IN THE UNITED STATES DISTRICT COURT FOR THE · PDF fileCase 1:09-cv-02757-WYD-KMT Document 171 Filed 06/01/12 USDC Colorado Page 6 of 29. ... Plaintiffs further admit that the Benihana

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No. 09-cv-02757-WYD-KMT

COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation, andANITA HANSEN, andJULIE FARRAR, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

ABERCROMBIE & FITCH CO., et al.,

Defendants.

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARYJUDGMENT OR, IN THE ALTERNATIVE, TO VACATE AUGUST 31, 2011 ORDER

AND PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Case 1:09-cv-02757-WYD-KMT Document 171 Filed 06/01/12 USDC Colorado Page 1 of 29

Plaintiffs, by and through counsel, submit this brief in opposition to Defendants’ Motion

for Summary Judgment Or, in the Alternative, to Vacate August 31, 2011 Order (“Defs.’ MSJ,”

ECF 164) and as a reply in support of Plaintiffs’ Motion for Summary Judgment, Entry of

Injunction, and Entry of Judgment (“Pls.’ MSJ,” ECF 162). Through Plaintiffs’ Motion to

Amend and Supplement Motion for Summary Judgment, Entry of Injunction, and Entry of

Judgment, filed simultaneously with this brief, Plaintiffs also incorporate by reference into

Plaintiffs’ MSJ the arguments made herein.

This Court has previously held that the raised, segregated porch entrances to Hollister

stores violate Title III of the Americans with Disabilities Act (“ADA”), including the 1991 ADA

Standards. ECF 109. These entrances also violate the 2010 ADA Standards.

! The 2010 Standards require all accessible spaces in public accommodations --

including Hollister’s raised porches -- to be on accessible routes;

! The entrance requirements on which Defendants rely must be interpreted in

harmony with the ADA and were intended to achieve the same result as the 1991

Standards, which this Court has held to prohibit the segregated entrances; and

! Hollister has intentionally created a crucial brand-identity experience of entering a

California beach house through its porch and cannot, under the ADA, deny this

service, facility, privilege, advantage, and accommodation on the basis of disability.

Because 249 Hollister stores nationwide share the material feature at issue -- a raised,

segregated porch entrance -- the Class is entitled to summary judgment as to all such stores and

an injunction remedying these violations.

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RESPONSE TO DEFENDANTS’ STATEMENT OF FACTS (ECF 164)

1. Admitted.

2. Plaintiffs admit that Defendants intend the raised porch-like structure to create the

aesthetic of a Southern California surf shack. Plaintiffs disagree with the characterization that the

porch-like structure is for display only. It is undisputed that the porch is, and is used as, an

entrance to the store and a space that provides the experience of entering a California beach

house. See infra Add’l Facts ¶¶ 1-6.

3. Plaintiffs admit the physical description of the Park Meadows Hollister store but

disagree with the characterization that the store has an “integrated entrance design.”

4. Admitted for purposes of the pending motions for summary judgment. Plaintiffs

admit that their original complaint addressed multiple issues while the pending Fifth Amended and

Supplemental Class Action Complaint, ECF 149, addresses only the raised, segregated porch

entrances. As such, the status of features other than the porch entrances is irrelevant here. While

Plaintiffs have no knowledge whether Defendants removed the barriers they claim to have

removed, those barriers remain contested in the case of Equal Rights Center v. Abercrombie &

Fitch Co., 09-cv-03157-JFM (D. Md.).

5. Admitted.

6. Admitted.

7. Plaintiffs admit the physical description of the Park Meadows Hollister store but

disagree with the characterization that the store has an “integrated” entrance.

8. Admitted for purposes of the pending motions for summary judgment.


Facts Page 1



11. Plaintiffs admit that -- once shoppers reach the interior of the store -- they “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.” In this paragraph, Defendants

cite to paragraph 15 of the Bondy Declaration, ECF 164-1, which defines “in-store experience” as

the shopper’s experience once he or she reaches the interior of the store, that is, starting at the

points illustrated with red dots in Exhibit J to that declaration. Bondy Decl. ¶ 15 (“Once a

shopper enters the store . . . the shopper will be at the same spot in the store . . .”). This

experience comes after the customer has either had the experience of entering a California beach

house through the elevated porch or had the experience of entering the house through what looks

like a shuttered window. There can be no dispute that the experiences of customers who are able

to access the porch and those who must enter through the window are different. See infra Add’l

Facts ¶¶ 1-12.


