Defendants-Appellants. APPELLANTS’ MOTION TO STAY ......2013/11/25 · Appellants Abercrombie &...

IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

COLORADO CROSS-DISABILITY COALITION, et al., Case No. 13-1377

Plaintiffs-Appellees,

V.

ABERCROMBIE & FITCH CO., et al.,

Defendants-Appellants.

APPELLANTS’ MOTION TO STAY INJUNCTIVE RELIEF PENDING APPEAL

Appellants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., and

J.M. Hollister LLC ("Abercrombie") move the Court pursuant to Fed. R. App. P. 8

to stay the injunction entered by the District Court on August 20, 2013 (ECF No.

211) until their appeal is adjudicated by this Court. The injunction requires

Abercrombie to reconstruct the entrances of hundreds of retail clothing stores, at a

cost of nearly $9 million, under strict deadlines that require them to complete the

work at 77 stores each year beginning five weeks from now. As set forth in the

attached Memorandum in Support, the District Court granted this relief based on

its resolution of substantial legal issues of first impression that warrant appellate

review, and the injunction entered below will cause irreparable harm and

Appellate Case: 13-1377 Document: 01019163007 Date Filed: 11/25/2013 Page: 1

effectively render this appeal moot unless it is stayed to temporarily preserve the

status quo.

Abercrombie previously conferred with Appellees and asked them to agree

to a stay of the injunction pending appeal, but the parties were unable to agree, and

Appellees oppose this Motion.

Respectfully submitted,

s/ Mark A. Knueve

Thomas B. Ridgley Mark A. Knueve Richard T. Miller VORYS, SATER, SEYMOUR AND PEASE LLP 52 E. Gay Street P.O. Box 1008 Columbus, Ohio 43215 Tel: (614) 464-6387 Fax: (614) 719-4808 [email protected]

OF COUNSEL:

HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, CO 80201-8749 Tel: (303) 295-8749 Fax: (303) 975-5464 geurich(2ho1landhart.com

Counsel for Defendants-Appellants


CORPORATE DISCLOSURE STATEMENT

Appellant Abercrombie & Fitch Co. discloses that it has no parent

corporation and that no publicly held corporation owns 10% or more of its stock.

Appellant Abercrombie & Fitch Stores, Inc., discloses that its parent

corporation is Abercrombie & Fitch Co., which is a publicly traded company. No

other publicly-held corporation owns 10% or more of its stock.

Appellant J.M. Hollister LLC, d/b/a Hollister Co., discloses that its

parent corporation is Abercrombie & Fitch Co., which is a publicly traded

company. No other publicly-held corporation owns 10% or more of its stock.


MEMORANDUM IN SUPPORT OF APPELLANTS’ MOTION TO STAY INJUNCTIVE RELIEF PENDING

APPEAL

I. Introduction

A. Jurisdiction

The District Court had jurisdiction over this litigation pursuant to 28 U.s.c.

1331 because Appellees asserted a single claim for injunctive relief under the

Americans with Disabilities Act, 42 u.s.c. 12181, et seq. (Complaint, ECF No. 1.)

The District court entered final judgment on September 5, 2013, granting a

permanent injunction that awarded all of the relief sought by Appellees. (Final

Judgment, ECF No. 214.) Appellants ("Abercrombie") timely appealed from the

final judgment on September 9, 2013. (Notice of Appeal, ECF No. 216.) This

Court now has appellate jurisdiction over the appeal pursuant to 28 U.S.C. 1291.

B. The District Court’s rulings on the merits

Appellees filed this action alleging that 231 Hollister clothing stores violate

the Americans With Disabilities Act ("ADA"), 42 U.S.C. 12181, et seq., because

they have one elevated entry door (which is located at the front of each store on a

porch-like structure with steps) in addition to two level, fully accessible entry

doors (which are also located at the front of the store, on each side of the elevated

entry door). The District Court granted summary judgment to Appellees (Order,

ECF No. 200) and then entered final judgment and a permanent injunction

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requiring Abercrombie to remove, ramp, or close off all of the elevated entry doors

at these stores by January 1, 2017, at a rate of at least 77 stores each year,

beginning on January 1, 2014. (Permanent Injunction, ECF No. 211.)

The District Court’s order granting injunctive relief was based upon rulings

on several legal questions of first impression that will be addressed in

Abercrombie’s appeal to this Court, including (1) whether Appellees and their

putative class members have standing to obtain injunctive relief against Hollister

stores where they have never shopped and have no intention of shopping in the

future; (2) whether the three adjacent entry doors at the front of each Hollister store

violate the ADA Standards that define ADA accessibility requirements;

(3) whether class certification and class-wide relief is proper in the absence of any

showing that members of the defined class actually exist as to any store; and

(4) whether the District Court was correct in refusing to balance the benefits and

harms to the parties in deciding whether to grant injunctive relief.

C. The District Court’s ruling on Abercrombie’s motion to stay

The injunction entered by the District Court requires Abercrombie to

complete extensive (and expensive) construction work at hundreds of Hollister

stores on a strict time-table, and Abercrombie’s appeal will be rendered moot if it

must begin this work and incur millions of dollars in costs before this Court has an

opportunity to rule on the novel legal issues presented by this case.

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Abercrombie moved the District Court to stay the injunction pending the

resolution of its appeal (Motion, ECF No. 217), but the motion was denied.

(Order, ECF No. 233.) The Court concluded that Abercrombie failed to show that

it will sustain irreparable injury in the absence of a stay, after finding that the

$8 million to $9 million cost of complying with the injunction, and the disruption

of business at the stores during construction work, are "relatively minor" harms in

relation to Abercrombie’s net worth; that Appellees will suffer substantial harm if

a stay is granted because they will "continue suffering the indignity" of using

accessible entry doors at stores that also have one elevated entry door; and that

Abercrombie is not likely to prevail on appeal, so the public interest is best served

if Abercrombie complies with the injunction now. (Id., at 3-5.)

As explained below, the legal issues presented by this appeal are serious,

substantial, difficult, and doubtful, and they warrant appellate review before they

are mooted by the demolition of the store entrances. Moreover, Abercrombie will

be irreparably harmed if the store entrances must be torn out before the Court of

Appeals has time to consider and resolve these important legal questions, while

Appellees, who admit that they are "ADA testers" who have no interest in

shopping at Hollister stores, will sustain no injury if a temporary stay is entered

that preserves the status quo. Accordingly, Abercrombie respectfully moves the

Court to stay the District Court’s injunction pending appeal.

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II. Argument

A. Applicable legal standards

"[A] s part of its traditional equipment for the administration of justice, a

federal court can stay the enforcement of a judgment pending the outcome of an

appeal" in order to "hold a ruling in abeyance to allow an appellate court the time

necessary to review it." Nken v. Holder, 556 U.S. 418, 421 (2009), quoting

Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 9 (1942). The Courts of Appeals

have authority to stay a District Court’s injunction, although a party must

ordinarily first move the district court for a stay pending appeal. Fed. R. App. P.

