Colo. Cross-Disability Coal., Non-Profit Corp. v. Abercrombie & Fitch Co.

• Decision Date: 29 August 2014
• Docket Number: No. 13–1377.,13–1377.
• Citation: 765 F.3d 1205
• Parties: 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 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.
• Court: U.S. Court of Appeals — Tenth Circuit

765 F.3d 1205

COLORADO CROSS–DISABILITY COALITION, a Colorado non-profit corporation; Anita Hansen; Julie Farrar, on behalf of themselves and all others similarly situated, Plaintiffs–Appellees,andBenjamin 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 Society—Employment Law Center; National Disability Rights Network; National Federation of the Blind, Amici Curiae.

No. 13–1377.

United States Court of Appeals, Tenth Circuit.

Aug. 29, 2014.

Mark A. Knueve (and Michael J. Ball of Vorys, Sater, Seymour and Pease, LLP, Columbus, OH; Gregory Alan Eurich and Joseph Neguse of Holland & Hart LLP, Denver, CO, on the briefs), for Defendants–Appellant.

Amy F. Robertson (and Timothy P. Fox of Civil Rights Education and Enforcement Center, Denver, CO; Bill Lann Lee of Lewis, Feinberg, Lee, Renaker & Jackson, PC, Oakland, CA; Kevin W. Williams and Andrew C. Montoya of Colorado Cross Disability Coalition, Denver, CO; Julia Campins and Hillary Benham–Baker of Campins, Benham–Baker, LLP, San Francisco, CA, 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, CA, 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.

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, 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 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 Hollister ² 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 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.

IMAGE

After the Plaintiffs filed a third amended complaint, Abercrombie moved to 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–cv–02757, 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 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 ways: (1) making the porch entrance “level with the surrounding floor space”; (2) placing...