RESPONSE TO STATEMENT OF ADDITIONAL MATERIAL FACTS (ECF 167)

1. See supra ¶¶ 2-3.

2. See supra ¶ 4.

3. Admitted.

4. See supra ¶ 7.




Facts Page 2


8. See supra ¶ 11.



11. Admitted; see also infra at 9, incorporating by reference the record with respect to

Plaintiffs’ standing.

12. Admitted with clarification. Ms. Hansen testified in her deposition that she visits

the Park Meadows Mall two to three times a year. Hansen Dep. 23:4-5; see also infra at 9,

incorporating by reference the record with respect to Plaintiffs’ standing.











18. Plaintiffs admit that Plaintiff Colorado Cross Disability Coalition (“CCDC”) was

party to a lawsuit against the University of Denver that addressed issues at the Sturm College of

Law and the Magness Arena and that that case did not address issues relating to the entrances to

either facility.

Facts Page 3


Plaintiffs deny that “[i]n order to reach the box office and the performance venue at

Magness arena, a disabled wheelchair user is required to enter the building on the ground floor

and take an elevator to the second floor. The main access for patrons not using wheelchairs for

mobility is to walk up the staircase.” Defs.’ Opp. at vii, ¶ 18. The Magness Arena is part of the

multi-story, multi-facility, multi-entrance Ritchie Center.1 The Magness Arena performance venue

and box office can be accessed both from the entrances (described by Defendants) on the north

side of the facility that face Buchtel Boulevard and by a level entrance off Asbury Street on the

south side of the facility.2 It is the latter -- accessible -- entrance that faces the rest of campus,

making it the more convenient entrance for the students, faculty, and staff of the University, as

well as patrons approaching the venue from the south. Decl of Amy F. Robertson in Support of

Summary Judgment, Entry of Injunction, and Entry of Judgment (“Robertson Decl.”) ¶ 4.

Defendants do not provide any evidence that the “main” entrance to the Magness Arena is the one

on the north side facing away from campus.

Plaintiffs admit that one of the entrances to the University of Denver Sturm College of

Law has steps and a ramp both of which serve the same entry doors. Eurich Aff. Exs. C & D;

Robertson Decl. Ex. 2. Although the change in level at the law school’s west entrance is much

greater than at a Hollister store, Plaintiffs respectfully observe that this configuration -- in which

both steps and a ramp bring all visitors to the same entry doors -- is one that would remedy the

violations at Hollister’s raised entrances.

1 http://ritchiecenter.du.edu/venues/?c=6

2 http://ritchiecenter.du.edu/parking_directions/?c=44

Facts Page 4


19. Plaintiffs admit that CCDC was party to a lawsuit challenging barriers at a number

of stores at the Flatirons Mall. Plaintiffs further admit that the Benihana Steakhouse at that mall

has steps and a ramp, both of which serve the same entry doors. Eurich Aff. Ex. E. Plaintiffs

respectfully observe that this configuration -- again, in which both steps and a ramp bring all

customers to the same entry doors -- is one that would remedy the violations at Hollister’s raised

entrances.

STATEMENT OF ADDITIONAL UNDISPUTED FACTS3

1. Defendants’ “in-store marketing is designed to convey the principal elements and

personality of each brand. The store design, furniture, fixtures and music are all carefully planned

and coordinated to create a shopping experience that reflects the . . . Hollister . . . lifestyle.”

Abercrombie & Fitch Co., Form 10-K for the fiscal year ended January 28, 2012 at 2 (Robertson

Decl. Ex. 3).

2. Approximately 249 Hollister stores around the country include a materially

identical raised porch entrance. Defs.’ Opp. at i-ii; Robertson Decl. ¶¶ 3, 10-12 & Exs. 1 & 7; see

also Order, ECF 161 (“Class Cert. Order”) at 7-8 (“While there may be some non-material

differences in the porch displays at various store locations, it appears beyond dispute that the

Elevated Entrances are constructed pursuant to a common architectural design.”).4

3 These facts are cited herein as “Add’l Facts ¶ ---.”

4 Despite Defendants’ previous admission that 249 stores have raised porchentrances, Defendants now appear to argue that these raised porches differ in some material way. See Defs.’ Opp. at 12. In case Defendants intend -- at this late date -- to raise doubts about theircommon design, Plaintiffs submit a compilation of the front sections of floor plans for 240 storesproduced in discovery by Defendants. Robertson Decl. ¶ 10-12 & Ex. 7. These floor plans showthe materially identical -- and non-compliant -- design of a large raised porch area flanked by

(continued...)