8(a)(1)(C). See, e.g., Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th

Cir. 2001). Abercrombie unsuccessfully moved the District Court for a stay of the

injunctive relief in this case. See ECF No. 217; ECF No. 233.

"The purpose of a stay is to preserve the status quo pending appellate

determination." Mainstream Marketing Services, Inc. v. FTC, 284 F. Supp.2d

1266, 1268 (D. Cob. 2003), quoting McClendon v. City ofAlbuquerque, 79 F.3d

1014, 1020 (10th Cir. 1996). In Nken, supra, the Supreme Court explained that, in

addition to protecting the parties’ rights, a stay pending appeal "allows an appellate

court to act responsibly."

A reviewing court must bring considered judgment to bear on the matter before it, but that cannot always be done quickly enough to afford relief to the party aggrieved by the order under review. The choice for a

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reviewing court should not be between justice on the fly or participation in what may be an "idle ceremony." The ability to grant interim relief is accordingly not simply "an historic procedure for preserving rights during the pendency of an appeal," but also a means of ensuring that appellate courts can responsibly fulfill their role in the judicial process.

556 U.S. at 427 (citations omitted).

The grant of a stay pending appeal is discretionary. Middle Rio Grande

Conservancy Dist. v. Norton, 294 F.3d 1220, 1231 (10th Cir. 2002). But "[t]he

fact that the issuance of a stay [pending appeal] is left to the court’s discretion does

not mean that no legal standard governs that discretion.... ’[A] motion to [a

court’s] discretion is a motion, not to its inclination, but to its judgment; and its

judgment is to be guided by sound legal principles." Nken, supra, 556 U.S. at

434, quoting United States v. Burr, 25 F. Cas. 30, 35 (CC Va. 1807) (Marshall,

C.J.).

"The propriety of [a stay pending appeal] is dependent upon the

circumstances of each case." Nken, 556 U.S. at 433, quoting Virginian R. Co. v.

United States, 272 U.S. 658, 672 (1926). This "require[s] individualized

consideration and assessment." McClendon, supra, 79 F.3d at 1020. The Court’s

discretion in deciding whether to stay an injunction pending an appeal is guided by

"consideration of four factors":

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the


applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Nken, supra, 556 U.S. at 434, quoting Hilton v. Braunskill, 481 U.S. 770, 776

(1987). See also Mainstream Marketing Services, supra, 284 F. Supp.2d at 1268

(same).

The first two factors "are the most crucial." Nken, supra, 556 U.S. at 566.

In the Tenth Circuit, courts have addressed the first factor -- the likelihood of

success on the merits -- after the other three factors because they determine the

way that the first factor is applied. "If defendants can meet the other [three]

requirements for a stay pending appeal, they will be deemed to have satisfied the

likelihood of success on appeal element if they show ’questions going to the merits

so serious, substantial, difficult, and doubtful, as to make the issues ripe for

litigation and deserving of more deliberate investigation;" defendants are not

required to show that success on the merits is "probable" in these circumstances.

McClendon, supra, 79 F.3d at 1020, quoting Walmer v. United States Dept. of

Defense, 52 F.3d 851, 854 (10th Cir. 1994), certiorari denied, 516 U.S. 974

(1995). See also Precision Concrete Cutting, Inc. v. Concrete Sidewalk Solutions,

Inc., No. 1 1-cv-01 123, 2012 U.S. Dist. Lexis 25838, at *11 (D. Cob. 2012) ("[i]f

the moving party establishes that the three ’harm’ factors weigh decidedly in its

favor, the ’likelihood of success’ requirement is somewhat relaxed").


B. A stay pending appeal is appropriate in this case

Analysis of the four Nken factors in the circumstances of this case

demonstrates that a stay of injunctive relief pending appeal is appropriate. As set

forth below, the three "harm" factors -- i.e., whether Abercrombie will suffer

irreparable injury absent a stay, whether a stay will substantially injure Appellees,

and whether a stay is in the public interest -- tip decidedly in Abercrombie’s favor,

and the legal issues before this Court on appeal are sufficiently serious and

uncertain to satisfy the first factor.

1. Abercrombie will sustain irreparable harm if a stay is not entered by this Court

In deciding whether to enter a stay of an injunction pending appeal, the

second Nken factor considers "whether the applicant will be irreparably injured

absent a stay." Hilton, supra, 481 U.S. at 776. An injury constitutes irreparable

harm if it is "both certain and great." Prairie Band of Potawatomi Indians v.

Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001). "In evaluating irreparable injury,

courts normally look to the harm alleged by the movant, then assess the

substantiality of the claimed injury, the likelihood of its occurrence, and the

sufficiency of the proof." Tri-State Truck Insurance v. First National Bank of

Wamego, No. 09-4158, 2011 U.S. Dist. Lexis 111927, at *6 (D. Kan. 2011). A

"speculative and remote injury" that "might" occur is not sufficient. Malone v.

Mukasey, No. 08-cv-0 1795, 2009 U.S. Dist. Lexis 116771, at *3 (D. Cob. 2009).

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In this case, Abercrombie demonstrated that it will suffer an injury in the

absence of a stay that is both certain and great. The District Court’s permanent

injunction requires Abercrombie to reconstruct the entrances of 231 Hollister

stores at an estimated cost of $8 million to $9 million. (Bondy Declaration, ECF

No. 204-1, at ¶ 3; attached as Exhibit A.) The injunction imposes strict deadlines;

Abercrombie must remodel not less than 77 stores during the next year, and at least

77 more stores in each of the following years, so that all store entrances are

reconstructed by no later than January 1, 2017, with one possible six-month

extension. (Permanent Injunction, ECF No. 211, at 4.) Business activities at

Hollister stores will be disrupted while these entrances are torn out and

reconstructed, resulting in lost sales and lost customer goodwill. This expense is

irreparable and cannot be recovered after Abercrombie prevails on appeal and

returns the store entrances to their present form. In short, these harms are

substantial and irreparable, and they cannot be avoided unless the injunction is

stayed.

The District Court acknowledged that Abercrombie will have to spend

millions of dollars to comply with its injunction, and that normal business

operations at the stores will necessarily be disrupted during the construction work.

(Order, ECF No. 233, at 3-4.) However, it concluded that this does not constitute

irreparable harm because: (1) the injunction "only requires that 77 store entrances


be remodeled each year;" (2) the injunction will "not commence until after the

2013 holiday retail season;" and (3) the $8 million to $9 million of construction

costs is "relatively minor" compared to Abercrombie’s 2012 net income of $237

million. (Id.)

