Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co.

Amеrica; Legal union dis- company or the United States Center isn’t one Rather, us is question before putes. People for With Disabilities and Older threat also had the company’s whether People; American Association of Peo rendering an additional knock-on effect ple Disabilities; With Center for unlawful. Pre- otherwise lawful lockout Rights Disabilities; of Parents With cisely nothing Passavant Grondorf Disability Rights Advocates; Dis expressly or speaks question, to that either ability Rights Education and Defense The union’s by necessary implication. Fund; Disability Rights Legal Center; insufficiently repu- that an cases establish Legal Society Employment Aid Law — of the statute still counts diated violation Center; Disability Rights National violation; they do not establish that as a Network; National Federation of the insufficiently repudiated violation Blind, Amici Curiae. independent violation causes a second of the statute. No. 13-1377. day,

At the end of the the union musters of Appeals, United States Court justification forcing the Board to act no Tenth Circuit. saying it has chosen not to act. where suggest much don’t mean to we we Aug. every jot and tittle in the adminis- endorse precedents we’ve discussed. To re- trative ease, hold

solve this we need and do Board’s refusal to order additional arbitrary measures wasn’t

remedial

light precedents of the administrative petition for re-

union has identified.

view is denied.

COLORADO CO CROSS-DISABILITY

ALITION, non-profit a Colorado cor Farrar, Hansen;

poration; Anita Julie

on behalf of themselves and all others

similarly situated, Plaintiffs-Appel

lees, Hernandez; Sirowitz;

Benjamin Robert Stapen; Stephens, Robin

Joshua

Plaintiffs, CO.; Aber

ABERCROMBIE & FITCH Stores, Inc.;

crombie & Fitch J.M. LLC, Co.,

Hollister Hollister De d/b/a

fendants-Appellants. (and

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

Amy Timothy F. Robertson P. Fox Rights of Civil Education and Enforce- Center, Denver, CO; Bill ment Lann Lee Lewis, Lee, Feinberg, Renaker & Jack- son, PC, Oakland, CA; Kevin W. Williams Montoya of and Andrew C. Colorado Cross Coalition, Denver, CO; Disability Julia Campins Hillary Benham-Baker of Benham-Baker, LLP, Fran- Campins, San cisco, CA, brief), on the for Plaintiffs- Appellees. (Jocelyn Samberg-Champion,

Sasha Samuels, Attorney Acting Assistant Gener- al, Gross, Department and Mark L. Division, Justice, Rights Appellate Civil brief), D.C., Section, Washington, on the of Amer- for Amicus Curiae United States ica. Uzeta, Monrovia, CA, for Amici

Michelle Dis- Legal People Center for With Curiae People, abilities and Older American Asso- Disabilities, People ciatiоn of Center Disabilities, Rights of Parents with Advocates, Disability Rights Disability Background Fund, and Defense Dis- Rights Education Plaintiff-Appellee Colorado Cross-Dis- Center, Legal Legal ability Rights Aid (CCDC) ability disability Coalition is a ad- Center, Law Na- Society Employment — vocacy organization Aplee. in Colorado. Rights Network and Na- Disability tional Br. 7. It on advocates behalf of its mem- of the Blind. tional Federation promote “independence, bers to self-reli- ance, people and full inclusion for TYMKOVICH, KELLY, Before community.” disabilities in the entire II McHUGH, Judges. Circuit

Aplt.App. 486. CCDC notified Abercrombie that Hollister stores at two KELLY, Judge. Circuit malls Colorado—Orchard Town Center & Defendants-Appellants Abercrombie and Park Meadows Mall—violated the Co., Stores, Fitch Abercrombie & Fitch ADA. Aplt. attempts Br. 4-5. Initial LLC, Inc., and J.M. Hollister Hollis- d/b/a unsuccessful, settle the matter were and Abercrombie)1 (collectively, ter appeal Co. litigation this followed. Id. at 4. by from several orders the district court holding clothing that Hollister stores vio- complaint An ADA was filed CCDC late the Americans with Disabilities Act members, and four of its one of whom was (ADA). First, challenges Abercrombie the Anita I ApltApp. Hansen. 24. Ms. Han- holding district court’s that the Plaintiffs sen, who uses a mobility, wheelchair for standing. have Article III See Colo. accessibility encountered obstacles at the Cross-Disability Coal v. Abercrombie & Hollister at Orchard Town at Center. Id. Co., 1272, F.Supp.2d Fitch 111. steps Because led to the store’s cen- (D.Colo.2013). Second, challenges it entrance, attempted ter she to enter the court’s certification of a nationwide class of door, through adjacent store side which persons shop disabled who at Hollister was locked. Id. at 112. A Hollister em- stores. See Cross-Disability Colo. Coal. v. ployee in, inside, let her but once Ms. Co., Abercrombie & Fitch No. 09-cv- Hansen had to ask employees to move (D.Colo. 2012 WL at *7 and get tables furniture to about the store. 2012). Third, challenges the court’s experience Id. This left her “frustrated holding that many entrances at Hollister and humiliated.” Id. at 113. She had a stores violate Title III of the ADA. See similar experience at the Hollister at Park Co., F.Supp.2d Abercrombie & Fitch at Meadows Mаll. Id. at 114-15. The com- Finally, 1283. it challenges the court’s barriers, plaint alleged that including these entry permanent injunction of a remedying stepped “porch-like structure” that those violations. See Colo. Cross-Disabili- entrance, served as the stores’ center vio- ty Co., Coal. v. Abercrombie & Fitch No. III lated Title of the ADA. Id. at 29-37. 09-cv-02757, 2013 WL at *1 (D.Colo.2013). The Plaintiffs added allegations class jurisdiction Our arises un- complaint, challenging der 28 affirm in these barriers U.S.C. and we part, part, reverse in at “Hollister throughout remand for fur- Co. stores proceedings. ther United States.” Id. at 71. Stores,

1. Abercrombie & Fitch public Inc. J.M. "Abercrombie” and the accommoda- wholly Hollister LLC are owned subsidiaries tion at issue as "Hollister stores” or “Hollis- simplicity, Abercrombie & Fitch Co. For ter.” opinion refers to the defendant entities as n roof, upon gives took it itself to cor- which it the look and feel of a of these barriers. It modified 6; rect some Southern surf California shack. Id. at counters, by lowering sales Hollister stores Aplee. Br. 4. Two steps lead from the an un- rearranging merchandise ensure porch mall floor onto the clothed —where impeded path of travel for customers chairs, mannequins, upholstered and mar- wheelchairs, adding additional buttons to keting images displayed another —and doors, adjacent ensuring open the side steps two lead off the into either the the side doors were not blocked or (male) (female) “Bettys” “Dudes” side However, Aplt.App. locked. Ill one 5-7; Aplt. Aplee. of the store. Br. Br. 4- unchanged: stepped, remained thing 5. On either side of are two porch-like structure served as the center leading doors into the store are level many entrance at Hollister stores. Aplt. with the mall floor. Br. 5. These doors are on the same storefront as the types There are two of Hollister stores porch. person Whether enters the store in the United States: those with center doors, through one of these or ascends and entrances that are level with the surround- floor, porch, descends the that person arrives at ing mall and those like the Park point the same in either the Dudes or stepped Meadows Hollister2 that feature a Bettys side of the store. Aplt. as their center entrance. Br. 6-7. The porches following picture, depicting 5-6. These share a common de- the raised porch in the sign: porch protrudes the into the mall center and the level doors to sides, may helpful and is covered a terracotta be a reference. corridor motion, holding After the Plaintiffs filed a amend- court denied the third district im- complaint, alleged ed Abercrombie moved to dis- that the Plaintiffs a “real and arguing miss that the Ar- threat” of future harm if the al- Plaintiffs lacked mediate III I standing. Aplt.App. leged ticle 184. The ADA violations were not remedied. stores, including Aplt.App. ap- 2. When this Some Hollister the one at States. See II 688. Center, briefed, Orchard Town have closed since the peal that number was 231. See was Aplt.App. start of this case. Ill 782-83. For Aplt. Br. 3. case is moot as to these closed proceed- much of the time that this case was stores; therefore, we will focus on the Park court, ing were porches before district Hollister, open. Meadows which remains present at United 249 Hollister stores in fact. Ill injury proof of a concrete v. Abercrom Coal. Cross-Disability Colo. 09-cv-02757, argued It also Co., Aplt.App. 2011 WL 946-47. No. & Fitch bie (D.Colo.2011). partial grant The Plain court’s earlier sum- district at *3 summary be vacated because partial mary judgment for should a motion filed tiffs matter Park changes as a to the asking judgment made judgment, the Park porch at the court’s addressing Hollister on whether Meadows lawof III of the Title court violated at 711. The district Hollister concerns. Id. Meadows Department 270. The full I motion in Aplt.App. granted the Plaintiffs’ ADA. (DOJ) of Interest filed a Statement Abercrombie & Abercrombie’s. Justice denied Aplt.App. II Co., the Plaintiffs. supporting at 1283-84. The F.Supp.2d Fitch granted the Plain court The district produced 346. Plaintiffs evi- court held “steps motion, holding that standing tiffs’ and that Aber- of their dence unacceptable legally entrance a center to the Park changes crombie’s Meadows branding and violate against piece [Hollister’s] did not moot the claim Hollister ADA.” Cоlo. Cross-Disabil III of the Title at 1277. The porch entrance. Co., & Fitch ity v. Abercrombie Coal. structures court then held that (D.Colo.2011). 1077, 1083 F.Supp.2d. Title all Hollister stores violated III at at the ADA. Id. Thereafter, the named Plaintiffs four of Farrar, another withdrew, and Julie Finally, permanent the court entered wheelchair, uses member who CCDC injunction; it ordered Abercrombie on the final join Ms. Hansen added to was porches all Hollister stores with into bring Aplt.App. II 474. On complaint. ADA with Title III of the with- compliance motion, certi- district court Plaintiffs’ at years, a rate of least three defined as fied a class per year. Aplt-App. Ill 1098-99. stores who use people all with disabilities by modifying do so Abercrombie could who, during the mobility wheelchairs for (1) ways: making in one of three porches filing of the Com- years prior two entrance “level with sur- case, denied the full in this were plaint (2) placing ramp a rounding space”; floor goods, of the ser- equal enjoyment (3) closing off porch; on the facilities, vices, advantages, ‍‌‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌‌​​‌​‌‌‌​​​‌‌​‌​‌​‌‌‌​‌‌​‌‌‌‍privileges, “any access.” Id. at 1098. public from any of Hollister Co. or accommodations appealed. Abercrombie on the basis in the States Store United presence disability because Discussion an Entrance. Elevated Standing I. Co., 2012 Fitch WL &