Facts Page 5


3. The purpose of this raised porch “is to give the stores the aesthetic appearance of a

Southern California surf shack . . ..” Bondy5 Decl. (ECF 164-1) ¶ 4. As such, the raised porch

“is a significant aspect of the stores’ branding and marketing efforts.” Hill Decl. (ECF 93-2) ¶ 8.

4. The raised porch 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.” Hill6 Dep. 37:9 - 22; see also id. at 30:15 - 31:15; 33:19 -

34:7.

5. The porches at Hollister stores have chairs, a marketing image, and mannequins

displaying merchandise. Bondy Dep. 54:9 - 55:3. While the furniture is not intended as seating,

customers are not prohibited from sitting there. Id. 55:14 - 56:1. And where the porch is raised,

customers in wheelchairs would not “have the ability to touch or feel the clothes” on display

there. Id. 58:19 - 59:2.

6. Photographs of the raised porch at the Park Meadows Hollister illustrate the

experience described by Mr. Hill and Mr. Bondy. These photographs were taken on May 26,

2012. Robertson Decl. ¶ 8.

4(...continued)smaller accessible entrances designed to resemble the nonfunctional shuttered windows farther tothe left and right. Id.

5 Michael Bondy is the Senior Project Manager for Abercrombie & Fitch Co. Bondy Decl. ¶ 1.

6 Adam Hill is Abercrombie & Fitch Co.’s Vice President of Store Design. HillDep. 19:21 - 20:2. Excerpts from the depositions of Michael Bondy and Adam Hill are attachedas Exhibits 4 and 5 to the Robertson Declaration.

Facts Page 6


Facts Page 7


Facts Page 8


Facts Page 9


7. In 249 Hollister stores, this essential part of the Hollister experience is inaccessible

to shoppers who use wheelchairs. They do not have access to the porch itself, to the mannequins,

to the furniture, or -- most importantly, per Hollister -- to the experience of entering a beach

house by walking up onto the porch.

8. Instead, shoppers who use wheelchairs must enter the store through side doors to

the left and right of the porch. Defs.’ MSJ at 2, ¶ 7. Although Defendants assert that the raised

porch and the side doors are “parts of an integrated entrance design,” id. at 1, ¶ 3, a photograph

of the Park Meadows store belies this description, and demonstrates the visual and experiential

primacy of the raised, inaccessible porch entrance.

Facts Page 10


9. Hollister designed the accessible side doors to look the same as the decorative,

nonfunctional, shuttered windows to each side. Hill Dep. 107:6-8; 108:1; Bondy Dep. 100:2 - 20.

10. Thus, instead of having the central Hollister brand experience of entering a beach

house by walking up onto the porch, people who use wheelchairs -- by design -- have the

experience of entering a beach house through a window to the side of the porch.

11. At the Park Meadows Hollister, Defendants recently added door handles to the

accessible side doors, as well as signage indicating whether the door led to the boys’ or girls’ side

of the store. Defs.’ MSJ at 3, ¶ 8; Defs.’ Opp. at iii-iv, ¶ 5.

12. As the photos above -- taken after the recent adjustments -- illustrate, nothing in

these adjustments changes the material facts at issue in this case: that in 249 Hollister stores, the

central entrance to the store -- the one that provides the crucial brand-identity experience of

walking into a California beach house -- is raised, inaccessible, and therefore segregated, forcing

shoppers who use wheelchairs to use side entrances intentionally designed to look like windows.

Facts Page 11


ARGUMENT

I. Applicable Statutory and Regulatory Standards

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. “‘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.” Id. at 50, 1990 U.S.C.C.A.N. at 473.

Title III of the ADA prohibits discrimination in places of public accommodation. 42

U.S.C. § 12182(a). As this Court held, the statute prohibits providing individuals with disabilities

with “‘a good, service, facility, privilege, advantage, or accommodation that is different or

separate from that provided to other individuals,’” Order, ECF 109 (“SJ Order”) at 11, quoting

42 U.S.C. § 12182(b)(1)(A)(iii) (emphasis in SJ Order), and 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., quoting

§ 12182(b)(1)(B) (emphasis in SJ Order).