The District Court thus improperly assumed that tearing the entrances out of

"only" 77 stores each year for three years will not significantly disrupt business,

even though it delayed the commencement of the injunction until January, 2014, 50

that business would not be disrupted by construction work this holiday season. In

any event, $8 million to $9 million remains a very large sum of money, and

indisputably qualifies as an injury, even when compared to the net income of the

entire company. Abercrombie has demonstrated substantial harm that is

indisputably irreparable, and this factor supports a stay pending appeal.

2. Appellees will not sustain any substantial injury if this Court enters a stay pending appeal

The next factor that the Court must consider is "whether issuance of the stay

will substantially injure the other parties." Nken, supra, 556 U.S. at 434. In this

case, Appellees will incur no financial costs of any kind if a stay is issued pending

appeal. See Mainstream Marketing Services, supra, 284 F. Supp.2d at 1269

(denying a stay because it would cause "substantial economic injury" to the

plaintiffs). The status quo will be maintained in every respect, and there will still


be two automatic entry doors at the front of each store that are fully accessible to

people who use wheelchairs.

The District Court concluded that a stay pending appeal would cause

Appellees substantial harm, consisting of "the dignity harm" of entering a Hollister

store with an elevated entry door through one of its level entry doors. (Order, ECF

No. 233, at 4.) But Appellees themselves testified at their depositions that they

have no interest in shopping at Hollister stores and, thus, will not sustain that

injury. See, e.g., Hansen Dep., at 25, 27-29, 31, 34-35, 97-98, 104-105 (attached

as Exhibit B); Farrar Dep., at 22-24, 32-34, 46-48, 50, 53-55, 78 (attached as

Exhibit Q. They claim to be ADA "testers" for Appellee CCDC, but they have no

reason to conduct their testing at Hollister stores while this appeal is pending.

In this case, there is no indication "that any real prejudice, other than delay

itself, will occur if a stay is granted," and mere delay "fails to show substantial

harm." Tri-State Truck Ins., supra, 2011 U.S. Dist. Lexis 111927, at *8. By

definition, a stay pending appeal results in a delay until the appeal is resolved, but

no stay could ever be entered if this was enough to demonstrate substantial harm.

Sierra Club, supra, 2003 U.S. Dist. Lexis 28217, at *15.

Here, a stay pending appeal will simply preserve the status quo until the

important and novel legal issues presented by this appeal are considered and

decided by the Court. If Appellees and the unidentified class members ever decide

10


that they want to shop at Hollister stores, they will continue to have access through

the two level, fully automatic entry doors that are adjacent to the elevated entry

door at the front entrances of the stores. Accordingly, this factor also tips in favor

of staying injunctive relief pending appeal.

3. The public interest favors a stay pending appeal in the circumstances of this case

The Court must also consider "where the public interest lies" in deciding

whether to grant a stay pending appeal. Hilton, supra, 481 U.S. at 776. "The

public interest inquiry primarily addresses the impact on non-parties rather than

parties." Sammartano v. First Judicial District Court, 303 F.3d 959, 974 (9th Cir.

2002). In the present case, there are two competing public interests at issue.

First, the public obviously has an interest in the proper enforcement of ADA

requirements. However, this begs the question of what the ADA legally requires in

this case. The District Court found with respect to this factor that "the public

would be best served with companies complying with ADA requirements." (ECF

No. 233, supra, at 5.) But if this Court ultimately concludes in this appeal that the

entrances of the Hollister stores comply with ADA requirements, the public

interest will not be adversely affected by a stay. Accordingly, it is impossible to

predict in advance whether the public interest is served in this case by granting a

stay or by denying a stay.

11


Second, the public also has an obvious interest in avoiding an unnecessary

waste of economic resources. If a stay is not entered during this appeal,

Abercrombie must spend $8 million to $9 million to remove the elevated entry

doors and construct new entrances at 231 stores, and that money will be wasted if

it prevails in this appeal. If a stay is entered, this colossal expense will be

minimized regardless of whether appellees or Abercrombie ultimately prevail.

Accordingly, this factor also favors granting Abercrombie’s motion for a

stay pending appeal.

4. Likelihood of success on merits

As noted above, the first Nken factor -- the likelihood of success on the

merits of the appeal -- is considered last because the other three factors affect the

way that it is applied. "[W]here the moving party has established that the three

’harm’ factors tip decidedly in its favor, the ’probability of success’ requirement is

somewhat relaxed. . . [and] is demonstrated when the petitioner seeking the stay has

raised ’questions going to the merits so serious, substantial, difficult, and doubtful

as to make the issue ripe for [appellate] litigation and deserving of more deliberate

investigation." FTC v. Mainstream Marketing Services, Inc., 345 F.3d 850, 852-

53 (10th Cir. 2003), quoting Prairie Band, supra, 253 F.3d at 1246-47. See also

McClendon, supra, 79 F.3d at 1020 (same; "[t]he purpose of a stay is to preserve

the status quo pending appeal" when "a serious legal question" is presented);

12


Desktop Images, supra, 930 F. Supp. at 1452 (courts may properly stay orders

pending appeals of "an admittedly difficult legal question ... when the equities of

the case suggest that the status quo should be preserved," even if it is not

"probable" that the judgment below will be reversed on appeal).

For example, the Court granted a stay pending appeal in Center for Intern.

Environ. Law v. Office of US. Trade Representative, 240 F. Supp.2d 21, 22

(D.D.C. 2003), even though it "did not agree with defendants’ position on the

merits," because they had made out a "substantial case" as to "an issue of first

impression." The fact that an appeal is "centered on a novel and admittedly

difficult legal question weighs in favor of a stay." Id. See also Prairie Band,

supra, 253 F.3d at 1239, where this Court noted that it properly granted a stay of

an injunction pending appeal even though it had ultimately affimied the injunction.

The summary judgment order in the present case was based on the District

Court’s rulings on several important legal questions of first impression. For

example, no other federal court has addressed whether adjacent entry doors located

at the front of a building collectively constitute a single "entrance" and therefore

comply with the recently revised ADA Standards. Second, Abercrombie’s appeal

also presents the still-unanswered question of whether plaintiffs and class members

have a prospective injury-in-fact, and thus have standing to obtain injunctive relief

against a store in the absence of any evidence that they have ever been to that store,

13


or that they have any intention of patronizing that store in the future. Third, this

appeal raises the fundamental question of whether federal courts should balance

the respective benefits and harms to the parties in deciding whether to grant

injunctive relief under the ADA.

These unsettled legal questions are "serious, substantial, difficult, and

doubtful" and are therefore deserving of appellate consideration before

Abercrombie is required to disrupt its business activities and spend millions of

dollars for renovations that this Court may find unnecessary. Accordingly, this

factor also favors entering a stay pending appeal.