1378531, *1. at standing de This court reviews Wichita, 380 F.3d Tandy City novo. v. cross motions for sum- parties filed (10th Cir.2004). 1277, At its “irredu sought Plaintiffs 1283 judgment. mary minimum,” standing all Hollis- cible constitutional summary judgment whether on Lujan v. 249 stores has three elements. porches ter stores Defenders of —some 560, 2130, 555, 112 Wildlife, 504 S.Ct. III of the ADA. U.S. Title nationwide—violated (1992). First, plaintiff a entry 119 L.Ed.2d 351 They sought also ApltApp. 698. II “injury an in fact” that must suffer injunction remedying this permanent aof Second, injury actual or imminent. Id. Id. Abercrombie nationwide violation. fairly challenged must be traceable summary judgment standing, on sought Third, Id. must action of the defendant. failed to offer arguing that the Plaintiffs injury likely Tandy, (citing will be redressed 380 F.3d at 1283 City be Los 95, 101-02, requested. Angeles Lyons, the relief Id. at 461 U.S. (1983)). S.Ct. response summary In to a L.Ed.2d 675 S.Ct. When motion, prospective injunction— relief—such judgment plaintiff support a must as forth, sought, plaintiff “the must standing by setting suffering a each element “ evidence, continuing injury or be other under a reаl and through ‘spe- affidavit or facts,’ being injured immediate threat of in the purposes cific which for of the sum- future.” In Tandy, Id. we held that sever- mary judgment motion will be taken to be (citation omitted) al ADA testers had standing to seek in- (quoting true.” Id. Fed. junctive against relief 56(e)). City of Wichita. R.Civ.P. at plaintiffs Id. 1287-89. These “un- were Abercrombie contends Ms. der a real and experi- immediate threat of Hansen and Ms. Farrar have not suffered encing a lift city’s malfunction” on the genuine injury they in fact because they buses because in averred affidavits an Aplt. ADA testers. Br. 19-20. This court intent “to test Wichita Transit’s fixed- held, however, has “testers have route per year.” services several times standing to sue under Title II of the at “testimony 1287.3 We held that of an Tandy, ADA.” 380 F.3d at 1287. be We intent to per year’ use buses ‘several times true for III of lieve the same is Title concrete, suggests present, plan to use” Supermar ADA. See Houston v. Marod year, the buses “several each times includ- (11th kets, Inc., 733 F.3d 1332-34 year in ing plaintiff] which made [the Cir.2013) (relying Tandy holding on 1284; statement.” Id. see also id. standing that testers have under Title III at 1285 n. 12. This contrasted with the ADA). II, provides Like Title Title III plaintiffs Lujan Wildlife, v. Defenders of “any person” subjected remedies for Supreme “merely whom the Court held illegal disability Compare discrimination. expressed someday places a desire to visit (Title II), § 42 U.S.C. with id. halfway (citing around world.” Id. 12188(a)(1) (Title III); Tandy, see also Wildlife, 504 U.S. at Defenders of Thus, anyone 380 F.3d at 1286-87. who 2130). S.Ct. legal has suffered an invasion of the inter mind, principles these we With protected by may est Title III have stand hold that Plaintiff Farrar Julie has ing, regardless of his or her motivation in standing prospective to seek relief. However, encountering that invasion. affidavits, Ms. Farrar two averred standing” fact that “tester exists under ... she to return to” the Park “intend[s] displace general Title III does not Hollister, 463, II ApltApp. Meadows Houston, requirements standing. See likely'be Park going she “will any plaintiff, at Like a 733 F.3d 1334. at per Meadows Mall least six times that she in tester must demonstrate has year,” per id. at 644. This “six times in cognizable injury deed suffered a fact year” testimony has the same effect as sought. that will be redressed the relief per year” testimony the “several times in concrete, “injury requirement Tandy. suggests present in fact” It “depending plaintiff plan differs on whether the to return to the Park Meadows Hol- prospective retrospective seeks relief.” times—at six—each lister several least plaintiff standing Tandy, 3. We held that one lacked 380 F.3d at 1288. because he failed to file such an affidavit.

1212 relief as sought prospective Farrar Ms. Ms. year which including the year, nationwide class. of a representative See Tan that statement. Farrar made III has Article we hold that she Because at 1284. dy, 380 F.3d porch at standing challenge to challenges plausibility Abercrombie Hollister, we need not de Meadows Park to return to the intent of Ms. Farrar’s Plaintiffs, the other named cide whether Hollister, pointing out Park Meadows CCDC, i.e., have stand Anita Hansen store a Hollister never entered she has representatives. class ing to serve as not the Park Meadows Mall is 433, 446-47, Flores, Horne v. U.S. 21-22; Br. Aplt. her home. closest to (2009); 2579, Ar 174 L.Ed.2d 406 S.Ct. purposes 5. For the Aplt. Reply Br. Dev. Heights v. Metro. Hous. lington however, we must summary judgment, 9, n. 97 S.Ct. 264 & Corp., U.S. facts set forth Ms. specific take the (1977) (“[W]e have at L.Ed.2d 450 affidavit as true. See Farrar’s Defenders has dem plaintiff who least one individual 2130. at 112 S.Ct. Wildlife, 504 U.S. standing.... Because onstrated to Moreover, that she return her claim will need not con plaintiff, of this we presence at least six Meadows Hollister the Park ... the other individual sider whether year implausible not rendered per times is maintain the standing have to plaintiffs her the store and by the distance between suit.”). However, insists that Farrar testified that she will home. Ms. at the standing analysis does not end our Mall more often go to the Park Meadows argues Mall. It Ms. Park Meadows nearby. II her has moved now that friend bring a claim for standing lacks to Farrar Houston, 644, 661; 733 F.3d Aplt.App. see injunctive because she nationwide relief (ADA inju- plaintiff suffered 1336-37 every Hollister not intend to visit does to frequent trips in fact his his ry because stores nation with a store him the defen- lawyer’s offices took near —over have no doubt Aplt. wide. Br. 23-24. We store, thirty was more than dant’s which seeking Farrar a nation that if Ms. were home). Farrar’s testi- miles from his Ms. injunction right, in her own then she wide a real mony that she suffers demonstrates challenge accessibil standing lack to would encountering the threat of and imminent at stores she never intends ity barriers Park accessibility barrier at the alleged Int’l, Inc., See Scherr v. Marriott visit.4 future; injury in the Meadows Mall Cir.2013) (al (7th 703 F.3d at Aber- directly traceable to the standing to chal though plaintiff ADA had store, likely and it that a crombie’s single hotel she warranted, lenge design injunction, if would remedial visit, standing lacked Therefore, plaintiff intended to Ms. Farrar redress this harm. design at 56 other challenge that same prospective to seek relief. standing has case, typi- claims are common with and Plaintiffs’] held that the In this the district court class, standing they Plaintiffs have will be "individual named of those of a nationwide cal injunc- requesting bring a claim nationwide represent class which will entitled to Cross-Disability Coal. v. tive relief.” Colo. injunc- standing to seek a nationwide have 09-cv-02757, Fitch, 2011 Abercrombie & No. (The tion.”); Aplee. Br. 1 Plaintiffs "do not 1930643, (D.Colo.2011). This hold- at *4 WL plaintiffs have argue that the two individual however, given ing superfluous, that seems injunction.”). standing to obtain a nationwide request a na- Plaintiffs did not the individual injunctive question whether nationwide inju- injunction remedy to their own tionwide appropriately may an- relief issue was more remedy injuries of a ries but rather to seeking by asking a class whether swered they sought represent. class nationwide should be certified. relief event, (“In any Aplt.App. [the if See I 203

1213 visit). 23(a), Although In addition to Rule plans pro no class hotels she had standing adequacy concepts satisfy ponent through must also evidentia- appear action to maintain a class status ry proof provisions one of the least related, they independent are criteria 23(b). Behrend, Corp. Rule Comcast v. Has — separately. evaluated must be —, 1426, 1432, U.S. 133 S.Ct. 185 (3d 169, Jeffes, F.2d 175-76 sine v. 846 (2013). case, L.Ed.2d 515 In this the class Cir.1988). an in question whether 23(b)(2), was certified under Rule which junction may extend to Hollister properly requires the court to find that party “the by asking stores nationwide is answered opposing the class has acted or refused to repre may Ms. Farrar serve as whether grounds apply act on generally to the a class that seeks such relief. sentative of class, injunctive so that final relief or cor necessary ques All that to answer this responding declaratory appropri relief is Rule DG application tion is an 23. See respecting ate the class as a whole.” Fed. Devaughn, 594 F.3d ex rel. Stricklin 23(b)(2). R.Civ.P. Cir.2010). (10th 1188, turn to 1194 We that task next. We review the standard the district in making court used its Rule 23 determi II. Class Certification novo, nation de and we the merits review exception action is an “The class of that determination for an abuse of dis litigation rule that is conducted usual cretion. B. Roderick Revocable Wallace par and on behalf of the individual named Inc., Living Energy, Trust v. XTO Stores, only.” Inc. v. ties Wal-Mart (10th Cir.2013). 1213, F.3d The dis — Dukes, U.S.—, 131 S.Ct. enjoys trict court “considerable discretion” (2011) (internal quotation L.Ed.2d 374 area, in this and “we defer to the district omitted). justify departure marks To if ruling applies court’s certification rule, representative “a class from proper Rule standard and its decision part possess must be of the class and rationally falls within the bounds of avail injury same interest and suffer the same the facts and in given able choices law (quoting as the class members.” Id. E. (in Devaughn, volved.” 594 F.3d at 1194 Freight Sys., Tex. Motor Inc. v. Rodri omitted). quotation ternal marks 395, 403, guez, 431 U.S. S.Ct. (1977)) (internal quotation L.Ed.2d 453 omitted). 23(a)

marks It is “Rule [that] Standing A. Class plaintiffs ap ensures that the named are apply Before we Rule we must ad- propriate representatives the class repeated contention dress Abercrombie’s they litigate.” wish to whose claims class, one, that no not even the has stand- 23(a)’s requirements are famil quite Rule ing Specifically, in this case. (1) join- iar: the class is so numerous that argues standing the class lacks be- (nu- impracticable all members is der of “never established that cause the Plaintiffs (2) merosity); question there is a of law or actual, non-hypothetical class there are (commonality); fact common to the class patronize each of members who intend (3) represen the claims or defenses of the Br. That Aplt. the Hollister stores.” parties typical tative of the claims or is, proof Plaintiffs must offer of “actual (4) (typicality); defenses of the class certified class who have members оf the parties fairly and representative will standing” as to the 231 Hollister stores adequately protect the interests of the 23(a). porch. Id. at 30. (adequacy). class Fed.R.Civ.P.

