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Case Name Colorado Cross-Disability Coalition v. Abercrombie & Fitch DR-CO-0020
Docket / Court 1:09-cv-02757-WYD-KMT ( D. Colo. )
State/Territory Colorado
Case Type(s) Disability Rights-Pub. Accom.
Special Collection DOJ Civil Rights Division Statements of Interest
Attorney Organization Civil Rights Education and Enforcement Center
Case Summary
Several individuals who use wheelchairs and the Colorado Cross-Disability Coalition ("CCDC") (an organization representing individuals with disabilities) filed this lawsuit in the U.S. District Court for the District of Colorado on November 24, 2009. The plaintiffs claimed that Hollister stores ( ... read more >
Several individuals who use wheelchairs and the Colorado Cross-Disability Coalition ("CCDC") (an organization representing individuals with disabilities) filed this lawsuit in the U.S. District Court for the District of Colorado on November 24, 2009. The plaintiffs claimed that Hollister stores (owned by Abercrombie & Fitch Co.) were inaccessible in violation of Title III of the Americans with Disabilities Act ("ADA") and the Colorado Civil Rights Act. The main entrances of Hollister stores typically have "raised porches" (featuring stairs), and thus forced individuals in wheelchairs to use separate entrances or not enter at all. The plaintiffs also alleged several architectural barriers in the set-up and design of the stores.

Abercrombie & Fitch Co. (A&F) moved to dismiss the complaint in May 2010, alleging that the plaintiffs in the case did not have standing to assert their claims. A&F argued that the individual plaintiffs did not have standing to demand compliance in Hollister stores nationwide, but rather, could only make claims in reference to those stores that each individual plaintiff was likely to visit again. A&F also argued that the CCDC did not have adequate organizational standing to bring these claims on behalf of its members. The court (Judge Wiley Y. Daniel) rejected this motion in May 2011. Judge Daniel found that the individual plaintiffs could assert claims in reference to Hollister stores across the country because the stores share a common plan or design that plaintiffs allege violates the ADA. The court also found that CCDC had satisfied the requirements for organizational standing. 2011 WL 1930643. Judge Daniel affirmed this holding on June 2, 2011 in responds to a renewed motion to dismiss by the defendants. 2011 WL 2173713.

On March 16, 2011, the plaintiffs moved for partial summary judgment with respect to two Hollister stores, arguing that the raised porch design violated Title III. Title III and its accompanying regulations require that all buildings erected after 1993 comply with the Department of Justice Standards for Accessible Design ("DOJ Standards"). The 1991 DOJ Standards state that, where feasible, the accessible entryway should be near the entrance that is used by the majority of people. The U.S. Department of Justice filed a brief supporting the plaintiffs' interpretation and recommending that the court grant summary judgment. The court granted this motion on August 31, 2011. 835 F.Supp.2d 1077.

The plaintiffs filed a motion for class certification on October 21, 2011, and the court certified the class on April 20, 2012. The class was 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." The named plaintiffs in the case were thereby certified to represent the interests of all individuals who used wheelchairs who wished to enter Hollister stores across the country. 2012 WL 1378531. In light of this, the plaintiffs filed a motion for summary judgment as to the 249 Hollister stores across the country on April 27, 2012.

A&F filed its own motion for summary judgment, or in the alternative to vacate the August 31, 2011 order, on May 3, 2012. In that motion, they alleged that the two stores that were subject to the August 31, 2011 order were no longer in violation of the ADA (one closed, the other made modifications). A&F also claimed that, regardless of the changes, Hollister stores complied with the 2010 DOJ Standards. The defendants argued that the 2010 standards on entrances were more flexible than the earlier 1991 version. In response to this claim, DOJ filed a brief again siding with the plaintiffs. The DOJ brief explained that although the language of the 2010 DOJ Standards was slightly different from the 1991 DOJ Standards, this difference of language was not meaningful. The DOJ referenced the regulatory history to argue that the language of the standards was not intended to change the requirement from the 1991 version.

After a hearing on January 24, 2013, Judge Daniel granted the plaintiffs' motion for summary judgment. In an order issued on March 7, 2013, he found that the named plaintiffs could raise claims on behalf of a nationwide class and that the raised porch design violated both the 2010 and 1991 standards, which demanded the same accessibility of entrances. 957 F.Supp.2d 1272.