Title III instructs the Department of Justice (“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 governing standards (“1991 Standards”). 28

C.F.R. § 36.406(a) (1991). On September 15, 2010, the DOJ amended its regulations and

adopted the 2004 Americans with Disabilities Act Accessibility Guidelines as the governing

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architectural standards (“2010 Standards”). 75 Fed. Reg. 56236, 56238 (Sept. 15, 2010).

Because the stores at issue in this case were constructed after January 26, 1993 but before

September 15, 2010, see Robertson Decl. Ex. 1, they are required to comply with the 1991

Standards. 28 C.F.R. § 36.406(a)(1) (2011). The only exception to this requirement is that, if the

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) (2011). Defendants argue that the 2010 Standards reduce the requirements for

access to the raised porch entrances, and that those features comply with the newer Standards.

Neither argument has merit.

II. The Raised Porch Entrances Violate the 1991 Standards.

This Court has previously held that the raised, segregated porch entrances violate the 1991

Standards. SJ Order at 11-12. Plaintiffs will demonstrate below that they also violate the 2010

Standards. The Court’s holding concerning the 1991 Standards remains crucial, however, both

because those are the applicable standards, 28 C.F.R. § 36.406(a)(1) (2011), and because it

demonstrates that Hollister’s segregated porch entrances have been in violation of the applicable

new construction standards since they were built and therefore must be remedied, with no resort

to defenses relating to expense or burden. See 42 U.S.C. §§ 12183(a)(1); 12188(a)(2).

III. The Raised Porch Entrances Violate the 2010 Standards.

Approximately 249 Hollister stores have raised porch entrances that are inaccessible to

shoppers who use wheelchairs. Add’l Facts ¶ 2. These stores violate the 2010 ADA Standards.

A. The 2010 Standards Require that the Porch Be Accessible.

Defendants’ testimony and admissions make it clear that the raised porch is an integral and

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crucial part of both its store design and customer experience. Add’l Facts ¶¶ 1-6. The porches

themselves -- not only as entrances but as part of the space that comprises the store -- are spaces

to which all customers must have access.

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, 36 C.F.R. pt.

1191, § 206.2.4.7 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

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,

mandating that “[a]ll areas of newly designed and newly constructed buildings and facilities . . .

shall comply with these requirements.” Id. § 201.1.

The exceptions to 206.2.4 are narrow and specific, lending further support to the

conclusion that Hollister’s porches must be accessible. Such exceptions include, 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 mezzanines8 in single-story buildings. §§ 206.2.3, Exceptions 3-6; 206.2.4,

7 www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards.pdf.

8 The porches are not mezzanines. By definition, “[m]ezzanines have sufficientelevation that space for human occupancy can be provided on the floor below.” 2010 Standards

(continued...)

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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 porches are not covered by any

applicable exception and therefore, pursuant to section 206.2.4, must be on an accessible route.

Defendants assert that the porch is “a visual display, analogous to a store window.”

Defs.’ Opp. at ii, ¶ 1. However, there is no question that the porch is a space that is connected to

the rest of the mall by a circulation path, required by section 206.2.4 to be on an accessible route.

Moreover, unlike a store window, it contains interactive elements such as chairs and clothing

displays that can be touched. Add’l Facts ¶ 5. Defendants point to no provision -- and Plaintiffs

could not find any -- excepting from the 2010 Standards space in a retail store that is open to

customer foot traffic but denominated “display” space. Based on the above, without regard to

their role in the entrances, Hollister’s porches must be accessible.

B. Section 206.4 Does Not Permit Segregated Entrances.

The provision of the 1991 Standards governing entrances states, among other things,

“[w]here feasible, accessible entrances shall be the entrances used by the majority of people . . ..”

8(...continued)§ 106.5. There is no space for human occupancy beneath the porches.

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§ 4.1.3(8). Defendants rely on the fact that the provision of the 2010 Standards governing

entrances -- section 206.4.1 -- does not contain this language. Defs.’ MSJ at 5. However, the

DOJ commentary to section 206.4.1 explains that it 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 823 (2011). Thus, the analysis of the raised entrances in the Court’s SJ

Order remains valid.