1214 others.”). Supreme Three Justices argument before. this heard have

We principle this from favorably quoted the Court Devaughn, v. ex rel. Stricklin DG 23(a)’s treatise: leading class com- action that “Rule argued defendants de- requirements monality typicality need not make plaintiffs] “[Unnamed prove all standing Plaintiffs showing [in that Named of any individual manded actually [injured] or are relief].... were to obtain Whether members order threat of harm as an imminent meets indi- exposed plaintiff to who not the named actions. 594 may the defendants’ assert standing requirements result of’ vidual rejected argument, this is at 1197. We class members rights F.3d of absent require- “conflate[d] that nor an noting standing issue Article neither a injunctive standing, prospective de- controversy issue but ments III case or “First,” relief, meeting prerequi- and class certification.” rather on pends held, plaintiffs a class actions.” “only governing named class we sites of Rule 23 injunctive relief seeking prospective action 395-96, 343, Casey, v. 518 U.S. Lewis establishing standing by demonstrate must (1996) (Souter, 2174, 135 L.Ed.2d 606 S.Ct. continuing injury or suffering a they are (el- (alterations J., original) concurring) being threat of under an imminent added) & A. (quoting Newberg 1 H. lipses “Second, Rule future.” Id. injured in the 2.07, Conte, Actions Newberg on Class neither re- requirements 23’s certification ed.1992)). (3d major- to 2-41 pp. 2—40 suffer harm or members to quire all class out its agree, pointing ity seemed harm nor Named immediate threat of upon application “not holding did rest have suf- prove members class Plaintiffs at n. rules.” See id. standing at 1198. harm.” Id. fered such 2174.5 S.Ct. Thus, class question whether no support

Other authorities injunctive may relief seek nationwide “standing” require does not tion that class demanding proof of by not answered from members. proof class individualized by each class member but standing from AG, 443 Deutsche Bank Denney See v. 23. Cir.2006) application Rule (2d (noting that F.3d require “not standing Article III does B. Numerosity submit evidence member of a class each seeking to upon plaintiffs ex “The burden standing”); Prado-Steiman personal that the class Bush, represent a class establish 1279-80 221 F.3d rel. Prado v. Cir.2000) (Court joinder make (11th imprac- is so numerous as to must first deter City Hous. ticable.” Peterson Okla. “at one named class whether least mine (10th Cir.1976). Auth., 1270, 1273 standing,” III 545 F.2d Article has representative numerosity requires ex- requirement “The plain the named “question whether then facts of each case specific amination of the capacity, as de representative have tiffs limitations.” 23(a), imposes absolute rights to assert the no fined Rule entry Aplt. Br. 3. in- accessible An position could be framed as doors.” 5. Abercrombie's injunctive relief argument junction at those and those Hollis- nationwide aimed proof inappropriate there was no because perfectly was with the ter stores fits claim necessitating injuries such re- nationwide rights un- class members’ those stores violate Lewis, 348-49, 116 S.Ct. lief. U.S. Lewis, 518 U.S. at der ADA. Contra however, case, we are faced In this (absent showing systemwide 116 S.Ct. design Hollister a nationwide violation, —"231 injunction sys- constitutional entry door with that have one elevated stores scope inappropriate). temwide was level, adjacent, fully steps in addition to two Nw., Equal Inc. v. I Aplt.App. Gen. Tel. Co. located. It 111-28. is undeni- Comm’n, 318, able, Opportunity subject notice, 446 U.S. Emp’t judicial and to that (1980). 1698, 330, 100 S.Ct. 64 L.Ed.2d 319 there are millions of Americans with dis- Plaintiffs must offer “some evidence abilities. See Bd. Trs. Univ. Ala. established, Garrett, consti- 356, ascertainable numbers 370, 955, 531 U.S. 121 S.Ct. class,” tuting (2001) but there is “no set for- (citing 148 L.Ed.2d 866 the congres- mula to determine if the class is so numer- 43,000,000 finding sional that “some Amer- ous that it should be so certified.” Rex v. icans have one or physical more or mental Okla., 432, Owens ex rel. 585 F.2d 436 disabilities”). It was therefore reasonable (10th Cir.1978). to infer that a substantial number of dis- people abled live in the 40 states where’ argues the Plaintiffs located; Hollister stores are these numerosity requirement failed to meet people, like CCDC many members and “they presented because no evidence re Americans, malls, shop at including the garding proposed the size of their class.” Hollisters; porched 250 malls with said, however, Br. Aplt. 50. This court has joining all of these people one suit numеrosity requirement is not “a impracticable. would be The district court question of numbers.” Horn v. Associated did not finding. abuse its discretion in so Grocers, Inc., 270, 275 Wholesale 555 F.2d (10th Cir.1977). Rather, there are a sever suggests The dissent that we have weak- impractica al “factors that enter into the evidentiary ened the burden a propo- class bility “in- may issue.” Id. Such factors nent numerosity faces on the element. To action, the nature of the the size of clud[e] sure, only this class was defined to claims, the individual and the location include past those who have suffered a of the class or property members Co., injury. See Abercrombie & Fitch subject dispute.” that is the matter of the only 2012 WL at *1. But Wright, 7A Charles Alan Arthur R. Miller sought by prospective relief this class was Kane, Marry Kay & Federal Practice and agree in nature. with the dissent that We ed.2005) (3d Procedure at 206-07 whether the class was defined to in- “[Bjeeause (footnote omitted). it is such a suffering injury clude a past those does fact-specific inquiry, grant we lati wide it, not bar certification. As we see in making tude to the district court timing injuries of the class’s ‍‌‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌‌​​‌​‌‌‌​​​‌‌​‌​‌​‌‌‌​‌‌​‌‌‌‍has little ef- determination,” and we defer its deter on of impracticability: fect the issue iden- if appropriate mination the court “made an tifying, locating, joining individuals Adams, judgment call.” Trevizo v. accessibility who encounter discrimination (10th Cir.2006). 1155, 1162 F.3d shopping at malls in 40 states would be case, impracticable, regardless

In this the district court of whether the pointed injury past, ongoing, had before it several facts that occurred in the the existence of a class so numerous that will occur in the future. Pederson v. Univ., joinder impracticable. would be At the La. State 213 F.3d 868 n. (5th Cir.2000) (“ ‘[Jjoinder decision, in- time of the court’s certification of unknown ” undisputed porches present certainly impracticable,’ was were dividuals unknown, nearly 250 Hollister stores in over 40 “the fact that the class includes 451-58, II Aplt.App. weighs states. 688. More unnamed future members also certification.”) over, (first quoting submitted declarations from favor of Jack CCDC Co., F.2d they Supply five of its members who averred that v. Am. Linen (5th Cir.1974)). shop Overtiming at malls where Hollister stores are the dis- reрresent a ability and the standing determina- class certification trict court’s Rule Abercrombie substituting our discretion class under 23. What would be tions presents something whether Ms. Farrar challenges is that of the district court — fact common to empowered do. of law or “questions we are not class “typical of’ the and a claim class” Ade- Commonality, Typicality, and C. many one of the has visited when she quacy relief. the class seeks against stores which 23(a). the Plaintiffs argues that Abercrombie See Fed.R.Civ.P. 23(a)’s remaining re- failed to meet Rule require- commonality typicality and and typicality, quirements commonality, — 23(a) require that of Rule do ments Br. 51-52. Because Aplt. adequacy. a fact member of the class share every merge,” “tend to Wal- requirements these named to that of the situation identical

Mart, at 2551 n. and because 131 S.Ct. 1195; F.3d at see Devaughn, 594 plaintiff. sepa- them does not address Abercrombie Reeves, 169 F.3d Realmonte v. also rately, together. address them we Cir.1999). (10th “[D]iffering fact sit- First, that argues Abercrombie do not defeat uations of class members com cannot assert claims plaintiffs tester 23(a)(3) long as Rule so typicality under a of bona fide typical to or class mon and representative claims of the class argu Br. This Aplt. 51-52. patrons. legal on the same class members are based mentioned, plain As a ment lacks merit. Bowen, theory.” Adamson v. or remedial is irrelevant deter tiffs status as tester (10th Cir.1988). F.2d injury mining whether she has suffered “common ‘must be class’s contention Title III of the ADA. To in fact under of class- capable such a nature it action, represen a maintain a class “class that deter- resolution —which means wide pos and part must be of the class tative falsity resolve mination of its truth or will suffer the same sess the same interest and validity of that is central to the an issue Wal-Mart, injury as the class members.” ” claims in one stroke.’ each one of the (internal quotation marks 131 S.Ct. (quoting at 1218 Energy, 725 F.3d XTO omitted). here is The interest asserted 2551). Wal-Mart, 131 S.Ct. at from dis right to be free the same—the public ability place in a discrimination authority, it is untenable to this Given alleged injury— accommodation—as is represent that Ms. Farrar cannot suggest right by porches at Hollister denial of factually identi- a class unless she shares stores. claim with each class member —that cal every Hollister store she visit

Elsewhere, again Abercrombie raises claim that, claims violates the ADA. Her class standing argues specter Park Meadows Hollister against Ms. Farrar does not intend to visit because to” the claims of the class be- she “common every porch, Hollister store with a a common of law— question in- cause raises standing lacks to obtain a nationwide en- porched Hollister stores’ represen- whether junction, and her status as class claim is violate the ADA.6 Her standing. lack trances tative does not cure her though has of’ the class’s even she “typical conflates Aplt. argument Br. 25. This court, appeal, does not 692. On Abercrombie ar- 6. Before the district issue, we are satisfied gued inappropri- raise that class certification was sufficiently pose varying porches are similar as utilize ate because Hollister stores question of law. layout. Aplt.App. common designs their II remaining not visited the 230 stores. These accommodations must be “accessible.” Id. 12183(a)(1), (2). is, § legal That claims are based on same discrimination 12182(a) § under includes “a theory Title III of the failure to de- remedial —that sign and construct ... injunctive facilities that are against ADA mandates relief readily accessible to and usable individ- porches. 12183(a)(1). uals disabilities.” Id. These capable claims classwide statutory There are exemptions, e.g. id. regard, telling resolution. In this it is 12182(b)(l)(A)(iii), §§ 12183(a)(1),but none challenge Abercrombie does not the dis- apply of these here. certify trict court’s decision to the class Congress Attorney authorized the Gen- 28(b)(2), i.e., under Rule that Abercrombie promulgate regulations eral to implement- grounds “acted or refused to act on ing the directives of Title III. Id. class, apply generally to the so that final 12186(b). § year Within a of the ADA’s injunctive appropriate respect- relief ... enactment, regulations DOJ issued ing the II ApltApp. class as whole.” Accessibility based on ADA Guidеlines 23(b)(2)) (em- (quoting 695 Fed.R.Civ.P. published by the Architectural and Trans- added). phasis The district court did not portation Compliance Barriers Board. 28 finding require- abuse its discretion in pt. guidelines C.F.R. 36. These ap- now 23(a) (b)(2) met, ments of Rule pear 36, in D Appendix part to 28 C.F.R. appropriately certified the class. We now “1991 Design,” Standards for Accessible or turn ADA to the merits of the class’s simply Standards,” § the “1991 id. 36.104. claim. 2010, In regu- DOJ revised its ADA III. ADA Violation lations. abrogating Without the 1991 1990, Standards, Congress passed the ADA “to promulgated reg- the DOJ new provide comprehensive a clear and national ulations —the “2010 Standards” —that mandate for the elimination of adopted Accessibility discrimina- newer ADA Guide- against tion appear individuals with disabilities.” lines. See id. The 2010 Standards 12101(b)(1). § 42 Title III in D Appendices part U.S.C. of the B and to 36 C.F.R. 1191, ADA “prohibits against discrimination requirements and also include the of in equal enjoyment subpart disabled the full and D of part 28 C.F.R. 36. Id. We public Spector gen- accommodations.” v. Nor- refer to the 1991 and 2010 Standards Ltd., 119, wegian erally “Design Cruise Line 545 U.S. as the Standards.” (2005). 128, 2169, 125 S.Ct. 162 L.Ed.2d 97 Design apply phases: Standards stores, Hollister, Clothing public like newly Public accommodations were 12181(7)(E). § 42 accommodations. U.S.C. January or constructed altered after provides Title III 15, 2010, September but before need No individual shall be discriminated only comply with the 1991 Standards. 28 against disability on the in the basis 36.406(a) § app. newly C.F.R. Those con- equal enjoyment goods, full and of the September structed or altered between services, facilities, privileges, advan- 15, 2012, March the choice have tages, any place or accommodations of complying with either the 1991 or 2010 public by any person accommodation newly Standards. Id. And those con- (or owns, to), oper- who leases leases 15, 2012, structed or altered after March place public ates a accommodation. comply must Id. with the Standards. 12182(a). ADA, § Any public Id. After the all accom- exceptions: “new There are public required comply construction” of and alterations to modation that is who do Standards, space “available to individuals not so com- yet does mobility, [it] in accоr- wheelchairs for require accessible made ply, must “be governing comply regulations 2010 Standards.” must dance with 36.406(a)(5)(ii). public Additionally, routes to paths circulation and accessible subject to the Stan- Abercrombie & Fitch spaces.” accommodations accessible dards, Co., Finally, as the F.Supp.2d also an “entrance” under the porch was reduce the techni-