C. A stay pending appeal should preserve the time period that the injunction allows for full compliance

Abercrombie’s counsel met with Appellees’ counsel and attempted to reach

agreement on a stay of the District Court’s injunction pending appeal. However,

Appellees insisted that the final deadline imposed by the injunction for

reconstructing the entrances of all of the 231 stores -- January 1, 2017 -- must

remain in place. This would not preserve the 3-year time period that the District

Court found reasonable for full compliance with the injunction. Abercrombie

would have to complete all the reconstruction work in whatever time remained

between the decision of this Court on appeal and January 1, 2017, if the Court

affirms the judgment.

14


This would defeat the purpose of a stay pending appeal. Abercrombie would

not be able to meet the January 1, 2017, deadline for full compliance with the

terms of the injunction unless this Court could rule on the difficult and unsettled

legal issues in the appeal almost immediately. The purpose of the stay would be

thwarted if the deadline for full compliance was not extended; Abercrombie would

still have to begin reconstruction of the store entrances before this Court rules on

the merits in order to meet the deadline and would therefore sustain the irreparable

harm described above. Instead, the stay should operate as a true stay and postpone

the deadlines established by the injunction for the amount of time that elapses

during this appeal, so that Abercrombie will ultimately have the same time period

for full compliance that the injunction now allows, but measured from the date of

this Court’s ruling on appeal rather than from the date of the District Court’s

judgment.

III. Conclusion

For the reasons set forth above, Abercrombie respectfully moves the Court

to stay the permanent injunction that the District Court entered in this matter,

pending appeal, and to preserve the time period that the injunction allows for

completing all reconstruction of the Hollister stores.

15


Respectfully submitted,

s/ Mark A. Knueve

Mark A. Knueve Michael J. Ball VORYS, SATER, SEYMOUR AND PEASE LLP 52 E. Gay Street P.O. Box 1008 Columbus, Ohio 43215 Tel: (614) 464-6387 Fax: (614) 719-4808 maknueve@vorys . corn

16


OF COUNSEL:

HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, CO 80201-8749 Tel: (303) 295-8749 Fax: (303) 975-5464 geurich(ho11andhart. corn

Counsel for Defendants

17


CERTIFICATE OF SERVICE

I hereby certify that on November 25, 2013, I have caused to be electronically filed the foregoing with the Clerk of Courts using CM/ECF system which will send notification of such filing to the following e-mail addresses:

Kevin W. Williams Andrew C. Montoya E-mail: [email protected] E-mail: [email protected]

Amy F. Robertson E-mail: [email protected]

Bill Lann Lee E-mail: blee(Zlewisfeinberg.com

Julia Campins E-mail: [email protected]

/s/ Mark A. Knueve Mark A. Knueve OF VORYS, SATER, SEYMOUR & PEASE LLP 52 E. Gay Street Columbus, Ohio 43215 Phone: (614) 464-6400 Fax: (614) 464-6350 [email protected]

t 1 21 5.2013 18055744


Case 1:09-cv-02757-WYD-KMT Document 204-1 Filed 05/17/13 USDC Colorado Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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

COLORADO CROSS-DISABILITY COALITION, et at.,

Plaintiffs,

V.

ABERCROMBIE & FITCH STORES, INC., et al.,

Defendants.

DECLARATION OF MICHAEL BONDY

1. I am employed by Abercrombie & Fitch Stores, Inc. ("Abercrombie") as Senior

Project Manager in the Store Construction Department. My job duties include overseeing special

projects relating to stores, including retrofits, remodels, and other projects. I make this

Declaration from my own personal knowledge and, if called as a witness, could and would

competently testify to the following matters.

2. I have been provided with a copy of the [Proposed] Permanent Injunction filed by

the Plaintiffs in this case, and I have reviewed it. As I understand the [Proposed] Permanent

Injunction, it proposes that the Company be required to take one of three actions, to be

completed by December 31, 2015. I address each of those proposals herein.

3. First, the [Proposed] Permanent Injunction proposes that the Company remove the

steps at the porch-like structure of all Hollister stores throughout the United States. I and others

at the Company have investigated this proposal. There are currently approximately 231 Hollister

stores with steps at the porch-like structure. Removal of the steps at all 231 Hollister stores

throughout the United States would cost the Company an estimated $8 million to $9 million.

Furthermore, based upon our investigation, to perform the work at each store, we would need to

E 1T


Case 1:09-cv-02757-WYD-KMT Document 204-1 Filed 05/17/13 USD0 Colorado Page 2 of 3

close the entry door at the porch-like structure of the store an estimated 7-10 days while the work

is being performed at the store. This would obviously cause disruption at the store, lost customer

traffic, and lost sales. We have not been able to quantify the expected loss in sales with

specificity.

4. Second, the [Proposed] Permanent Injunction proposes that the Company provide

ramps at the porch-like structure of all Hollister stores throughout the United States. I and others

at the Company have investigated this proposal. We have determined that it is not physically

possible to put ramps at the porch-like structures in a safe manner which would be consistent

with the 2010 ADA Guidelines. This is because the Guidelines require that any ramp extend 12

inches for each one inch of drop. This would cause the ramps to extend too far into the store to

provide safe passage, and would be negative to the Hollister brand.

5. Third, the [Proposed] Permanent Injunction proposes that the Company

permanently close off to all customers the entry door at the porch-like structure of all bluster

stores throughout the United States. I and others at the Company have investigated this proposal.

We have determined that this is the worst, and least acceptable, of the three options provided in

the [Proposed] Permanent Injunction. Closing off the entry door at the porch-like structure to all

customers would be extremely detrimental to the Company’s carefully crafted branding efforts.

It would be confusing to customers, and contrary to the intended store design, which is that the

store have three entry doors, two of which are accessible. Closing off the entry door to all

customers would cause permanent damage to the Hollister brand and an immense and

unquantifiable loss in sales and revenue.


Case 1:09-cv-02757-WYD-KMT Document 204-1 Piled 05/17/13 USD0 Colorado Page 3 of 3

I was part of the team that coordinated placement of door handles, and a "Bettys"

sign and a "Dudes" sign at the accessible entry doors of the Park Meadows Hollister store in

Denver, Colorado. The Company has estimated that making similar changes at all Hollister

stores with steps across the United States would cost less than $300,000.

1 declare under penalty of perjury under the laws of the United States that the foregoing is

true and correct.

Executed on May , 2013, in New Albany, Ohio,

Michael Bondy


Case 1:09-cv-02757-WYD-KMT Document 155-1 Filed 12(23/11 USDC Colorado Page 11 of

Anita Hansen

I

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No.: 09-cv-02757--WYD-KMT COPY COLORADO CROSS-DISABILITY COALITION, et al.,

Plaintiffs,

VS.


Defendants.

DEPOSITION OF ANITA L. HANSEN

PURSUANT TO NOTICE, the

above-entitled deposition was taken on behalf of

the Defendants at the offices of Holland & Hart,

LLP, 555 Seventeenth Street, Suite 3200, Denver,

Colorado, on November 9, 2011, at 8:56 a.m., before

Jana Mackeiprang, Certified Realtime Reporter,

Registered Professional Reporter, and Notary

Public.