In any event, the 2010 Standards -- including section 206.4 -- may not be interpreted in a

way that conflicts with the fundamental purpose and explicit language of the ADA requiring

integration and prohibiting separate-but-equal facilities. See supra at 2. “[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). As

the First Circuit stated -- in a Title III case relied on by Defendants, see Defs.’ MSJ at 11 -- that

while it “makes more sense” to rely on the Standards rather than more general statutory language,

“the statute as a whole remains highly relevant. It provides the purpose and 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). Any interpretation of the 2010 Standards that permits the

segregated, separate-but-equal, entrances at the 249 Hollister stores at issue must be rejected as

directly contrary to the objective and language of the ADA.9

9 In its statement of interest in support of Plaintiffs’ earlier motion for partialsummary judgment, the DOJ stated that the design and construction of the Park MeadowsHollister “violates both the purpose and the letter of the ADA by unnecessarily relegating peoplewho use wheelchairs to separate and objectively different entrances than those available for other

(continued...)

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IV. The Experience of Entering a California Beach House Through the Porch Is Part ofHollister’s Services, Facilities, Privileges, Advantages, and/or Accommodations andCannot Be Denied Based on Disability.

Even if the design of Hollister’s segregated entrances is held to comply with the 2010

Standards, the stores remain out of compliance the ADA because the way that design is used

denies shoppers who use wheelchairs full and equal enjoyment of Hollister’s services, facilities,

privileges, advantages, and/or accommodations, in violation of 42 U.S.C. § 12182(a). As

Defendants’ testimony makes clear, the porch is crucial to the Hollister experience. Add’l Facts

¶¶ 1-6. Customers who use wheelchairs are excluded from that experience.

Defendants argue that where a design complies with the Standards, it is improper to

consider general antidiscrimination provisions. Defs.’ MSJ at 10-11. Plaintiffs agree, at the most

general level, that a facility that is in compliance with unambiguous language of the Standards --

for example, one that has the correct number of accessible parking spaces, see 2010 Standards

§ 208.2 -- cannot be held to be in violation of the ADA if, for example, those spaces are full and a

disabled person is unable to find parking. Accordingly, several of the cases on which Defendants

rely for the proposition that the ADA’s general antidiscrimination language may not be considered

are cases in which only the design was at issue. United States v. Nat’l Amusements, Inc., 180 F.

Supp. 2d 251, 257 (D. Mass. 2001) (“the specific regulations exclusively set forth the

requirements for architectural design issues,” (emphasis added)); White v. Divine Investments,

Inc., 286 Fed. Appx. 344, 346 (9th Cir. 2008) (“No court has ever held that a Title III

discrimination action based on the design of a public accommodation may be maintained in the

9(...continued)people.” The United States of America’s Statement of Interest on Plaintiffs’ Motion for PartialSummary Judgment, ECF 97, at 4.

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absence of an ADAAG violation.” (Emphasis added.)).

It is also clear, however, that a facility that complies with the physical requirements of the

Standards may violate the ADA in the way the facility is used. One of the cases on which

Defendants rely -- Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1084-85 (9th Cir.

2004) -- makes this distinction clear: “an examination of the ADAAG . . . is necessary in cases

that involve the design of a public accommodation under the ADA . . .. But in cases . . . which

concern a public accommodation’s policy regarding the use of that design . . . the provisions of

the ADAAG are not controlling.” (Emphasis in original.) See also Obert v. The Pyramid, 2005

WL 1009567, at *5 (W.D. Tenn. Apr. 8, 2005) (where use rather than design at issue, “ADA

plaintiffs need not prove that the defendant contravened a ‘specific requirement of the

[Standards]’ to establish a violation of the ADA, and thus it follows that compliance with the

[Standards] does not necessarily preclude recovery under the ADA.”).

Here, the way Hollister uses the porch goes beyond design or architecture. Rather, the

inaccessible porch is used to create a central part of the Hollister experience while the accessible

side entrances are used to create the appearance of a shuttered window. Add’l Facts ¶¶ 1-12.

Customers who enter through the porch receive services, facilities, privileges, advantages, and/or

accommodations of the Hollister store -- namely, the full, intended Hollister experience -- that are

denied customers who use wheelchairs. This violates the ADA. 42 U.S.C. § 12182(a).