If the 2010 Standards Standards, court held that the Design or the number of re- requirements cal stating the 1991 Standard elements below the violated accessible quired Standards, “majority by the 1991 that the entrance used required number 1279; the num- accessible. Id. at requirements people” must be technical Co., facility in a & Fitch elements see also Abercrombie of accessible ber may be reduced at 1081-82. subject part F.Supp.2d to this requirements accordance with a district court’s in We review 2010 Standards. regulations of statutes and de terpretation 36.211(c). §Id. Davis, 339 F.3d novo. United States sets the framework regulatory Cir.2003). This (10th 1223, We review the Hollister stores at is- stage: Because the summary judgment deci district court’s January after sue were constructed novo, applying the same standard sions do 15, 2010, September but before Katt, the district court. Ribeau v. as 44, they comply must with the Aplee. Br. (10th Cir.2012). 1190, 1194 Because F.3d To the extent the stores 1991 Standards. the porches the district court held that Standards, with the 1991 comply do not independent ADA on violate the three with they brought compliance must into support need to find one grounds, we to the extent the 2010 Standards. And the affirm, we must find all want able to but the technical re- 2010 Standards “reduce in analyze each turn. ing to reverse. We Standards, Hollis- quirements” of the 1991 Statutory A. ADA Violations comply with the

ter stores are deemed to long they as meet the Design Standards so that district argues the of the 2010 Standards. requirements lower by holding facility may that a court erred complies if violate the ADA even it porch court held that the district regarding accessible de- regulations Title III of the Hollister stores violates 32-34, sign. Aplt. argues Br. 47. It that First, ways. ADA in the court held three III no court has ever found a Title viola- that, regardless any compliance with the public tion based on a accommodation’s Standards, Design Abercrombie violated in of a design the absence violation of the statutory requirements” the “broad Id. at 33. The 1991 or 2010 Standards. Co., ADA. Abercrombie & Fitch porch that Plaintiffs counter whether F.Supp.2d Specifically, at 1082. raised statutory guarantees violates the broad aims” porch “overarching violated the porch’s on the depend the ADA does not by providing sepa- ADA a “different or use of design but rather Abercrombie’s not “in the rate” accommodation that was Br. 57-59. The design. Aplee. integrated setting.” most Id. at 1082-83 States, amicus, up sums this as United 12182(b)(1)(A)(iii), § (quoting 42 U.S.C. argument: “use” (B)). Second, the court held not that wheelchair Design problem porch “space” was a under the store and access Standards, made users cannot enter and because Abercrombie added). Rather, phasis it is The fact that merchandise. the Plaintiffs’ defendants’ them from a built, that defendants exclude challenge porch as it calling was that defendants them- part of the store discriminatory design, it a leads us to con- part shop- of the selves have made clude that we are dealing design with the to im- experience. Having chosen ping and the exclusive effect of significance, such bue the design. The sources the Plaintiffs cannot, here, as exclude the defendants cite out that Design bear Standards disabilities from it and individuals with appropriate are the measure of ADA liabil- consign wholly them to a different ex- ity in this case. perience. In Antoninetti v. Chipotle Mexican Br. 14. Because Abercrombie “uses” U.S. Grill, Inc., the Ninth Circuit held that central feature of the porches its as the at Chipotle service counters restaurants experience,” argument goes, “Hollister (9th violated the ADA. 643 F.3d customers the full and denies disabled Cir.2010). The case turned on Design in equal enjoyment experience of that vio- Standards, require “equivalent which facil- 12182(a). Aplee. lation of U.S.C. itation” if counters do not meet certain Br. 58. height requirements. (quoting Id. at 1173 Plain- significant There is a flaw the 7.2(2)(iii)). 1991 Standard The court held argument. Apart tiffs’ from its existence Chipotle’s “pоlicy” showing dis- (a design of its and construc- byproduct patrons samples abled prepar- food and tion) Abercrombie doés “use” ing seating food areas was not “equiva- (as porch’s design at all. It is the lent facilitation” because it denied disabled structure) that two-stepped, elevated de- “Chipotle customers the full experience.” persons nies disabled access to the store at Chipotle’s policy” Id. “service or entrance; through the center the Plaintiffs ADA, violated the not because of a statuto- point any policy prac- do not distinct or ry guarantee equal experiences, but be- that can a tice of Abercrombie’s be called comply “it not discriminatory “use” of that structure. cause did with the Guide- (“Because Aplee. See Br. 5-6 the Raised lines.” Id. shoppers Porch Entrance is inaccessible to Multi-Cinema, Inc., Fortyune In v. Am. wheelchairs, shoppers

who use those must considered a movie the- Ninth Circuit use doors at the mall level that are located “policy concerning ater’s the use of wheel- (The ”); porches to the side .... id. at 47 companion chair seats.” 364 F.3d “were constructed in violation” of the (9th Cir.2004). court The noted (The ADA.); at 50 porches id. violated the Design Standards were irrelevant be- built.”). ADA “when Even the United cause, design unlike “cases that involve the keep argument States cannot this “use” public of a accommodation under It straight: first asserts the “com- ADA,” against the case the theater “con- plaint is not the existence of an inaccessi- a public policy accommodation’s cern[ed] entranceway idiosyncratic ble its use but regarding design the use of that (e.g., an integral part shopping experi- as seat).” availability companion use and of a ence.” U.S. Br. 12. It then does an about- plain- Id. at 1085. The court held that the face and states that the “claim here is that ADA tiff claim because the established unnecessarily the defendants’ discrimina- “employed discriminatory policy theater a tory design serves no functional —which practice.” (citing or 42 U.S.C. purpose wheelchair users feel un- —makes (em- (b)(2)(A)(ii)). 12182(a), § welcome at and excluded.” Id. 17-18 hand very problem tion directed instruc- are also Design Standards of statuto- vaguer set rather than an even “to of the standards purpose tive. The general in more framed ry provisions Americans III of the title effectuate terms.”). pt. app. C C.F.R. Act.” 28 Disabilities 36.101). public § A C.F.R. to 28 (guidance terms, Design By their own these “complies with accommodation necessary guidance provide the Standards “accessible.” is deemed guidelines” an “accessible” structure. to build required commentary provides 3.5. Standard this clear: itself makes The ADA 12183(a)(1) construction requires § new an “ac- that renders entity private A it is except where “readily accessible” op- in its inaccessible building cessible” the re to meet “structurally impracticable practices, eration, or through policies in accor of such subsection quirements U.S.C. [42 in violation may be incorpo set with standards dance forth 12182], entity private a example, For § issued regulations rated reference facility inac- to a an entrance can render subchapter.” U.S.C. under en- an accessible by keeping cessible added). turn, 12183(a)(1) (emphasis § hours during certain open trance facility is that a regulations assure (whereas to oth- facility is available “complies with these if it “accessible” time). A greater length ers for a Of 3.5. 1991 Standard guidelines.” inac- similarly be rendered facility could course, an “accessi entity if an constructs with disabilities person if a cessible steps affirmative facility, but ble” takes choice in her or his significantly limited it, then enjoying from persons bar disabled range a of accommodations. 'prohibition the ADA’s it has violated C, (guidance at 914 app. pt. 28 C.F.R. “on the basis separate a benefit providing added). 36.401) (emphasis § to 28 C.F.R. 42 U.S.C. disability.” 12182(b)(l)(A)(iii). is not the But that Fortyune, we are the case in

Unlike porches built case here. Abercrombie use public accommodation’s dealing with claim, “inacces that, were as the Plaintiffs policy prac- design (e.g., a of a distinct Aplee. inception. from their See accommoda- sible” an cоncerning tice whom a must be evaluated Br. 50. Such claim available, an accommodation is when tion Standards; Design the lens of available, through choice of accommoda- or what otherwise, entity’s decision it available), design were an but rather tions is “accessi and build an follow the standards (i.e., shape of a struc- the form and itself inaccessible). meaning. little facility would have ble” it See U.S. ture that render Amusements, Nat’l (“[T]he States v. is that the defen- See United claim here Br. (D.Mass.2001) Inc., 251, 258 unnecessarily F.Supp.2d dis- [adopted an] dants] (To the stan compliance hold that And Antoninetti criminatory design.”). satisfy sections that, dealing with a dards is sufficient when counsels even ADA ren 12183 of the “would spe- 12182 and Design Standards policy,” “service or regulations these compliance der an issue are better cifically addressing fully compliant meaningless, because general prohibitions benchmark than more subject to a Antoninetti, always be structure would found in the statute itself. [12182].”). The claim under ADA 1174; States see also United 643 F.3d secondary exclu its porch’s design- F.3d Hoyts Corp., 380 Cinemas —and solely un evaluated (1st Cir.2004) (“[I]t effect—must more sense to sive be makes Design The district Standards. regula- uncertain der upon a focus somewhat liability by imposing court erred on Aber- The 1991 and 2010 Standards contain identical design decision based on the definitions of crombie’s “entrance” and “space”: “overarching of the ADA. aims” Any Entrance. point access to a build- agrees major with our dissent ing portion or of a building facility or