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Calderwood-Mackeiprang, Inc. 303.477.3500



Anita Hansen

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1

Q. Have you encountered barriers to

2 accessibility at Macy’s, when you visit there?

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A. No, I haven’t.

4

Q. How about Dillard’s?

5

A. No.

6

Q. Have you encountered any barriers to

7 accessibility at the Southwest Plaza Mall?

8

A. No.

9

Q. When was the first time that you even

10

knew that there was a store called Hollister?

11

A. I had seen the store at Park Meadows,

12

but never went in. I didn’t have an interest in it.

13

Q. Why didn’t you have an interest in it?

14

A. Just from the front of the store and

15 seeing the kind of clothes.

16

Q. Is it fair to say that the kind of

17 clothes that Hollister sells are not the kind of

18

clothes that you wear?

19

A. Correct.

20

Q. Is it fair to say that the kind of

21 clothes that Hollister sells are not the kind of

22 clothes that Erika would wear, your daughter?

23

A. No, they would be.

I

24

Q. Okay. Is it fair to say that you

25

first saw a Hollister store at the Park Meadows

Calderwood-Mackelprang, Inc. 303.477.3500



Anita Hansen

27

1

A. Cherry Creek.

2

Q. In some of the documents, you have

3 described a visit that you made to a Hollister store

4

in the Park Meadows Mall. Was that the first visit

5 you’d ever made to a Hollister store?

6

A. No. The first visit was to the one at

7

Orchard.

8

Q. I apologize. The first Hollister

9 Istore that you ever visited was at Orchard Town

10

Center?

11

A. Correct.

12

Q. And when was that?

13

A. I’m not sure of the date, but I’m

14

thinking the summer of ’09.

15

Q. And is that visit, to the best of your

16

knowledge, documented in the complaint in this

17 action?

18

A. I believe it is.

19

Q. Why did you go to the Hollister store

20 at Orchard Town Center?

21

A. Well, other than the fact it was a new

22 outdoor mall and those were kind of new, I knew that

23 there was a Hollister store that I planned to go in

I

24 because of my caregiver having mentioned it.

25

Q. Is that Elizabeth Parsons?




Anita Hansen

28

1

A. Correct.

2

Q. What did Elizabeth Parsons say about

3

Hollister?

4

A. I’m not sure how -- I’m not sure if it

5 was Elizabeth first or someone at CCDC that

6 mentioned it.

7

Q. Well, you just said that you planned

8 to go to Orchard Town Center because your caregiver

9 mentioned it. What I’d like to know is what your

10 caregiver mentioned.

11

A. She mentioned something about

12

accessibility issues.

13

Q. And so you went to the FloJjister at

14

Orchard Town Center for the express reason of seeing

15

the accessibility issues for yourself?

16

A. Correct, and visiting -- excuse me --

17 and visiting some of the other stores.

18

Q. Were there other stores that you were

19 specific -- that’s terrible.

20

Were there other stores that you were

21 specifically interested in visiting?

22

A. None in particular. Just to see what

23

kind of stores that were there and to have lunch.

24

Q. It was a new mall, and you wanted to

25

see what was going on?

Calcierwood-Mackeiprang, Inc. 303.477.3500



Anita Hansen

29

1

A. Yes.

2

Q. But the reason that you visited

3

Hollister was for the express reason of testing the

4 accessibility?

5

A. Yes, and to make a purchase for my

6

daughter.

7

Q. Would you have gone to Hollister to

8 make a purchase if you were not -- if you hadn’t

9

heard about the accessibility issues?

10

A. Maybe not.

11

Q. Have you ever been on Hollister’s

12

website?

13

A. No, I haven’t.

14

Q. Have you ever made a purchase from

15

Hollister before?

16

A. Just that day. Also, I have a young

17

lady who works for me, and she wears Hollister

18

clothes quite often.

19

Q. What’s her name?

20

A. Mallory Snyder.

21

Q. What does she do for you?

22

A. Just comes over and helps me clean my

23

office and do laundry.

24

Q. You mentioned an office. Do you have

25 la home office?



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Case 1:09-cv-02757-WYD-KMT Document 155-1 Filed 12/23/11 USDC Colorado Page 21 of H: 77

Anita Hansen

3]

1

MR. WILLIAMS: Object to the form.

2

You can answer that.

3

THE DEPONENT: The question again,

4

please.

Q. (By Mr. Knueve) Let me ask it a

different way. Prior to visiting the Hollister at

Orchard Town Center, were you aware that CCDC was

investigating Hollister?

A. Yes.

Q. How were you aware of that?

A. From Ms. Parsons or someone at CCDC.

Q. And so that, again, was part of the

reason that you were visiting Hollister, to

participate in CCDC’s investigation?

A. Yes.

Q. Who went with you?

A. Ms. Parsons and her daughter.

Q. And what’s Ms. Parsons’ daughter’s

name?

A. Danielle.

Q. And how old is she?

A. She was five at the time.

Q. Erika didn’t go with you?

A. No.

Q. Do you know, is Ms. Parsons a member




Anita Hansen

34

expected Park Meadows to be the same as Orchard Town

Center?

A. No.

Q. Had anybody told you that Park Meadows

would be the same as Orchard Town Center?

A. No.

Q. Unlike Orchard Town Center, Park

Meadows is an inside mall, correct?

A. Yes.

Q. Other than the Orchard Town Center

Hollister and the Park Meadows Hollister, have you

been to any other Hollister store?

A. I haven’t been inside one, no.

Q. I saw in the materials that you got

near one, I guess, in Beaumont, Texas.

A. Correct.

Q. What were you doing in Beaumont?

A. Visiting family.

Q. Who were you visiting?

A. My family, my parents, my sister.

Q. And you went shopping when you were

down there visiting?

A. Yes.

Q. And while you were shopping, you saw a

Hollister store?

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Calderwood- Macke iprang, Inc. 303.477.3500



Anita Hansen

35

1

A. From a distance, yes.

2

Q. How close did you get to it?

3

A. Several stores down, I could see the

4

sign.

5

Q. Before you saw the sign, you had no

6

intention of shopping at Hollister?

7

A. Not that day.

8

Q. Now, the materials that I have suggest

9

that there are no steps at the Beaumont, Texas,

10

Hollister.

11

A. Right.

12

Q. You didn’t see any steps?

13

A. No.

14

Q. So you got close enough to the

15

Hollister store at Beaumont, Texas, to notice that

16

there were no steps at the front?

17

A. I didn’t see steps, no.

18

Q. So to the extent that you didn’t go

19

into the Beaumont, Texas, Hollister, it didn’t have

20 anything to do with the steps at the front of the

21

store?

22

A. No. We were in a hurry and just

23

didn’t take the time.