On August 20, 2013, the court ordered a permanent injunction requiring the defendant to make architectural changes to bring all Hollister stores into comply with the ADA standards. The order required the defendant meet certain benchmarks (including bringing at least 77 stores into compliance per year) and report to the court every six months from January 1, 2014 to January 1, 2017. On September 5, 2013, the court entered final judgement for the plaintiff.

On September 9, 2013, the defendant filed an appeal in the U.S. Court of Appeals for the Tenth Circuit. On November 15, 2013, Judge Wiley denied the defendants' motion to stay injunctive relief pending appeal. 2012 WL 1378531.

On February 10, 2014, the United States filed an amicus brief, arguing that the defendant’s store entrances were in violation of Title III of the ADA. On March 31, 2014, the circuit court held oral arguments.

Meanwhile, in District Court, Judge Daniel issued an order granting attorney's fees for the plaintiffs on February 26, 2014. He held that the initial amount requested by the plaintiffs was unreasonable, but ordered the defendants to pay a reduced rate of $384,852.57 in attorneys fees and $20,342.51 in costs. 2014 WL 793363

On September 2, 2014, the Circuit Court issued an opinion (authored by Judge Paul Kelly) that reversed on the question of the whether the defendant violated the ADA. The court held that the defendants’ stores' elevated entrances were not a violation of Title III of the ADA because the stores had alternative accessible entrances and because the majority of people do not use the elevated entrances. 765 F.3d 1205. The judgements of the District Court was vacated and remanded.

The plaintiffs filed a petition for rehearing en banc on October 16, 2014. The United States filed an amicus brief supporting the plaintiffs’ petition on November 14, 2014. The circuit court denied the petition on November 14, 2014.

On remand, the district court approved a settlement agreement between the parties for injunctive relief and attorney’s fees on September 25, 2015. As a part of the settlement agreement, the defendant agreed to alter the entrances of at least 92 Hollister stores with elevated entrances and to construct future stores without elevated entrances. The defendant also agreed to pay $190,000 in attorney’s fees and costs. 2015 WL 5695890.

The case is now closed.