premise, Design that “we must look to the purpose used for the entering. An Standards to determine whether a defen- walk, entrance includes the approach dant in the design, has discriminated con- leading vertical access to the entrance struction, facility,” or alteration of a but platform, itself, platform entrance disagrees with our conclusion that Aber- door(s) provided, vestibules if entry engage secondary crombie did not in a gate(s), or and the hardware of the en- discriminatory design. “use” of that door(s) try gate(s). posits dissent that Abercrombie “uses” the tool, area, porсh “branding as a display Space. area, room, A e.g., definable toi- However, lounge.” and customer none of room, hall, area, assembly entrance, let deny peo- these “uses” are what disabled room, alcove, storage courtyard, or lob- ple access to the —it by. alleged injury. itself that effects that 3.5; 1991 Standard see also 2010 Standard fact, points the dissent out that Abercrom- 106.5. The 1991 Standards define “Acces- design porch, bie has alternative for the Space” “[sjpace sible as a that complies incorporates one that the “same surf-shack 3.5; guidelines.” with these 1991 Standard “ground By motif’ but at level.” all indi- see also 2010 (defining Standard 106.5 “Ac- cations, Abercrombie “uses” design site, cessible” as building, facility “[a] stepped porches'— n the same manner as its portion complies thereof with this tool, area, “branding display as a and cus- part.”). lounge.” tomer This “use” is not discrimi- it, As we see whether the is a natory in one instance and non-discrimina- “space” given is not the the defini- issue— tory in the other—-it design is the area,” “space” any tion of as it “definable porch layouts, differs between the two is hard to what a “space.” envision is not that must be the sole source of accessibili- Rather, regula- the issue is whether the ty Design discrimination. The Standards in fact require “spaces” tions that all specifically address that issue. accessible, as the Plaintiffs contend. 45-46; Aplee. Br. Br. 11. U.S. Because Design B. Requirements Standard distinguish the 1991 Standards between a “Spaces” “space” and an space,” “accessible seems that regulations clearly anticipated the Design We now turn to the Standards. “spaces” that not all would be accessible. argues Abercrombie that the district court by holding porch erred the is a “space” The Plaintiffs take the use of “space” required Design to be accessible under Standards to extremes. Their Design Af- Aplt. starting point Standards. Br. 44. is 1991 4.1.1. Standard holding ter to be a “space,” Aplee. provides Br. 46. This standard district court that “if newly designed noted nondisabled areas of or new- “[a]ll get customers can to a space, ly buildings customers constructed and facilities re- who use wheelchairs to get quired by have be able to to be accessible and h.1.2 h.1.8 space comply guidelines.” to that as well.” & ... shall with these Co., 4.1.1(1) added). F.Supp.2d Fitch at 1281. (emphasis 1991 Standard space” The term “accessible spaces.”). suggestion, ble the Plaintiffs’ Contrary to the stan- throughout placeholder, a used not 45-46, does this standard Aplee. Br. other compliance with accessible, to denote dards but must be “all areas” say that that fall under regulating areas standards when accessible that areas must be rather “space” (e.g., definition of expansive accessibility. So require standards other (4.22), assembly ar- rooms those for toilet Turning to the looking. keep we must (4.14), (4.33), storage and entrances eas an listed, provides 4.1.2 standard first (4.25)). rooms connect accessible route “shall accessible facilities, accessible accessible buildings, Plaintiffs cannot Simply put, the that are on elements, spaces and accessible every any stating to standard point 4.1.2(2) 1991 Standard site.” the same space.” an “accessible “space” shall be added). Similarly, 4.1.3 re- (emphasis clearly indicate when some standards connecting all accessible route quires must be qualifies “space” as a thing that facility entrances building or “accessible “en accessible, by stating that certain e.g., and elements spaces all accessible ... must be accessible.” trances facility.” 1991 Stan- building within a 4.1.3(8)(a)(i). is no But there Standard added). 4.1.3(1) By their (emphasis dards generally. “spaces” for requirement similar text, require do not these standards plain “Stan position to the DOJ’s To defer —the accessible; rather, they as- to be “spaces” people with disabilities guarantee dards already space is sume that the mentioned 14—Br. spaces,” access to U.S. physical i.e., that another space,” an “accessible agency, under the permit be to “would “eompl[y] it requires standard create regulation, a guise interpreting 3.5. 1991 Standard guidelines.” these regulation.” Christensen a new defacto 576, 588, 120 S.Ct. Cnty., Harris 529 U.S. Standards, Design Throughout (2000). The stan 146 L.Ed.2d 621 from apart used “space” term is seldom expansive ambiguous: dards are See, e.g., modifier “accessible.” “space” independent is not an definition 4.3.2(2) (“At least one accessible Standard accessibility requirement. It was error connect accessible route shall require the district court to (“Accessible routes spaces.”); id. 4.3. simply it accessible because id. 4.5.1 serving any spaces”); accessible “space.”7 (“Ground along accessi- and floor surfaces conclu- opposite rooms and reaches the and in accessible The dissent ble routes (“Entrances disagreement concerns required principal sion. Our spaces”); id. 4.14.1 require “all areas” whether the standards by 4.1 shall ... be con- to be accessible unless outright be accessible “spaces” all accessi- by an route to nected accessible The "use” envi- access. 1991 Standard 3.5. the district court to It was also error for accessibility requirements on the impose "use[s] the standards refers to those sioned section,” “space” because it contained e.g., as a by special application covered See Abercrombie & cafeterias, "more than one use.” care fa- medical "restaurants Co., F.Supp.2d The dis- Fitch at 1281. mercantile, libraries, cilities, ac- business thought porch was apparently trict court transportation lodging, cessible transient space” because Aber- used as an "accessible 4.1.1(2); see also 1991 Standard facilities.” who made "available to individuals crombie (requiring 201.2 multi-use 2010 Standard mobility.” require do not wheelchairs for applicable re- spaces comply with “the space” space an “accessible because A is not use). district court quirements” for each by persons; can be accessed nondisabled it rather, any finding no that the contained made space” only it if it is an "accessible special of these uses. "complies guidelines” for disabled [the] discussed, exempted. As this in the total expressly number of entrances planned facility.) for a expansive reading given is untenable rеpeated (iii) reference to “accessi standards’ An accessible entrance must be spaces” specific reg ble and the standards provided to each tenancy facility in a (for ulating those areas that fall under the example, individual stores in a strip center). “space.” definition of Morales v. shopping Airlines, Inc., Trans World 504 U.S. may One entrance be considered as (1992) 384, 112 2031, 119 S.Ct. L.Ed.2d 157 meeting more require- than one of the (“[I]t statutory is a commonplace of con (a). feasible, ments in Where accessible specific governs gen struction that the entrances by shall be the entrances used eral.”). so, Even the idea that the majority people of visiting or work- “lobby” lounge” a or “customer is a weak ing in the building. one, as the is not a destination 4.1.3(8). 1991 Standard passage

itself but means of into the that, The district court held de if provide safety store. The standards no spite the fact that at least 50% of Hollis- entity complies guidelines an with the accessible, ter’s public entrances are regulating a plainly contemplated feature 4.1.3(8)(a) ‍‌‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌‌​​‌​‌‌‌​​​‌‌​‌​‌​‌‌‌​‌‌​‌‌‌‍store violated 1991 Standard be (e.g., an point building “access to a or cause it was majority “obvious” that a of portion building facility used for the people through enter the inaccessible i.e., “entrance,” purpose entering,” an Co., porch. Abercrombie & Fitch 3.5) Standard later to be told 1082; F.Supp.2d at see also Abercrombie “space” the feature is also a that must Co., F.Supp.2d & Fitch at 1279. Aber- fitting be accessible unless into a limited (1) crombie two arguments: raises exemption. That is not the thrust of the “majority 2010 Standards eliminated the highly ADA regulations. detailed people” requirement, releasing thus Aber- (2) burden;

crombie from this even if “Majority C. Entrance Standards: effective, requirement Plaintiffs People” Requirement many offered no evidence of people how enter through Hollister stores the center argues the district porch compared to the two side entrances. by court holding erred that Hollister’s Id. at 39. Abercrombie is correct both on porches Design regu- violated Standards points. lating entrances. Specifically, argues mentioned, As the 1991 Standard re- by finding noncompliance the court erred among quired, things, several other 4.1.3(8). Aplt. with 1991 Standard Br. 39. all ... public least 50% of entrances “[a]t provides That standard must be accessible.” 1991 Standard (a)(i) At least all public 50% of en- 4.1.3(8)(a)(i). simplified the DOJ ... trances must be accessible. At least standards, providing its entrance that “at ground one must be a floor entrance. percent least 60 of all public entrances any Public entrances are entrances that shall 2010 Standard [be accessible].” loading service entrances. any The 2010 206.4.1. Standard omits ref- (ii) pro- “majority people” Accessible entrances must be erence to the 1991 words, equivalent language. vided in a number at least In other while the 1991 required regulated many number exists the Standard how and which (This (if feasible), applicable building/fire codes. entrances must be accessible paragraph require simply regulates does not increase the 2010 Standard how 1224 need not decide whether We proposition. The must be accessible.

many entrances actual read- intentions or against porch designer’s argument the Plaintiffs’ 2010 intended the use concerning porch DOJ empirical the evidence ing is the “same result” as the to have have been by employees revision or would visitors (quoting Br. 51 28 Aplee. 1991 Standard. issue.9 Given necessary to create a triable 835). However, B, 36, app pt. C.F.R. entrances, logic alone side-by-side three the over- envisioned was result” the “same The Plaintiffs assert will not suffice. accessibility, any continued all level of by to be used porch was intended must entrances about which requirement Br. 50. Aber- majority people. Aplee. B, 36, app pt. C.F.R. See 28 be accessible. likely just it is as maintains that crombie with Abercrombie agree thus at 835. We prefer a more majority people that the requirements that, abandoning the dual (all have the same route entrances direct straight- in favor of a of the 1991 Standard terminus) ascending and de- rather than require- percentage-of-entrances forward III scending porch. Aplt.App. ment, “reduеe[d] 2010 Standard and one which we open question, It is an of the 1991 Stan- requirements” technical not resolve.10 do 36.211(c). There- See 28 C.F.R. dard. only comply with fore, need Accordingly, we hold that each compliance method of simpler awarding grounds court’s for district —that entrances public of its percentage certain unsup- summary judgment Plaintiffs 206.4.1. See 2010 Standard be accessible.8 impose liability It was error portable. on design of Hollister stores based on the sure, simpler. method is To be the new ADA. It was “overarching aims” of the summary sought Although the Plaintiffs liability on the impose error to based also by a was used judgment porch that the “space” that the as a must holding porch working majority people visiting Finally, it error to hold accessible. was (and it be court viewed the district the store because must be accessible supports that no evidence apparent), as people” violating "majority of percentage tion 8. We need not decide whether 4.1.3(8)(a). 60%, component of meets either. as Abercrombie 50% argument the Plaintiffs’ We will not consider pre dissent offers that the Plaintiffs 13, 10.The contrary, Aplee. Br. n. as it is 51 declarations, “deposition testimony, sented appeal, first time on see raised for the Valdez evidence, photographic and architectural (10th Cir.2012). Squier, v. 676 F.3d support infer drawings that all a reasonable event, argument any their —that people majority use the ence that actually two entrance "doors”'— constitutes judg Responding summary entrance.” to a the standards to take into account that fails motion, Plaintiffs had the burden of ment "entrances,” see 1991 regulate the number of probative providing significantly evidence es (8)(a)(i); 2010 Standard Standard 4.1.3 tablishing an essential element of their case. 206.4.1, may "entrance” and that one 322-23, Catrett, Corp. 477 U.S. Celotex door(s),” "entry up one made of more than (1986). 106 S.Ct. 91 L.Ed.2d 265 see Standard 3.5. judgment summary evidence dem Plaintiffs’ nothing porch’s exis more than the regulatory guidance does not mention onstrates 9. nearby positioned two doors. provision, tence between "majority people” see C, (guidаnce simply know about utilization pt. app. to We do not C.F.R. at 929 ques 4.1.3(8)), Regardless, this analysis the various entrances. and commen- nor does the irrelevant, standards, pt. as we hold that the tary 28 C.F.R. tion is now to the 2010 see B, effectively the ad (analysis Standards eliminated app. of "Public at 822-23 Entrances”). requirement majority-of-people in the published ever im- ditional No case has Standards. posed liability public accommoda- ADA on a