24

Q. You had other stores to visit, and you

25

don’t particularly like Hollister anyway; is that

Calderwood-Mackelprang, Inc. 303.477.3500



Anita Hansen

97

1

Q. Have you ever entered a building that

2

has a revolving door?

3

A. I know that my wheelchair wouldn’t go

4 through them, but I can’t recall -- I can’t recall-

5 going to a building that had one.

6

Q. You don’t recall ever entering a

7 building that has a revolving door through an

8

accessible door?

9

A. Right.

10

Q. With respect to your intention to

11 return to Hollister stores, is it your testimony

12

that you have no intention of returning to Hollister

13 stores unless the steps are removed?

14 MR. WILLIAMS: Object to form and

15

we’ve been over it.

16

Go ahead.

17

THE DEPONENT: That would depend. If

18 I had a need. If my grandsons wanted to go in

19 there, and if there were still steps there, I would

20

have to use the accessible door.

21

Q. (By Mr. Knueve) Do you have any

22 current intention to return to a Hollister store for

23 any reason?

24

MR. WILLIAMS: Object to form, but you

25 can answer it.




Anita Hansen

98

1

THE DEPONENT: Not today.

2

(Exhibit 9 was marked for

3

identification.)

4

Q. (By Mr. Knueve) Ms. Hansen, you have

5

Exhibit 9 there in front of you. My only question

6

is: There’s a name there on the first page, Artie

7

Lashbrook. Do you know Mr. Lashbrook?

8

A. No, I don’t.

9

Q. To your knowledge, have you ever

10 spoken with him?

II

A. No, I haven’t.

12

Q. To your knowledge, have you ever

13 corresponded with him?

14

A. No.

15

Q. When you went to the Park Meadows

16 Hollister, was there an employee standing on the

17 porch-like structure?

18

A. I don’t believe so.

19

Q. When you went to the Orchard Town

20

Center Hollister, do you recall, was there an

21 employee standing on the porch-like structure?

22

A. No.

23

Q. No, you don’t recall, or, no, there

24 was not?

25

A. No, I don’t believe there was.

C&derwood-Mackelprang, Inc. 303.477.3500


Case 1:09-cv-02757-WYD-KMT Document 155-1 Piled 12/23/11 USD0 Colorado Page 30 of 77

Anita Hansen

104

1

behalf?

2

A. Yes.

3

Q. And so you made no effort to

4 communicate with Hollister directly?

5

A. No.

6

Q. No, you made no effort?

7

A. Correct.

8

Q. Thank you. I think this is clear from

9 your testimony, but I want to make sure. ’I take it

10 that there isn’t any Hollister store that you wanted

11 to visit but were deterred from visiting because of

12 your experiences?

13

MR. WILLIAMS: Object to form.

14

THE DEPONENT: I guess I didn’t have

15

the desire as of late, but I think I stated earlier

16

that I’ve got this young lady that, when her

17

birthday comes around, I might want to buy a gift

18 card, but there’s no immediate need or desire to go.

19

Q. (By Mr. Knueve) But between your

20 visits in July of 2009 and now, there’s not been an

21 occasion when you’ve wanted to go to a Hollister

22

store and were deterred?

23


24

Go ahead.

25

THE DEPONENT: Other than it’s not a



Li


Anita Hansen

105

1 real quick in-and-out store, yeah. I mean, I could

2

have gone in, I suppose, but I can find similar

3 merchandise other places.

4

Q. (By Mr. Knueve) But there was never

5 an occasion when you thought, "Man, I really want to

6 go shop at Hollister today," but were deterred?

7


8

Go ahead.

9

THE DEPONENT: Not that I can think

10

of, no.

11

(Exhibit 12 was marked for

12

identification.)

13

Q. (By Mr. Knueve) Ms. Hansen, you have

14

Exhibit 12 in front of you. I’ll represent to you

15 that this was a document produced by your counsel,

16

stamped P93. And I’ll also - represent to you that

17 your counsel has represented that this is a

18 photograph of the entrance of a Hollister store.

19 Have you ever seen an entrance of a Hollister store

20

that looks like this one?

21

A. I like this one. Possibly the one in

22

Parkdale Mall in Beaumont.

23

Q. Were you aware that there are

24

Hollister stores in Colorado that have an entrance

25

that looks like this one?



1

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U 7

LI 8 9

11 Li 10

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Anita Hansen

112

CERTIFICATE

STATE OF COLORADO )ss.

CITY AND COUNTY OF DENVER

I, Jana Mackeiprang, Certified Realtime Reporter, Registered Professional Reporter, and Notary Public for the State of Colorado, do hereby certify that previous to the commencement of the examination, the said ANITA L. HANSEN was duly sworn by me to testify the truth in relation to the matters in controversy between the said parties.

I further certify that said deposition was taken in shorthand by me and was reduced to typewritten form by computer-aided transcription, that the foregoing is a true transcript of the questions asked, testimony given, and proceedings had.

I further certify that I am not an attorney nor counsel nor in any way connected with any attorney or counsel for any of the parties to said action or otherwise interested in its event.

IN WITNESS WHEREOF, I hereunto affix my hand and notarial seal this 18th day of November, 2011. My commission expires January 24, 2012.

14

15

16 L. Jana Mackeiprang

17

CRR, RPR, Notary Public Calderwood-Mackeiprang, Inc.

18

U

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Li 21 22

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24

25




Julie Farrar

I

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No.: 09-cv-02757-WYD-KMT I co COLORADO CROSS-DISABILITY COALITION, et al.,

Plaintiffs,

VS.


Defendants.

DEPOSITION OF JULIE FARRAR

PURSUANT TO NOTICE, the

above-entitled deposition was taken on behalf of

the Defendants at the offices of Holland & Hart,

LLP, 555 Seventeenth Street, Suite 3200, Denver,

Colorado, on November 9, 2011, at 1:03 p.m., before

Jana Mackelprang, Certified Realtime Reporter,

Registered Professional Reporter, and Notary

Public.

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I

1

at CCDC.

2

Q. Have you ever had any kind of role at

3

CCDC?

4

A. I did some contract work with them,

5 getting statements from people around K-Mart.

6

Q. When was that?

7

A. I think that was probably, I’m going

8

to say, sometime between 2000 and 2002, maybe. I’m

9

thinking of the ages of my children at the time.

10

That’s the only way that I can -- I’m old.

11

Q. Don’t say you’re old because you and I

12 are almost the same age.

13

A. I’m wise and forgetful.

14

Q. You said contract work. Was that paid

15 work?

16

A. Yes.

17

Q. What was your pay?

18

A. I have -- I do not recall.

19

Q. Were you paid by the hour? Were you

20 paid by the statement?

21

A. I’m trying to remember, but I think I

22 was paid by the interview, basically.

23

Q. In other words, for each interview of

24 a witness, you got some kind of sum?