Beth Kurtz - 04/09/2013
Sean Mulloy - 10/18/2017


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Issues and Causes of Action
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Issues
Content of Injunction
Reasonable Accommodation
Reporting
Defendant-type
Retailer
Disability
disability, unspecified
Mobility impairment
Discrimination-basis
Disability (inc. reasonable accommodations)
General
Access to public accommodations - privately owned
Barrier Removal
Buildings
Reasonable Accommodations
Reasonable Modifications
Plaintiff Type
Private Plaintiff
Type of Facility
Non-government for profit
Causes of Action Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
State law
Defendant(s) Abercrombie & Fitch Co.
Plaintiff Description 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.
Indexed Lawyer Organizations Civil Rights Education and Enforcement Center
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Case Closing Year 2015
Case Ongoing No
Additional Resources
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Docket(s)
13-01377 (U.S. Court of Appeals)
DR-CO-0020-9001.pdf | Detail
Date: 11/24/2014
Source: PACER [Public Access to Court Electronic Records]
1:09-cv-02757-WYD-KMT (D. Colo.)
DR-CO-0020-9000.pdf | Detail
Date: 09/29/2015
Source: PACER [Public Access to Court Electronic Records]
General Documents
Third Amended and Class Action Complaint [ECF# 73]
DR-CO-0020-0002.pdf | Detail
Date: 08/31/2010
Source: PACER [Public Access to Court Electronic Records]
Defendants' Renewed Motion to Dismiss for Lack of Standing [ECF# 76]
DR-CO-0020-0003.pdf | Detail
Date: 09/20/2010
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Motion for Partial Summary Judgment [ECF# 87]
DR-CO-0020-0004.pdf | Detail
Date: 03/16/2011
Source: PACER [Public Access to Court Electronic Records]
The United States of America's Statement of Interest on Plaintiffs' Motion for Partial Summary Judgment [ECF# 97]
DR-CO-0020-0005.pdf | Detail
Date: 05/31/2011
Source: PACER [Public Access to Court Electronic Records]
Second Amended Order Denying Motion to Dismiss for Lack of Standing [ECF# 98] (2011 WL 2173713) (D. Colo.)
DR-CO-0020-0001.pdf | WESTLAW | Detail
Date: 06/02/2011
Source: PACER [Public Access to Court Electronic Records]
Order Granting Motion for Partial Summary Judgment [ECF# 109] (835 F.Supp.2d 1077) (D. Colo.)
DR-CO-0020-0013.pdf | WESTLAW| LEXIS | Detail
Date: 08/31/2011
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Motion for Class Certification [ECF# 125]
DR-CO-0020-0007.pdf | Detail
Date: 10/31/2011
Source: PACER [Public Access to Court Electronic Records]
Fifth Amended and Class Action Complaint [ECF# 149]
DR-CO-0020-0008.pdf | Detail
Date: 12/08/2011
Source: PACER [Public Access to Court Electronic Records]
Order Granting Class Certification [ECF# 161] (2012 WL 1378531) (D. Colo.)
DR-CO-0020-0009.pdf | WESTLAW | Detail
Date: 04/20/2012
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Motion for Summary Judgment and Entry of Injunction and Entry of Judgment [ECF# 162]
DR-CO-0020-0010.pdf | Detail
Date: 04/27/2012
Source: PACER [Public Access to Court Electronic Records]
Defendant's Motion for Summary Judgment or, in the Alternative, to Vacate August 31, 2011 Order [ECF# 164]
DR-CO-0020-0011.pdf | Detail
Date: 05/03/2012
Source: PACER [Public Access to Court Electronic Records]
The United States of America's Statement of Interest on the Parties' Motions for Summary Judgment [ECF# 181]
DR-CO-0020-0006.pdf | Detail
Date: 06/26/2012
Source: PACER [Public Access to Court Electronic Records]
Order Granting Plaintiffs' Motion for Summary Judgment [ECF# 200] (2013 WL 856510) (D. Colo.)
DR-CO-0020-0012.pdf | WESTLAW | Detail
Date: 03/07/2013
Source: PACER [Public Access to Court Electronic Records]
Permanent Injunction and Administrative Closure of Case [ECF# 211] (D. Colo.)
DR-CO-0020-0014.pdf | Detail
Date: 08/20/2013
Source: PACER [Public Access to Court Electronic Records]
Final Judgment [ECF# 214] (D. Colo.)
DR-CO-0020-0015.pdf | Detail
Date: 09/05/2013
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 233] (D. Colo.)
DR-CO-0020-0023.pdf | Detail