1225 “majority it the entrance a of used inference can be drawn as to the number people.” of members of the defined class. Rule 23(a)(1) requires that a class be “so numer We AFFIRM the district court’s denial joinder ous that of all imprac members is summary judgment of Abercrombie’s mo- ticable.” While impracticability is not “a tion. We AFFIRM the district court’s question numbers,” of Horn v. Associated However, of certification the class. we Grocers, Inc., 270, Wholesale 555 F.2d REVERSE the partial district court’s (10th Cir.1977), that is not to say that grant, and later full grant summary of Indeed, numbers are irrelevant. the text Plaintiffs, judgment and we VA- 23(a)(1) of Rule indicates that impracti CATE permanent injunction. the court’s cability joinder of must be due to the class We REMAND this for proceedings case being numerous. See Fed.R.Civ.P. consistent with this All pending opinion. 23(a)(1). notes, As majority impracti motions are DENIED. cability factors,” turns on variety “[a] of MeHUGH, Judge, action, Circuit in such as “the nature of concurring the size claims, dissenting in the individual part part: and the location of members the class or property I concur in majority’s sound analysis subject that is the dispute.” matter of the and ultimate conclusion that Ms. Farrar 7A Charles Alan Wright, Arthur R. standing However, has under III. Article I Kane, Miller & Mary Kay Federal Practice respectfully dissent the majority’s from 1762, (3d § and Procedure at 206-07 regarding numerosity. conclusion As a re- ed.2005) (footnote omitted). But “[t]he sult, I would hold that the district court most obvious consideration is the size of abused its discretion in certifying the class. the class itself.” Thus, Id. at 177. a respectfully I also dissent from the court’s numerosity analysis proper should consid conclusion that Abercrombie did not vio- er how the size of the class affects the late Title III of thе ADA. I would there- joinder practicability given particu “the affirm injunction fore as relates to lar circumstances of the case.” See Rex v. the Park Meadows but store reverse the Okl., 432, Owens ex rel. State 585 F.2d class certification order and vacate the in- (10th Cir.1978). junction as it relates to other Hollister stores. rule, In applying this the Tenth Circuit rejected any limit,” Horn, has “arbitrary I. Class Certification formula,” Rex, 555 F.2d at “set I agree with most of F.2d at majority’s presumptive numerical thoughtful analysis Adams, certification, on threshold. class Trevizo v. 455 F.3d (10th Cir.2006). including the relationship of standing proof And representation. class part But I “absolute numbers” ways unnecessary, on at the issue of numerosity. injunctive I would least the context of hold that or declar point Horn, atory 276; at relief. litigation, the F.2d at Plaintiffs see required present Miller, were 7A Wright more also & supra, evidence to meet their burden of 177-84. establishing the nu- 23(a)

merosity requirement of Rule of the But against formulaic, this caution rig- Procedure, Federal Rules of Civil with re- approach impracticability id does not spect to the class as defined. party excuse the seeking certification from view, my the Plaintiffs have failed to providing evidence as to the size of the establish facts from which reasonable class that particular has been defined. case. in this complaint filing of court from the district it excuse does Nor v. Aber Cross-Disability Coal. the size See Colo. impact considering the (cid:127) Co., 09-CV-02757- No. Fitch case as it & in the crombie factors other class on ” “ 1378531, *1 at WYD-KMT, of 2012 WL analysis’ the ‘rigorous its

undertakes 2012) the class 20, (defining (D.Colo. Apr. See Wal-Mart joinder. of practicability — —, requested Dukes, hand). 131 Although remedy the U.S. Stores, Inc. v. at (2011). relief, is injunctive 374 2551, L.Ed.2d 2541, 180 case is in this S.Ct. 23(a) are “strin relatively narrow Rule a of of on behalf requirements brought 435, Rex, at and per Only 585 F.2d those members. gent guidelines,” of class group past conformance “actual, presumed, not who suffered using wheelchairs sons indispensable.” 23(a) ... remains the raised Rule result of as a discrimination Falcon, 457 U.S. v. Sw. group Tel. Co. General subset of only the and porches, of 2364, 740 72 L.Ed.2d 147, 160, 102 S.Ct. porches the by raised deterred were who class need of a (1982). composition immediately preced years the two within in a suit for readily ascertainable not ac in this complaint filing of the ing the v. El declaratory relief. Shook injunctive not view, Plaintiffs have my tion. (10th 963, Cir. 972 F.3d 386 Cnty., Paso from which even a any evidence offered (“[W]here 276 Horn, at 2004); F.2d 555 of the number of estimate reasonable substantial a composed ... the class can be made.1 of this class members to identi present number, need is great no evidence Furthermore, some requiring one.”). But even every and fy each Supreme with the is consistent of class size relief, party declaratory injunctive burden characterization Court’s “some produce must seeking certification 23(a) a proponent places on Rule established, ascertainable evidence class: “or other class” constituting the numbers plead- forth a mere not set Rule does 23 by estimate reasonable wise establish seeking class cer- A ing party standard. may be who members class number of affirmatively must demonstrate tification even the satisfy “in order involved” is, he Rule—that compliance his numeros of the interpretation most liberal there prove prepared must be Rex, at 436 585 F.2d ity requirement.” parties, sufficiently numerous are in Rubenstein, added); B. fact William (emphasis fact, etc. of law or questions common (5th ed.) § Actions 3:13 Newberg on Class class size (“[A] (em- of the estimate good-faith Stores, 2551 at 131 S.Ct. Wal-Mart number of precise when the Trevizo, is sufficient see also original); phasis in ascertain readily is not class members as burden “a (referring to the at F.3d able.”). (internal quotation proof’ strict burden omitted)). Thus, speculation “mere marks case, people is: the class present

In the involved parties number of as to the use wheelchairs who with disabilities 23(a)(1).” 7A Rule satisfy sufficient because of faced discrimination who have 181-84; § at Miller, supra, Wright & any raised presence Rubenstein, Rather supra, 3:13. accord years prior to two store Hollister 1999) (D.Colo. Corp., 184 F.R.D. require Bell numerosity Although meeting "may include potential class (finding a effort on requires interpret it some I ment as 2,000 on census class, based people” more than CCDC has proponent of a part of a by CCDC provided survey results gen data litigation that as in other demonstrated people demonstrating that 14.5% matter, meeting this bur capable of it is eral definition). class responded fit who Cross-Disability Coal. Taco Colo. den. See proceeding speculation, than based on such second fact—declarations submitted by required we have in other contexts that five CCDC problematic members —is facts are by when established inferences establishing the size of a class because fact, drawn the finder of such infer each of these five members was a named ences must be on based evidence. Sun party present litigation, presented Bradstreet, Inc., Corp. ward v. Dun & to the district court as proposed rep- class (10th Cir.1987). F.2d 521-22 There resentatives. I Aplt.App. 158. “[I]f fore, plaintiff “a must enough show evi there are no members of the class other dence of the class’s size to enable the court than the representatives, named then Rule to make assumptions commonsense re 23(a)(1) obviously has not been satisfied.” garding putative the number of class mem Wright Miller, 7A 1762, § & supra, at 171- Rubenstein, § supra, bers.” 3:13.2 72. Although four of the five CCDC mem- Here, I would that conclude the Plain- bers litigation, withdrew from the the dec- provide did not tiffs the district court with by larations do little themselves to provide enough to make assump- commonsense a reasonable estimate of the size of the tions about the of size the defined class. class.3 I would reach the same conclusion majority numerosity finds to be estab- even if the record is supplement- evidence lished “porches because present were at ed on appeal by public data, census of nearly 250 Hollister stores in over 40 which Plaintiffs ask judicial us to take states,” “CCDC submitted declarations notice. from five of its members who that averred view, In my numerosity relevant in- shop at they malls where Hollister stores quiry here is whether located,” reasonable are infer- and “there are millions of ences can be drawn from the five declara- Maj. Americans with Op. disabilities.” at tions in 1215. combination The first with the census fact is relevant to “the data provide to subject location of the ... a reasonable matter estimate of Miller, 7A size dispute.” & of the class. Wright supra, Relying on the census 1762, data, at 206-07. This fact certainly per- 2010, the Plaintiffs note in “ap- that tains the issue of proximately but impracticability, percent 1.5 the population of by itself it does nothing to people establish the or 3.6 million nationwide used or even size of a existence class. The for mobility,” wheelchairs and that Grocers, In Horn v. Associated Wholesale specified class of size. See 555 F.2d at 275- Inc., (10th Cir.1977), 555 F.2d 270 ac we (concluding 76 that the district court abused knowledged that courts have other that stated "stymied its because it discretion became sought injunctive "where the relief and concept very large ig of numbers” and declaratory, speculative conclusory even and impracticabili nored other factors relevant representations as the size of the are class Furthermore, ty). relying speculative on and (citing Id. at sufficient.” ers, 275-76 953, Doe v. Flow conclusoiy representations is inconsistent (N.D.W.Va.1973) F.Supp. 364 954 Supreme with later Court Tenth Circuit curiam), mem., (three-judge panel) (per aff'd Stores, precedent. See Wal-Mart Inc. v. 922, 1921, U.S. 416 94 S.Ct. 40 279 L.Ed.2d - Dukes, -, 2541, 2551, U.S. 131 S.Ct. (1974)). Although Fourth re Circuit has (2011); 180 L.Ed.2d 374 DG ex rel. Stricklin statement, on lied it has not excused (10th Devaughn, v. 594 F.3d Cir. parties establishing from first the existence of 2010); Okl, Rex v. Owens ex State rel. the class. See Doe v. Charleston Med. Area (10th Cir.1978). F.2d Ctr., Inc., (4th Cir.1975). 529 F.2d the extent approved To Horn of the statement 3. The speculative rely did not on conclusory representa Plaintiffs the five decla- sufficient, below, necessary numerosity tions was not rations to establish nor holding in Horn they because that case appeal. involved have done so on at shopped and who have wheelchairs use wheelchairs who use people