25

A. I think so. I’m not positive about


I 1

that, but I think so.

2

Q. What was the purpose of the

3

interviews?

4

A. It was to take information from people

5 who had shopped at K-Mart and had had obstacles, I

6 guess, basically, in their shopping experience.

7

MR. WILLIAMS: I apologize. I might

8 need to confer with her for just a second.

9

MR. KNTJEVE: Sure.

10

(A recess was taken.)

11

MR. WILLIAMS: It was my neglect in

12 not realizing CCDC was co-counsel on the K-Mart case

13 with Fox & Robertson. Fox & Robertson retained some

14 folks to do some interviews in connection with that

15

litigation. I have to instruct her not to answer on

16

the substance. I’m sorry for not catching that

17

sooner.

18

MR. KNUEVE: That’s okay.

19

Can you read back the last question.

20

(Whereupon, the following record was

21 read back by the court reporter: "What was the

22 purpose of the interviews?")

23

MR. KNUEVE: I’ll withdraw that

24

question.

25

Q. (By Mr. Knueve) Did you report to


I 1 anybody at CCDC when you were doing that work?

2

A. I reported to someone named Michael

3

Breeskin. But I don’t know -- never mind.

4

Q. Have you held any other positions with

5 CCDC?

6

A. No.

7

Q. Have you performed any other contract

8 work for CCDC?

9

A. No, not that I recall.

10

Q. Have you conducted any investigations

11 on behalf of CCDC?

12

A. No -- oh, I need to say that I -- do I

13 amend my answer? I don’t know how to say it

14 properly, but I just realized that I did work for

15 CCDC doing accessibility surveys for the Pepsi

16

Center. So I take that back. So I have -- so, yes,

17

I actually have done other work for CCDC. It wasn’t

18

in a leadership capacity. It was just taking

19 accessibility surveys -- or customer satisfaction

20

surveys is what they were.

21

Q. Forgive me for my ignorance, but what

22

is the Pepsi Center?

23

A. The Pepsi Center is -- it’s one of the

24

sports arenas. It’s where the Avalanche and the

25 Mammoth, which is the lacrosse team, and the Nuggets


I 1 Nursing Home Lobbying Association. They lobby for

2

funding for nursing homes, which, in the state of

3

Colorado, it costs $90,000 a year of taxpayers’

4 money to keep somebody in a nursing home. It costs

5 about a third of that for someone to live

6 independently in the community with support, but

7 it’s all about the lobbying and who has the money.

8 So the focus changed as far as what we were trying

9

to change.

10

Does that answer your question at all?

11

Q. Yeah, it does. So what were you

12

getting arrested for?

13

A. So the charges were usually

14 trespassing or unlawful assembly or parade without a

15 permit -- it was pretty run of the mill.

16

Q. Were you ever charged with -- you were

17 never charged with any violent crime?

18

A. No.

19

Q. I think you’ve testified that you

20 started paying dues to CCDC about three years ago?

21

A. Yes.

22

Q. And you testified that you donate more

23 than the dues requirement?

24

A. Yes.

25

Q. How much have you donated in the past


I

1

2

A. Well, I’m not sure exactly how much,

3 but I ran for city council, and I had to dissolve my

campaign fund. And so I divided the money up, and I

5 gave half of it to CCDC, and I gave half of it to

6

the Center for Progressive Leadership. So it wasn’t

7 my money, but it was money that was given out of my

8 campaign contributions.

9

Q. What’s the Center for Progressive

10 Leadership?

11

A. It’s a training program for people who

12 are leaders, community activists, leaders in the

13 community, or who wish to become leaders in their

14 community. And it’s just a wide variety of issues

15 and all different kinds of people from all over --

16

it’s a nationwide program, but it was people from

17 all over Colorado that came together and went

18 through this training program.

19

Q. And why did you have to dissolve your

20 campaign fund?

21

A. Because I wasn’t going to run for

22 public office again and it’s the law.

23

Q. This was postelection?

24

A. Yes. I came in 14th out of 38

25 candidates, so I felt pretty good.


I

1

Q. Congratulations.

2

A. Thank you.

3

Q. What year was that?

4

A. This last year.

5

Q. 2010?

6

A. Yes.

7

Q. How much did you donate in 2009 to

8 CCDC?

9

A. I don’t know.

10

Q. More than $100?

11

A. I don’t know.

12

Q. How about in 2008?

13

A. 2008, it probably would have been part

14 of joining with SEIU. We joined at -- I don’t

15 know -- whatever that level was. I couldn’t explain

16

to you the tiers and all of that.

17

Q. Do you know how much you personally

18

donated in 2008?

19

A. I don’t.

20

Q. When is the first year that you

21 personally donated to CCDC?

22

A. It would be hard for me to tell

23 because it would have been, like, a fundraiser or

24 something like that. I’m not -- I do not recall.

25

Q. Were you -- would it be fair to say


I

1

Q. What church do you attend?

2

A. I attend a church called the Denver

3 Center for Spiritual Living, or it could be Center

4

for Spiritual Living Denver. I apologize.

5

Q. I asked you where you live, and you

6 said 2925 Dexter Street. How long have you lived

7 there?

8

A. Eighteen years.

9

Q. What’s the closest shopping mall to

10 your -- is it a home?

11

A. Yes.

12

Q. What’s the closest shopping mall to

13 your home?

14

A. Cherry Creek, and then they just

15 opened one in Northfield.

16

Q. Have you ever been to -- I take it

17 you’ve been to Cherry Creek Mall?

18

A. Uh-huh.

19

Q. Yes?

20

A. Yes.

21

Q. How many times have you been to the

22 Cherry Creek Mall?

23

A. Oh, a lot. Too many. I probably --

24 we probably go maybe once a month.

25

Q. Have you been to the Northfield Mall?


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A. Yes.


Northfield Mall?

A. Probably once a month.

Q. Have you ever been to the Park Meadows

Mall?

A. Yes.


Park Meadows Mall?

A. Less than six.

Q. Have you ever been to the Flatiron

Crossing Mall?

A. Yes.

Q. How many times have you been there?

A. Maybe four.

Q. Have you ever been to the Aurora Mall?

A. Yes.


A. I don’t go as much anymore. Like ever

in my life?

Q. Yes.

A. When I was a kid, it was the only

mall.

Q. How about since 2000?

A. Since 2000, I’d say probably 15 times,


I

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maybe.

Q. Have you ever been to the Citadel Mall

in Colorado Springs?

A. I don’t think so.

Q. Have you ever been to the Foothills

Mall in Fort Collins?

A. I don’t think so.

Q. Have you ever been to the Mesa Mall in

Grand Junction?

A. No.

Q. Have you ever been to the Orchard Town

Center Mall?

A. Yes.


A. Like four to six times.

Q. How far is the Cherry Creek Mall from

your house?