Date: 11/15/2013
Source: PACER [Public Access to Court Electronic Records]
Brief for the United States as Amicus Curiae Supporting Plaintiffs-Appellees [Ct. of App. ECF# 01019200243]
DR-CO-0020-0018.pdf | Detail
Date: 02/10/2014
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 245] (2014 WL 793363) (D. Colo.)
DR-CO-0020-0021.pdf | WESTLAW | Detail
Date: 02/26/2014
Source: PACER [Public Access to Court Electronic Records]
Order and Opinion [Ct. of App. ECF# 01019303233] (765 F.3d 1205)
DR-CO-0020-0017.pdf | WESTLAW| LEXIS | Detail
Date: 09/02/2014
Source: PACER [Public Access to Court Electronic Records]
Order [Ct. of App. ECF# 10224425]
DR-CO-0020-0019.pdf | Detail
Date: 11/14/2014
Source: PACER [Public Access to Court Electronic Records]
Settlement Agreement [ECF# 254]
DR-CO-0020-0022.pdf | Detail
Date: 04/03/2015
Source: PACER [Public Access to Court Electronic Records]
Order Granting Plaintiffs' Unopposed Motion for Final Approval of Class Action Settlement Agreement and Awarding Attorneys' Fees [ECF# 262] (2015 WL 5695890) (D. Colo.)
DR-CO-0020-0016.pdf | WESTLAW | Detail
Date: 09/29/2015
Source: PACER [Public Access to Court Electronic Records]
Judges Daniel, Wiley Young (D. Colo.)
DR-CO-0020-0001 | DR-CO-0020-0009 | DR-CO-0020-0012 | DR-CO-0020-0013 | DR-CO-0020-0014 | DR-CO-0020-0015 | DR-CO-0020-0016 | DR-CO-0020-0021 | DR-CO-0020-0023 | DR-CO-0020-9000
Kelly, Paul Joseph Jr. (Tenth Circuit)
DR-CO-0020-0017 | DR-CO-0020-0019
McHugh, Carolyn Baldwin (Tenth Circuit)
DR-CO-0020-0017 | DR-CO-0020-0019
Tafoya, Kathleen M. (D. Colo.) [Magistrate]
DR-CO-0020-9000
Tymkovich, Timothy M. (Tenth Circuit)
DR-CO-0020-0017 | DR-CO-0020-0019 | DR-CO-0020-9001
Plaintiff's Lawyers Benham-Baker, Hillary Jo (California)
DR-CO-0020-9001
Campins, Julia (California)
DR-CO-0020-0002 | DR-CO-0020-0004 | DR-CO-0020-0007 | DR-CO-0020-0008 | DR-CO-0020-0010 | DR-CO-0020-9000 | DR-CO-0020-9001
Fox, Timothy Patrick (Colorado)
DR-CO-0020-9000 | DR-CO-0020-9001
Lee, Bill Lann (California)
DR-CO-0020-0002 | DR-CO-0020-0004 | DR-CO-0020-0007 | DR-CO-0020-0008 | DR-CO-0020-0010 | DR-CO-0020-9000 | DR-CO-0020-9001
Lucas, Carrie Ann (Colorado)
DR-CO-0020-0002 | DR-CO-0020-0004 | DR-CO-0020-9000
Montoya, Andrew Christopher (Colorado)
DR-CO-0020-0007 | DR-CO-0020-0008 | DR-CO-0020-0010 | DR-CO-0020-9000 | DR-CO-0020-9001
Robertson, Amy Farr (Colorado)
DR-CO-0020-0002 | DR-CO-0020-0004 | DR-CO-0020-0007 | DR-CO-0020-0008 | DR-CO-0020-0010 | DR-CO-0020-9000 | DR-CO-0020-9001
Williams, Kevin William (Colorado)
DR-CO-0020-0002 | DR-CO-0020-0004 | DR-CO-0020-0007 | DR-CO-0020-0008 | DR-CO-0020-0010 | DR-CO-0020-9000 | DR-CO-0020-9001
Defendant's Lawyers Ball, Michael Jacob (Ohio)
DR-CO-0020-9001
Eurich, Gregory Alan (Colorado)
DR-CO-0020-0003 | DR-CO-0020-9000 | DR-CO-0020-9001
Knueve, Mark A. (Ohio)
DR-CO-0020-0003 | DR-CO-0020-0011 | DR-CO-0020-9000 | DR-CO-0020-9001
Miller, Richard T. (Ohio)
DR-CO-0020-0003 | DR-CO-0020-0011
Neguse, Joseph (Colorado)
DR-CO-0020-9000 | DR-CO-0020-9001
Ridgley, Thomas Brennan (Ohio)
DR-CO-0020-0003 | DR-CO-0020-0011 | DR-CO-0020-9000 | DR-CO-0020-9001
Other Lawyers Bagenstos, Samuel R. (District of Columbia)
DR-CO-0020-0005
Foran, Sheila (District of Columbia)
DR-CO-0020-0006
Friel, Gregory (District of Columbia)
DR-CO-0020-0006
Gross, Mark L. (District of Columbia)
DR-CO-0020-0018 | DR-CO-0020-9001
Hill, Eve L. (District of Columbia)
DR-CO-0020-0006
Kijewski, Kevin J. (District of Columbia)
DR-CO-0020-0006
Nichol, Allison (District of Columbia)
DR-CO-0020-0005
Perez, Thomas E. (District of Columbia)
DR-CO-0020-0005 | DR-CO-0020-0006
Robin-­Vergeer, Bonnie I. (District of Columbia)
DR-CO-0020-9001
Samberg-Champion, Sasha M. (District of Columbia)
DR-CO-0020-0018
Samuels, Jocelyn (District of Columbia)
DR-CO-0020-0018
Sinha, Nabina (District of Columbia)
DR-CO-0020-0006 | DR-CO-0020-9000
Uzeta, Michelle (California)
DR-CO-0020-9001
Wodatch, John L. (District of Columbia)
DR-CO-0020-0005
Wohlenhaus, Renee M. (District of Columbia)
DR-CO-0020-0005
Wolfe, Kathleen P. (District of Columbia)
DR-CO-0020-0005

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