percentage states.5 in stores other the Hollister according to similar each state in Br. 39-40. Aplee. data. recent most court the district Admittedly, grant we into the deeper to delve if I were Even numerosity making the “wide latitude” have done Plaintiffs than data сensus Trevizo, at 1162. 455 F.3d determination. estimate court and to this briefing their ... a fact- it is do so “because But we wheelchairs who use people the number impli id., and therefore inquiry,” specific stores Hollister have in states to make court’s discretion the district cates provide does number porches, evidence. from that inferences rational per- the number estimate reasonable 1259, 1264 Vandehey, 554 F.3d Vallario who have wheelchairs use sons who Cir.2009). must (10th But such inferences the pres- because faced discrimination Sunward See evidence. on be based any Hollister a raised ence of Rex, 521-22; cf. F.2d at Corp., 811 two-year period. relevant during the store seeking party (stating at 436 F.2d Coal., 09- No. Cross-Disability Colo. evi “some produce must certification CV-02757-WYD-KMT, 2012 WL dence”). Here, pro did not Plaintiffs nothing the raw about Simply put, at *1.4 established, ascertain any evidence of vide estimating for basis provides numbers by establish otherwise able numbers wheelchairs who use many people how persons the number estimate reasonable at against actually discriminated were discrimi have been wheelchairs who using two the identified during store Hollister of Hollis- by presence against the nated Further- porches. to its raised years due the relevant within porches ter’s raised extrapolated more, cannot be number Rex, F.2d at 436 585 period. See two-year no evi- provided Plaintiffs have because did not district court (concluding that the members are the five CCDC dence certify a to refusing in abuse its discretion in use wheelchairs people who indicative declaratory injunctive seeking class that have states and the other Colorado no evi presented plaintiff when the relief Indeed, in porches. stores with Hollister class). size of the dence of mo- to the opposition in its memorandum a class size Instead, proved the Plaintiffs to de- pointed certify, Abercrombie tion to 3.6 five members anywhere from at least suggesting that testimony position members, constitute does not which million sent members were CCDC of the five two common- While estimate. a reasonable cоmpliance. for test Hollister stores to infer- and reasonable assumptions sense CCDC 492. Where these ApltApp. II range, help narrow ences can Hollister to visit were recruited members any evidence provide failed to Plaintiffs extrapo- stores, help little they provide of the estimate a reasonable from which people who possible number lating the proble- issue, that is as testers It is their status I 5. not am Although party has raised the no 4. of the class extrapolating the size seeking class by matic the fact also troubled rather, the fact solely plaintiffs; in terms of it is injunctive relief defined these based on disjunction between the Such the defi- past injury. they may fallen within not have alleged by injuries sought and relief having been re- without nition class standing problem present a class does litigation. This un- CCDC cruited Devaughn, F.3d 594 at class certification. using such the reasonableness of dermines Rather, problem of presents a 1197-98. representative of statistically plaintiffs as injunctive re- entitled to class whether people fall within class who number 343, 359-60 & Casey, U.S. 518 lief. Lewis in other states. definition (1996). 606 135 L.Ed.2d S.Ct. n. 116 1229 may number of class members be deduced. such forms of discrimination against indi- This does admittedly not meet viduals with low disabilities continue to be a ” required pervasive threshold serious and for certification of a problem.’ social 674-75, at 121 injunctive class seeking relief. To S.Ct. 1879 (quoting hold 12101(a)(2)). § U.S.C. otherwise Congress would eviscerate the numerosity also found that 23(a) “individuals with requirement in Rule disabilities and run con- continually encounter various forms of trary Supreme dis- Court’s admonition crimination, including ... the discrimina- that the proponent of a class must “affir- tory effects of ... architectural barriers.” matively demonstrate compliance his 12101(a)(5). U.S.C. “After thorough- Stores, the Rule.” See Wal-Mart 131 S.Ct. ly investigating problem, Congress ‍‌‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌‌​​‌​‌‌‌​​​‌‌​‌​‌​‌‌‌​‌‌​‌‌‌‍result, As a I would hold the concluded that there was a compelling district ruling court’s amounted to a “[m]a- need for a clear comprehensive nation- misapplication terial of the Rule 23 fac- al mandate to eliminate discrimination tors.” See B. Wallace Roderick Revocable against individuals, disabled and to inte- Living Inc., Trust v. Energy, XTO grate them into the economic and social (10th Cir.2013) F.3d (concluding mainstream of Tour, life.” American PGA that the district court abused its discretion (internal 532 U.S. at S.Ct. by, among things, other relaxing the bur- omitted). quotation ADA, marks “In the den of proof under Rule I would 23(a)). Congress provided that broad mandate.” therefore the certification order. .reverse years Id. Twelve Congress passed after ADA, opened a store in II. ADA Violation the Park designed Meadows Mall with a I Because would reverse the certification distinctive area open public but order, I address the merits of the case only accessible to ambulatory persons, it as relates to the Park Meadows thereby relegating patrons who use wheel- store. Unlike the I majority, would hold non-integrated, chairs to second-class ar- that Abercrombie Title III violated I eas. believe the ADA regula- and the in respects. First, ADA two I would con- tions promulgated it prohibit under this clude that the is a space that is conduct. required to be and accessible thus violates ADA by the not being connected to an Entrances, A. Spaces, & Routes Second, accessible route. I would con- My disagreement the majority with that clude Abercrombie’s use of the simple. majority As the guide- reads the the ADA by denying violates customers lines, spaces in a newly facility constructed who use wheelchairs the opportunity to need not be accessible a specific unless participate and providing instead them a directly standard requires as much. IAs separate, unequal, non-integrated benefit. guidelines, read the spaces all in a newly “Congress enacted ADA the in 1990 to facility constructed must be un- accessible remedy widespread against discrimination specifically less exempted. Both the 1991 Tour, disabled individuals.” PGA Inc. v. Design and 2010 require Standards all Martin, 661, 674, U.S. 121 S.Ct. non-exempted spaces to be by connected (2001). 149 L.Ed.2d 904 “In studying the an accessible route. Accessible routes legislation, need for such Congress found cannot have I stairs. would conclude that ‘historically, society has tended to iso- the at issue here is а non-exempt late and segregate individuals with space disabil- is not on an accessible route ities, and, despite improvements, some and Abercrombie has therefore violat- comply with to spaces all constructing requires and by designing ADA

ed I am con- majority, Unlike guidelines. facility. non-compliant requirement overarching vinced comply to required 4.1.1(1) are spaces a. All itself. in standard present other- unless regulations with 41.1(1), “re- in section phrase When exempted. wise 4.1.3,” 4.1.2 and by to be accessible quired newly or begin “newly designed with modify Design Standards is read The facilities,” the buildings that all non-ex- and requirement general constructed guide- clear: comply meaning must with becomes empt areas newly designed lines: or newly areas All newly ... or and facilities newly designed buildings All constructed areas re- 4.1 and facilities these buildings guidelines, comply constructed shall 4.1.3 by 4.35, provided 4.1.2 and unless otherwise through to be accessible quired existing special build- in a modified portions or as this section and altered to be accessi- required facilities section. ings application and these comply with shall by 4.1.6 ble building is reading, if a new Under 4.35, unless oth- through 4.1 guidelines, or of 4.1.2 requirements subject or as in this section provided erwise building must 4.1.3, of that all areas then application section. special in a modified unless guidelines, comply with also 4.1.1(1); Stan- of this propriety accord 2010 provided.6 1991 Standard otherwise “required comply un- 201.1, phrase areas must reading 203.1. all dards —that by explic- 4.1.3” could and 4.1.2 reinforced exempted to be accessible less —is “All that certain modifying either areas” 4.1.1 standard read as statement newly frequented constructed ... designed spaces “newly “non-occupiable modify pur- repair If read to personnel facilities.” buildings only by service does, rule with the areas,” majority comply required as the poses” “All 4.1.1(5)(b)(ii). Standard guidelines. reads as follows: comply required were never spaces If to be accessible required ... All areas instance, in the first guidelines shall with ... 4.1.3 4.1.6 by 4.1.2 exempt cer- no reason to there would be 4.1 guidelines, these comply spaces. types tain 4.35, provided unless otherwise through special in a or as modified in this section by the also reinforced reading is This section. application in the 2010 provision clarification on its and elaboration 4.1.1(1). Design Standards majority As the 1991 Standard The 2010 standards exceptions. list of “acces- define notes, Design Standards state, confusing language site, remove building, “[d]escrib[ing] as sible” newly newly designed areas of complies “All portion thereof facility, or and al- buildings and facilities 3.5; constructed accord Id. guidelines.” with these buildings and existing portions majority cor- tered The 106.5. 2010 Standard require- with these comply shall facilities in nothing standards rectly states (emphasis 201.1 2010 Standard ments.” 4.1.6 4.1.3, expressly 4.1.2, presumably 4.1.3(19) (requiring Compare guidelines.”). say the must areas 6. When the Standards 4.33), with comply assembly areas to with guidelines, that means comply with areas re- ("Assembly and associated 4.33.1 3.5 1991 Standard areas be accessible. must comply by shall site, 4.1 to be accessible building, facility, quired or (Accessible "a means 4.33”). complies these portion thereof added). Thus, Design the 2010 Standards state that all “areas” must comply with the guidelines newly leave no doubt that all areas of unless exempted, I would con requires clude this buildings comply.7 constructed must all non-exempt “spaces” state, “Sites, comply. I do not new standards share the majority’s further build- concern facilities, expansive about “the definition of ings, exempt and elements are ‘space’” Design Standards. Maj. requirements from these extent Op. at 1221-22. Although “definable area” specified by 203.” 203.1 (emphasis could be expansively, read added). the enumerated Although standard 203.1 does not list of spaces places a limit on that defini “spaces” generally list exempt, as the enu- tion. “[T]he commonsense canon of nosci- exceptions merated list of includes several tur a sociis ... counsels that a word is specifically areas “spaces,” identified as given precise more content the neigh such spaces” as “limited access and “ma- boring words with which it is associated.” See, chinery spaces.” e.g., 2010 Standards — Loans, Quicken Inc., Freeman v. U.S. 203.4, Again, 203.5. the еxemption of cer- —, 2034, 2042, 182 132 S.Ct. L.Ed.2d 955 tain types spaces supports a reading (2012). Thus, “space” must not be a which all spaces subject are otherwise area, definable but it must be a definable guidelines. area in the “room, same manner as a toilet I am interpretation convinced this is the room, hall, assembly area, entrance, stor reading correct of the 1991 standards. room, age alcove, courtyard, lobby.” least, 4.1.1(1) But at the very standard 3.5; See 1991 Standard accord 2010 Stan ambiguous. regulation When a is ambigu dard 106.5. ous, we agency’s must defer to the inter porch raised “space.” issue is a pretation regulations, of its own even in an Indeed, the majority concludes that Robbins, amicus brief. Auer v. 519 U.S. entrance, is an separate from the 452, 462, 117 S.Ct. 137 L.Ed.2d 79 two flanking entrances the porch. See (1997); see also Christensen v. Harris Maj. 1223-24; Op. at see also 1991 Stan- 576, 588, Cnty., 529 U.S. 120 S.Ct. entrance); dard 3.5 (defining accord 2010 (2000). 146 L.Ed.2d 621 Ambiguity exists (same). “entrance,” Standard 106.5 As an when statute regulation squarely “[n]o the porch expressly would fall within the Am., addresses” the issue. See Talk Inc. “space.” definition of a But as discussed —Co., Michigan —, Bell Tel. U.S. below, fully more I would conclude that 2254, 2260-61, 131 S.Ct. 180 L.Ed.2d 96 just is not an entrance. It is (2011). Therefore, I would defer to the also an area that is definable in the same Department of interpretation Justice’s sense as a lobby. room or See 1991 Stan- the Design all non-exempt Standards: ar 3.5; dard However, 2010 Standard 106.5. eas must comply guidelines. with the I agree majority with the that concluding If all “areas” comply, must a “space” is a space does not end the must comply. This is Design because the inquiry. We must next determine whether “space” Standards define aas “definable the space exempt is from compliance with area.” 1991 Standard (emphasis 3.5 add- guidelines. the I would conclude that it is ed). Thus, Design when the Standards not. porch non-exempt The is a space that Department 7. The Analysis of Justice’s and App. 28 C.F.R. Pt. B at 829. The com- Commentary on the 2010 mentary ADA Standards for does not address "[e]ditorial Design Accessible discusses changes.” respect “selected sub- Id. With to the amend- changes” 201.1, stantive Design between the 1991 ment reflected in standard the com- Design Standards and the 2010 mentary Standards. is silent. regu- the comply requirement accessi- to an connected to be required is argue not does below, lations and it was not As described route. ble and, otherwise. route accessible connected or the 1991 either therefore, not meet does exempt as view, porch the Nor, my Design Standards. Design Stan- under the an entrance state, Design Standards dards. The the comply does porch The b. ... entrances public all 50% of “At least Design Stan- the under ADA 4.1.3(8)(a)(I). accessible.” must be dards. 4.1.3(8) inference of standard negative The complies space whether To determine need not public all entrances half of is that Standards, look I would Design with the However, the guidelines. the comply with I would exceptions. any general first to feasi- “Where provides, further standard for requirements specific then look the en- shall be ble, entrances accessible determine involved to space type of the majority of people by the trances used and entails whether compliance what building.” Id. in the working visiting or any relevant ex- contain specific standards 4.1.3(8)(a). ceptions. that no evidence concludes majority Standards, sec- Design Under district which the from presented was spaces and a list provides 1.1 tion 4. was used porch infer that court could from the exempt are other areas working visiting or majority people by a guidelines: I dis- Hollister. Meadows in the Park (i) obser- required to Accessibility is not sup- lack of evidence agree. Unlike secu- for primarily galleries used vation as to court’s inference district porting the (ii) non-oceupiable or rity purposes; deposition size, contains the record class ladders, cat- only by spaces accessed declarations, evi- photographic testimony, pas- very narrow walks, spaces, crawl all drawings that dence, architectural (non-passenger) freight sageways, a ma- inference a reasonable support only by ser- elevators, frequented at entrance people use jority such rеpair purposes; for personnel vice The four Hollister. Meadows the Park to, limited include, are not spaces but named longer no who CCDC members piping penthouses, pits, elevator elevator declara- litigation submitted in this parties catwalks. equipment were side entrances stating that the tions shutters “looked like to find and 4.1.1(5)(b).8 difficult the present 1991 Standard the rest of the from indistinguishable ... testimony, case, photographic deposition I of the store.” shutters on exterior drawings all evidence, and architectural 123-24, 118, 121, 126-27. Aplt.App. an ob- neither establish been modified have since entrances side for securi- primarily gallery used servation Aplt.App. Ill more visible. make them space non-occupiable nor ty purposes did not see Farrar But Ms. ladders, etc., fre- 734-36. by only accessed Meadows the Park entrances re- two side personnel service quented took modifications after excep- Hollister Thus, general pair purposes. 462, 657, though id.; Aplt.App. II place, from exempt tion does not compliance on exempt from porch is exception contains 4.1.1 8. also Standard impracticability. 1991 Stan- this basis. structural argued 4.1.1(5)(a). not has dard Abercrombie admittedly she did not continue to look for Because a majority people use the being accessible entrances entrance, after deterred porch the porch entrance was II by porch, Aplt.App. the 657-59. required to be “accessible.” 1991 Stan- 4.1.3(8)(a). dard As an “accessible en- The porch inference that the was the trance,” porch the required was to be on by majority entrance used of visitors is an “accessible route”: supported by also Abercrombie’s own ac- required Entrances to be by accessible Indeed, tions. it was until after this 4.1 shall be part of an accessible route litigation began that Abercrombie directed complying with 4.3_They shall also managers store to unlock the side en- by connected an accessible route to opening trances when Ill Aplt. the store. all spaces accessible or elements within 734. And Aрp. representa- Abercrombie the building facility. or declared that designed tives was porch to draw customers into the store. Ill 4.14.1; 4.1.3(1) (“At Id. see also id. least ApltApp. Tellingly, 732-83. Abercrombie one accessible complying route with 4.3 submitted a declaration stating roping shall connect accessible building facility or porch off the entrance “would be confusing entrances with all spaces accessible and to customers” and would cause “immense within elements the building facility.”); unquantifiable and loss sales and reve- 4.3.2(2) (“At id. least one accessible route Ill ApltApp. nue.” 1071. shall connect buildings, facilities, accessible elements, spaces that are on the same view, In my this evidence combined with site.”); 4.3.2(3) (“At id. least one accessible the photographs and architectural draw- route shall connect building accessible ings porch illustrate that the is the focal facility entrances with all spaces accessible point storefront, trees, decora- and elements and with all accessible dwell- tions, chairs, upholstered mannequins dis- ing units within building or facility.”). merchandise, playing a large market- An “accessible route” is a “continuous image ing on the back wall. I ApltApp. path connecting unobstructed all accessible 298-302; Aplee. Furthermore, Br. 7. spaces elements and a building or facili- photographs of the Park Meadows Hollis- ty” corridors, that “may floors, include depict ter storefront a large pillar blocking ramps, elevators, lifts, and clear floor one’s view of the side entrance into space particular fixtures.” Id. 3.5. Of “Bettys” section of the I ApltApp. store.9 here, relevance accessible route “[a]n does 298-302. I would hold that it is a small stairs, not include steps, or escalators.” imminently step reasonable to infer added). (emphases 4.3.8 Because it this from evidence that a majority peo- stairs, by was accessible the porch ple porch use the to enter the Park Mead- was not connected to an accessible route. Hollister. ows And because Abercrombie Therefore, Design violates cоntrary has identified no sup- evidence to Standards. port a reasonable majority inference that a