The remainder of Defendants’ cases are not to the contrary. Two simply stand for the

proposition that the general language and specific regulations are each relevant to the

interpretation of the other. White v. Cinemark USA Inc., 2005 WL 1865495, at *4 (E.D. Cal.

Aug. 3, 2005) (“the ADA’s general non-discrimination language must be considered in light of the

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regulatory context of the ADA, rather than evaluated in a vacuum.”); Hoyts Cinemas, 380 F.3d at

566 (“the statute as a whole remains highly relevant. It provides the purpose and general

objectives that cast light on the meaning of the regulation at issue.”). In Colorado Cross-

Disability Coalition v. Too (Delaware), Inc., 344 F. Supp. 2d 707, 710 (D. Colo. 2004), the

court stated that the plaintiffs were asking “to ignore the provisions of the statute, the legislative

history, and the regulations.” In contrast, Plaintiffs here have demonstrated above that the statute

and legislative history all prohibit Defendants’ segregated, “separate-but-equal” entrances.

Finally, in Lara v. Cinemark USA, Inc., 207 F.3d 783, 789 (5th Cir. 2000), the court was being

asked to rely on “the subjective and undoubtedly diverse preferences of disabled moviegoers,” a

step it would not take in the absence of “specific regulatory guidance.”

If Defendants are going to continue to use the porches at the front of their stores to

provide the full Hollister experience of entering a California beach house, they must make that

experience accessible to all customers.

V. Plaintiffs Have Standing to Seek a Nationwide Injunction.

Once this Court certified a nationwide class addressing all Hollister stores with raised

entrances, this class subsumed any individual questions of standing. As such, Defendants’

argument that the Representative Plaintiffs lack standing is misplaced. It is also wrong.

A. This Court Has Held that the Representative Plaintiffs Have Standing.

Defendants have argued, in two previous briefs, that the Representative Plaintiffs do not

have standing because they have not demonstrated a sufficient intent to return to the Hollister

stores in the complaint. They moved to dismiss on these grounds, ECF 76, which argument was

rejected by this Court in an Order setting forth the applicable standard, ECF 94 at 5.

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Relying on the Representative Plaintiffs’ depositions, Defendants challenged the

Representative Plaintiffs’ standing on the same grounds in their Opposition to Motion for Class

Certification, ECF 155, in an argument that ignored the standard previously established by this

Court, Tenth Circuit precedent, Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004),

and an on-point decision in this district, Colorado Cross Disability Coalition v. Hermanson

Family Ltd. Partnership I, 1997 WL 33471623, at *4-7 (D. Colo. Aug. 5, 1997). This Court

rejected Defendants’ standing argument for a second time, holding that the Plaintiffs had standing,

either as shoppers or as testers: “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-in-fact. The named

Plaintiffs have suffered and will suffer in the future if the Elevated Entrances are not removed.”

Class Cert. Order at 9-10.

Defendants raise this argument for the third time in opposition to Plaintiffs’ MSJ, but

(1) present no new facts; and (2) once again fail to cite, address, or attempt to distinguish this

Court’s standard or the Tandy or Hermanson cases. The decision that Representative Plaintiffs

Anita Hansen and Julie Farrar have standing is now the law of the case. In response to

Defendants’ argument, Plaintiffs incorporate by reference pages 9-10 of this Court’s Class Cert.

Order, pages 1-7 of their Reply Brief in Support of Motion for Class Certification, ECF 156, and

the factual record on which the latter relied.

B. Once a Class Is Certified, the Relevant Standing Is that of the Class.

Defendants argue that the Representative Plaintiffs have failed to demonstrate an intent to

return to the remaining 247 stores with raised entrances. This is not required. Now that the

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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 ensure this result. The class

includes only 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.” Class Cert. Order at 2. That is, the class is precisely those individuals who have

standing to challenge the steps at Hollister stores nationwide.

Defendants’ standing argument was rejected by Judge Kane in a case very similar to the

present. 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

wheelchair access at 1,500 Kmart stores. Kmart argued that the plaintiffs had to demonstrate

standing with respect to each store. Judge Kane rejected that argument, holding 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 Clark v. State Farm Mut. Auto. Ins. Co., 590

F.3d 1134, 1138 (10th Cir. 2009) (“[A] certified class becomes an independent juridical entity

capable of satisfying the standing requirements of Article III”); 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).); 1 Newberg on Class actions § 2:3 (5th ed.) (“if class members other than the named

plaintiffs were required to submit evidence of their standing, then the core function of class

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actions, wherein named plaintiffs represent a passive group of class members, would be

significantly compromised.”).