A. Not far enough. Maybe five miles.

Q. Why do you say, "Not far enough"?

A. Because I have kids. The good thing

about it is that it has an indoor playground. So

it’s a cheap date on a snowy day for kids.

Q. How about Northfield?

A. Northfield is maybe two miles from our

house. Not as cheap because it’s a pedestrian mall.


I

1

I personally like the thrift stores. I like -- I’m

2

trying to think -- I like Charlotte Russe. My kids

3

shop at Forever 21, Claire’s. I’m trying to think.

4 I’m trying to think of the stores at the Aurora

5 Mall, but they all start to look the same.

6

I can’t -- yeah, I think Macy’s --

7 Macy’s is probably the one that we frequent the

8

most.

9

Q. Do any of your children have a

10 mobility disability?

11

A. No. I do have -- no. I was going to

12 say, my middle child, the most capitalistic of us,

13 does have a chronic health condition that causes

14 pain, but it doesn’t really cause mobility -- it

15 sometimes limits her activities, but it doesn’t

16 cause an actual mobility impairment.

17

Q. What’s the condition?

18

A. It’s called fibromyalgia.

19

Q. I take it Hollister is not one of the

20 stores that you frequent?

21

A. Hollister is not one of the stores

22

that we frequent. It’s one of the stores that Lizzy

23 really likes. It’s a brand that Lizzy really likes.

24 And we have seen Hollister stores, but we have not

25 gone into a Hollister store.


I 1 like: Oh, yeah, we noticed that. We had noticed

2 that the Hollister store at Orchard, the Orchard

3 Town -- I don’t know the names of them very well,

4 but it was the one -- she had a physical therapy

5 appointment out there, and that’s why we were always

6 going to that mall, because her physical therapy

7 appointment was during rush hour. So it took 45

8 minutes to get to the appointment, and I wasn’t

9 going to drive back another 45 minutes. So we would

10 just hang out and walk around in the mall and do

11 things. And we had noticed the inaccessible

12 entrance.

13 Then when Krista was folding the

14 clothes and she saw the Hollister clothes, she

15 mentioned -- not the litigation, but that other

16 people had noticed it as well.

17

Q. You said that you noticed the store at

18 Orchard Town Center when you were taking your

19 daughter to -- I’m sorry, where were you taking her

20

to?

21

A. She was going to physical therapy.

22 Children’s Hospital has -- it’s part of her

23 fibromyalgia; she goes to physical therapy. And

24 they had a satellite clinic, the only place they had

25 openings forever and ever, but they had a satellite


I

1 clinic. I don’t know which direction I’m pointing

2

as soon as I’m in a building, but it was up north,

3 Westminster or Northglenn, whatever that is. It was

4 right next to that mall. And so we would drive 45

5 minutes for a 45-minute appointment, and then we

6 could get back on the freeway and drive another 45

7 minutes, or we could fart around at the mall. And

8

if you’re a 12-year-old, you’re like: Hey, let’s do

9

that.

10

Q. Or if you’re a 41-year-old, you might

11 want to do that.

12

A. So we would go to the mall and walk

13 around. And that is when we noticed the Hollister

14 store. And she was all excited about the Hollister

15 store. But we also, to be quite honest, laughed a

16

little bit at the entrance to the Hollister store

17 because it was kind of ridiculous. And we didn’t go

18

in.

19

Q. This was Lizzy?

20

A. Uh-huh.

21

Q. Yes?

22

A. Yes.

23

Q. And when was this?

24

A. It would have been over the summer.

25

And I - -


1

Q. The summer of 2011?

2

A. Yes.

3

Q. And was that the first time that you

4 had noticed the entrance at a Hollister store?

5

A. Yeah, that’s the first time we noticed

6

a Hollister store, period.

7

Q. And you said it was ridiculous. You

8 believed it was ridiculous. Why did you believe it

9 was ridiculous?

10

A. Well, we just looked at it and just --

11 they’re my kids -- that there were steps to get in.

12 We just thought that that was kind of silly. And we

13 did go by, but I didn’t -- I just thought it was

14 ridiculous that I couldn’t get into a new store.

15

Q. Now did you make any attempt to get

16

in?

17

A. No.

18

Q. And you didn’t look to see if there

19 was an accessible entrance?

20

A. No, I didn’t look very hard to see if

21 there was an accessible entrance, partially because

22 steps -- to me, that was the main entrance and an

23

entrance that -- to me, that’s a message. That

24 makes it more difficult for me to get in. I mean,

25 we actually kind of laughed about stairs to get in.


I

1

Q. Now, take a look at 17, paragraph 17.

2

"I intend to and will shop at Defendants’ other

3 Hollister stores in the Denver metropolitan area and

4 elsewhere when I travel if Defendants remedy the

5 accessibility barriers similar to those I

6

encountered. "

7

Are you aware that there are Hollister

8 stores in the Denver metropolitan area that do not

9 have a porch-like structure?

10

A. I am now, but I wasn’t aware of that.

11

Q. Are you aware through counsel? Are

12 you aware through any means other than counsel?

13

A. No.

14

Q. Have you ever seen a Hollister store

15 without an elevated entrance?

16

A. Not that I noticed. I think I would

17 have to look at the list of locations again to tell

18 you whether I’d been in a mall that had one that was

19

inaccessible.

20

Q. We talked about Flatiron Crossing.

21 You’ve been there four times, you told me. There’s

22 a Hollister store there without an elevated

23 entrance. Have you ever seen that one?

24

A. I did not notice it.

25

Q. There’s the Hollister at Aurora Mall,



Julie Farrar

124

1

CERTIFICATE

2 STATE OF COLORADO ss.

3 CITY AND COUNTY OF DENVER

4 I, Jana Mackeiprang, Certified Realtime

Reporter, Registered Professional Reporter, and 5 Notary Public for the State of Colorado, do hereby

certify that previous to the commencement of the 6 examination, the said JULIE FARRAR was duly sworn by

me to testify the truth in relation to the matters 7

in controversy between the said parties. I further certify that said deposition

8 was taken in shorthand by me and was reduced to typewritten form by computer-aided transcription,

9 that the foregoing is a true transcript of the questions asked, testimony given, and proceedings

10

had. I further certify that I am not an

11 attorney nor counsel nor in any way connected with any attorney or counsel for any of the parties to

12 said action or otherwise interested in its event.

IN WITNESS WHEREOF, I hereunto affix my 13 hand and notarial seal this 18th day of November,

2011. My commission expires January 24, 2012.

14

15

16 Jana Mackelprang

17

CRR, RPR, Notary Public Calderwood-Mackeiprang, Inc.

18

19

20

21

22

23

24

25

Calderwood-Mackelprarig, Inc. 303.477.3500


Defendants-Appellants. APPELLANTS’ MOTION TO STAY ......2013/11/25 · Appellants Abercrombie &...

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