for Summary Judgment and Injunction and Judgment
2012.04.27 Press Release re Request for Injunction
2012.05.03 Defendants' Motion for Summary Judgment or, in the Alternative, to Vacate August 31, 2011 Order
2012.05.21 #167 Defendants' Opposition to Pls' Motion for Summary Judgment
2012.06.01 #171 Pls' Opposition to Dfs' Motion for Summary Judgment and Pls' Reply in Support of Motion for Summary Judgment
2012.06.18 #179 Dfs' Opposition to Pls' Motion for Summary Judgment and Reply in Support of Motion for Summary Judgment
2012.06.26 Department of Justice Statement of Interest
2012.06.26 Press Release: Hollister Stores Violate Americans with Disabilities Act
2012.06.27 Reply Brief in Support of Plaintiffs' Amended Motion for Summary Judgment
2012.07.09 Defendants' Response to DOJ's Statement of Interest
2013.01.24 Transcript of Hearing
2013.03.07 Order Granting Motion for Summary Judgment
2013.05.06 Plaintiff's Proposed Permanent Injunction
2013.05.06 Plaintiffs' Submission of Proposed Injunction
2013.05.17 Defendants Reply to Notice of Proposed Permanent Injunction
2013.05.17 Defendants Reply to Proposed Injunction- Affidavit
2013.05.24 Plaintiff's Motion for Leave to file Reply Brief
2013.05.24 Plaintiffs Reply Brief and Request for Clarification
2013.05.24 Plaintiffs' Revised Proposed Permanent Injunction
2013.08.16 transcript of hearing
2013.08.16 transcript of hearing
2013.08.20 Permanent Injunction
2013.08.30 Order re Permanent Injunction
2013.09.05 #214 Order Final Judgment
2013.09.09 Defendants' Motion to Stay Permanent Injunction
2013.09.09 Motion for Stay
2013.09.09 Notice of Appeal
2013.09.10 Notice of Appeal
2013.09.30 Response to Motion to Stay
2013.11.11 Plaintiffs Supplemental Material in Opposition to Defendants' Motion to Stay Injunctive Relief Pending Appeal
2013.11.15 Order Denying Defendants Motion to Stay Injunction
2013.11.25 Appeal Motion for Stay
2013.11.29 Black Friday. Buyers Beware! A few things you should know about a store defendant in one of CCDC’s cases
2013.12.05 Appeal Response to Motion to Stay
2013.12.09 Abercrombie Appellate Opening Brief
2013.12.23 Appellate Order Denying Motion to Stay Injunction
2013.12.23 Order Denying Motion for Stay
2014.02.03 Appellee's Response Brief
2014.02.10 Amicus Brief
2014.02.10 DOJ Amicus Brief
2014.02.21 Appellants' Reply Brief
2014.02.26 Attorneys' Fees Order
2014.04.29 Press Release Regarding Oral Arguments
2014.08.29 Tenth Circuit Court of Appeals Decision
COURT ORDERS ABERCROMBIE & FITCH TO PAY ATTORNEYS’ FEES AND COSTS IN ADA LAWSUIT ABOUT HOLLISTER CO. STORES Plaintiffs will receive $405,195.08

Media Coverage

12/22/2009DenverColo. disabled group sues Abercrombie, Hollister
12/22/2009Denver PostAbercrombie, Hollister stores sued over access for disabled
12/22/2009Boston HeraldColo. disabled group sues Abercrombie, Hollister
12/23/2009ExaminerThe Colorado Cross-Disability Coalition sues Abercrombie & Fitch
01/15/2010The Columbus DispatchAdvocates of disabled sue chain
01/14/2010National Disability Law ReporterHollister and Abercrombie stores face accessibility suits in Colo., Md.
04/11/2012Law Week ColoradoJudge Certifies CO Attorney’s Disability Class-Action Suit
04/27/2012The Denver PostDenver group wants wheelchair access to all U.S. Hollister stores
04/25/2012Courthouse News ServiceNationwide Class Can Sue Over Hollister Entrances
05/16/2013The Colorado IndependentDenver Judge: Abercrombie Brand Hollister Violating Disabilities Act
05/21/2013JezebelSurprise, Surprise: Hollister Discriminates Against the Disabled
05/20/2013Mail OnlineAbercrombie & Fitch brand Hollister found guilty of discriminating against disabled shoppers over 'inaccessible' stores
05/22/2013JSOnlineJudge: Hollister clothing unfriendly to disabled
05/22/2013The Republicjudge considers injunction after ruling Abercrombie & Fitch, Hollister unfriendly to disabled
05/22/2013CBS NewsJudge: Hollister clothing unfriendly to disabled
05/23/2013International Business TimesHollister Clothing Unfriendly To The Disabled; Lawyer Compares Abercrombie & Fitch To 'Jim Crow Era'
05/23/2013Fox31 NewsColorado group sues Hollister to make stores handicapped accessible
06/10/2013New MobilityPeople in the News: Julie Farrar
08/16/2013Denver Post/Associated PressJudge: Hollister must redesign store entrances
08/20/2013The Columbus DispatchAbercrombie & Fitch to modify Hollister Co. stores to make them wheelchair accessible
08/22/2013WestwordHollister stores nationwide must remodel entrances due to Colorado lawsuit
08/16/2013Denver Business JournalDenver federal judge orders Hollister stores to open entrances to wheelchairs
08/16/2013Colorado IndependentHollister Ordered to Make Faux Surf Shacks Wheelchair Accessible
11/19/2013Denver Business JournalDenver judge denies stay in Hollister disabled-access order
11/07/2013The Columbus DispatchAbercrombie stock tumbles as analysts unimpressed with turnaround plan
11/06/2013Buzz FeedHollister Is Testing The Idea Of Actually Letting You See Into Its Stores
11/08/2013Investor PlaceANF – 4 Signs That Abercrombie Is Out Of Touch With Teens
11/19/2013Fashion UnitedHollister reveals new store concept
02/28/2014Colorado IndependentBummer, dude: Judge says Abercrombie has to pay up
05/13/2014Denver PostAppeals court hears arguments in Hollister Co. discrimination case
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