Defendants’ cases are not to the contrary. Crucially, none involve class actions. Three --

Delta Commercial Fisheries Ass’n v. Gulf of Mexico Fishery Management Council, 364 F.3d

269, 272-73 (5th Cir. 2004); Equal Rights Center v. Hilton Hotels Corp., 2009 WL 6067336, at

*4-5 (D. Md. Mar. 25, 2009); and Small v. General Nutrition Cos., 388 F. Supp. 2d 83, 90-91

(E.D. N.Y. 2005) -- involve an association asserting representational standing. In Equal Rights

Center, for example, the court was concerned that the plaintiffs “only kn[e]w of violations at 24

of the 2,896” hotels they sought to challenge. Id., at *7. In contrast, Defendants concede that

the challenged raised porch entrances exist at 249 of their stores. Defs.’ Opp. at i-ii. The final

case on which Defendants rely held that a qui tam relator did not have standing. United States ex

rel. Riley v. St. Luke’s Episcopal Hosp., 982 F. Supp. 1261, 1263 (S.D. Tex. 1997), cited in

Defs.’ Opp. at 6.10 This holding was reversed on appeal by the panel and was not addressed by a

later en banc decision because the Supreme Court had held, in the interim, that relators have

standing. Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749, 751-52 & n.3 (5th Cir. 2001) (citing

Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000)).

VI. Plaintiffs Are Entitled to an Injunction Remedying the Segregated Entrances.

Plaintiffs request an injunction requiring that the raised porches be ramped or removed.

See [Revised Proposed] Order Entering Permanent Injunction, filed herewith. Because the raised

porches were in violation of the 1991 Standards when they were built, SJ Order at 4, they were in

10 Defendants also note that the district court in Riley quoted Valley Forge ChristianCollege v. American United, 454 U.S. 464, 473 (1982). Defs.’ Opp. at 6. This case involvedtaxpayer and citizen standing, and is thus also not on point here.

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violation of the new construction requirement of 42 U.S.C. § 12183(a)(1) and so injunctive relief

“shall include an order to alter [the] facilities” to bring them into compliance, id. § 12188(a)(2)

(emphasis added). “[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, 2011 WL 588060, at *5 (D. Colo. Jan. 14, 2011) (citing Atchison,

Topeka & Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 259 (10th Cir. 1981)).

The only defense to full compliance in structures built after January 26, 1993 is that it is

“structurally impracticable” to comply. 42 U.S.C. § 12183(a)(1); SJ Order at 7. “Defendants

acknowledge that the exception does not apply to either of the stores at issue.” Id.

Defendants cite to the money they have allegedly spent to address accessibility concerns as

justification to excuse them from further compliance measures. Defs.’ Opp. at 13. Such

expenditures are irrelevant to the requirement that the porch entrances be altered to comply with

the 1991 and/or 2010 standards. While cost factors may come into play in determining whether

barriers must be removed from existing facilities, § 12182(b)(2)(A)(iv), they are not considered in

post-1993 construction, § 12183(a)(1). The fact that many Hollister stores did not have

compliant sales counters until 2010, Bondy Decl. ¶ 7, is not a defense to bringing the stores’

segregated porch entrances into compliance.

Defendants also cite their “good faith efforts.” Defs.’ Opp. at 13. However, “a private

entity’s good faith effort or attempt to comply with the ADA is only applicable in civil actions

brought by the Attorney General, and only when considering the amount of civil penalty.” Access

Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357, 1369 (S.D. Fla. 2001) (citing 42

U.S.C. § 12188(b)(5)).

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Defendants argue that this Court should exercise discretion and decline to enter an

injunction remedying the inaccessible porch entrances. None of the grounds it offers overcomes

the mandate of 42 U.S.C. § 12188(a)(2) that, upon proof of a violation of new construction

standards, an injunction “shall include” an order to bring the facilities into compliance. Defendants

rely on dicta in Gregory v. OTAC, Inc., 247 F. Supp. 2d 764 (D. Md. 2003). Significantly, there

is no evidence in that Title III case that the facility was constructed after January 26, 1993 and, in

any event, the Court ultimately held that the facility was in compliance. The remaining cases

Defendants cite stand for the proposition that injunctive relief should be tailored to the problem it

is intended to solve. See Defs.’ Opp. at 13. Plaintiffs respectfully submit that an order to ramp or

remove the raised, segregated porches does precisely that.

Finally, Defendants offer no support for the proposition that CCDC’s litigation strategy in

unrelated cases is relevant to the measures necessary to remedy Hollister’s ADA violations. See

Defs.’ Opp. at 14 n.12. That said, at least two of the examples Defendants provide illustrate a

viable solution for Defendants’ violations. The Sturm College of Law and the Benihana at

Flatirons mall both have entrances that are served by both steps and a ramp. Eurich Aff. Exs. C,

D & E; Robertson Decl. Ex. 2. That is, customers who use wheelchairs and those who are able to

climb steps both go in the same doors, though they arrive at those doors by different paths. This

is a perfectly acceptable configuration and Plaintiffs would be pleased if Defendants were to ramp

the raised porches so that customers who use wheelchairs and those who do not are both able to

access the porches and enter the store through the same doors.

Defendants complain about Plaintiffs’ proposed timing -- the requirement that all raised

porch entrances be remedied by the end of the year. See [Revised Proposed] Order Entering

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Permanent Injunction, filed herewith. While Plaintiffs are open to a later deadline, Defendants

have not proposed much less justified one.

In conclusion, as Judge Matsch recently held, in ordering a restaurant to remedy newly-

installed raised areas:

The injury to the plaintiffs and those persons represented by the ColoradoCross-Disability Coalition is that when they patronize this restaurant, they mustsuffer the indignity of discriminatory treatment by their exclusion from 840 squarefeet of the dining area solely because they use wheelchairs. The elimination of thatdiscriminatory treatment goes to the very purpose of the ADA and it can only beremedied by requiring such modification to those areas as to make them accessibleto wheelchairs.

Fox v. Morreale Hotels, LLC, 10-cv-3135-RPM-MJW, ECF 142 at 2 (D. Colo. Mar. 5, 2012),

Robertson Decl. Ex. 6. CONCLUSION

For the reasons set forth above and in Plaintiffs’ MSJ, Plaintiffs respectfully request that

this Court:

1. Deny Defendants’ Motion for Summary Judgment or, in the Alternative, to Vacate

August 31, 2011 Order;

2. Grant Plaintiffs’ Motion for Summary Judgment;

3. Enter an injunction requiring Defendants to ramp or remove the segregated raised

porches where they exist at Hollister stores nationwide and enjoining future construction of such

entrances, see [Revised Proposed] Order Entering Permanent Injunction, filed herewith; and

4. Enter judgment in Plaintiffs’ favor.

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Respectfully submitted,

/s/ Amy F. Robertson Amy F. RobertsonFox & Robertson, P.C.104 Broadway, Suite 400Denver, Colorado 80203Telephone: (303) 595-9700Facsimile: (303) 595-9705E-mail: [email protected]

Bill Lann LeeJulia CampinsLewis, Feinberg, Lee, Renaker & Jackson, P.C.476 - 9th StreetOakland, CA 94607Telephone: (510) 839-6824Facsimile: (510) 839-7839E-mail: [email protected]: [email protected]

Kevin W. WilliamsAndrew C. MontoyaColorado Cross-Disability Coalition655 Broadway, Suite 775Denver, Colorado 80203Telephone: (303) 839-1775Facsimile: (303) 839-1782E-mail: [email protected]: [email protected]

Attorneys for Plaintiff

Dated: June 1, 2012

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CERTIFICATE OF SERVICE

I hereby certify that on June 1, 2012, a copy of the foregoing document was filed with theClerk of Court using the CM/ECF system, which will provide electronic service to the following:

Gregory A. [email protected]

Thomas B. [email protected]

Mark A. [email protected]

/s/ Caitlin R. Anderson Caitlin R. AndersonParalegalFox & Robertson, PC

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Documents

IN THE UNITED STATES DISTRICT COURT FOR THE · PDF fileCase 1:09-cv-02757-WYD-KMT Document 171 Filed 06/01/12 USDC Colorado Page 6 of 29. ... Plaintiffs further admit that the Benihana