of people do not use to enter also Design violates store, genuine no dispute of material fact space respects. Standards as a in other on point.10 exists majority concludes that because the 9. photograph at the end majority attached of this is the entrance used of cus- tomers, decision as Attachment 1. suggested any it has never or offered fact, porch, evidence that the is not the Although challenged has main entrance to the store. adequately proved whether CCDC used for can be and cables wires only telephone entrance, need porch the an

porch is functions, treatment “regulatory relating to en- different guidelines with comply use”). above, the [their] I indicated on vary depending as But can trances. Abercrom- entrance. just an not porch is have do not Design Standards The 1991 deposition and declarations submitted bie at dis- specifically directed any provisions characteriz- court the district testimony to But in lounges. or customer areas play III “display area.” as a the ing space— a ways, is of these each Aber- 738, 968, One 971-72. Aplt.App. manner in the same i.e., area a definable really not “It’s explained, official crombie non-exempt lobby. or As a room as area.” display of a entrance, more it’s an are re- entrances, spaces non-exempt all that the Another stated 968. ApltApp. Ill route. on an accessible to be quired analo- display a visual as “used porch is 41.2(2) (“At one accessible least retail Standard in another store window to a gous ac- connect 4.3 shall complying with 971-72; id. route see also ApltApp. Ill store.” facilities, ac- buildings, also cessible accessible record establishes at 738. elements, spaces much like a and accessible area a definable cessible porch is 4.43(1) 908-09, site.”); which id. lobby, ApltApp. III the same or on room that are as and a lounge complying (“At as a customer functions one accessible route least designed to draw marketing space, building distinct accessible 4.3 shall connect strengthen store and into the customers accessible all facility entrances with or at 732- image. Id. brand the Hollister or building elements within spaces and 33. 4.3.2(3) (“At acces- least one facility.”); id. build- connect shall accessible uses, sible route multiple each has space a

Where all accessible facility entrances with ing or comply with the space must portion accessible and with all use. See elements applicable spaces requirements facili- building Entm’t or Blockbuster-Sony Music within the dwelling units Caruso 730, 737- Waterfront, 193 F.3d ty.”). Ctr. at J.) Cir.1999) (Alito, that an (3d (holding a Having determined on an required assembly area was display area and as a functions space that all “accessible route because accessible therefore, and, gener- lounge, customer on accessible required to be spaces” I next con- by guidelines, ally covered not route, of whether “regardless exception. within an falls sider whether meet required to facility also [was] as may qualify a display areas Some concerning Standards DOJ more specific by the being exempted also while “space” areas); assembly for seating plans” fixed employee work areas. for exceptions 41.1(2) (“When a build- 1991 Standard cf. 4.41(3) re- limits on the places Standard one more than use facility ing or contains used that are “[a]reas quirements section, application special covered 4.41(3). But areas.” as work require- comply with portion shall each exempt work as an qualify porch does Am., use.”);11 Talk ments for customers, see open it is area because (stating under a n. 6 2265 & S.Ct. at exception id., of no other I am aware that when scheme regulatory

different use, room, one space more than contains phrase the Design Standards applicable comply with "special applica- portion shall specific to each principle in terms Design Standard the 2010 Stan- use.” requirements for tion sections.”. But gener- principle apрlies clarify that dards 201.2. site, building, facility, ally well: as "Where

1235 exempt that would from space compli- quire porch, entrance, as an to be on Design ance with the Standards. an accessible route. But the standards governing spaces used purposes for other summary, In Design Standards con- than entrances have not changed. There- overarching tain an requirement that all fore, I would hold porch that the must be including spaces comply areas — —must on an accessible route to brought into turn, guidelines. guide- compliance with the Design Stan- require lines that all non-exempt spaces be dards. on an accessible route. majori- Unlike the ty, I would porch conclude that is a As a definable area similar to a room or non-exempt comply entrance which must lobby, the porch is a space and is not with the Design Standards. But even exempt any under general exceptions. if the majority is correct the stan- The Design Standards expanded and governing dards exempt entrances upon elaborated the list of exceptions con- porch from the provisions accessible route tained in the Design Ex- Standards. entrance, as an the accessible provi- route ceptions addressing spaces in the 2010 equally applicable sions are porch as “[ajreas Design Standards include raised a definable lobby, area like a room or primarily purposes for security, life which is used as a display area and cus- safety, or fire safety,” 2010 Standard Thus, lounge. tomer I would hold 203.3; “[sjpaces ladders, only by accessed porch comply does not with the 1991 De- catwalks, spaces, crawl very narrow sign Standards because it is not on an passageways,” 203.4; id. “[sjpaces fre- accessible route. quented only by personnel service maintenance, repair, or occasional moni- majority

As the explains, any injunctive toring equipment,” 203.5; id. and cer- relief based on the violation of the 1991 tain employee work areas. Id. 203.9. All require standards would compliance with spaces such “shall required not be com- the 2010 Design Standards. If thоse new- ply requirements with these or to be on er exempt standards the porch being from an accessible route.” (emphasis Id. 203 route, then, on an majori- accessible as the added). porch, which is used as a notes, ty effectively will be display area and customer lounge, does deemed to be in compliance. I am con- not fall any into general these excep- vinced that the 2010 Design Standards also tions. require porch to be on an accessible

route as a display area and customer any Nor does specific more exception Thus, lounge. even if the porch is an exempt complying from with the exempt entrance under the 2010 Design requirement accessible roúte in this con- Standards, it must be on an accessible text. Because the qualifies area as a route. “space,” above, as required discussed it is to be on an accessible route exempt- unless

c. brought To be compliance into 201.1, ed some provision. other See id. Standards, Design the 203.1, 206.2.2, 206.2.4. As with the 1991 porch must be on an accessible Standards, Design space may be exempt route. as an employee area, 203.9, work see id. I agree majority with the that because but Design the 2010 Standards define an majority-use requirement “[ajll was “employee removed work area” any por- as Standards, from the 2010 Design the stan- tion of a space only by employees used governing dards longer entrances no re- used for work.” Id. 106.5. space the distinct access to complete cus- open to it is because exempted

is not porch. is the employee only for used is not tomers Thus, hold I would work. Separate & Participation, be on an B. Denial and must space non-exempt

is a Integration & Unequal 206.2.2,206.2.4. route. Id. accessible Benefit must majority that we the with agree I ambiguity in any is there extent To the to determine Design Standards look to the placing the require, regulations the what in has discriminated a defendant whether “consistent route is an accessible on porch of a construction, alteration or design, the enabling people of purpose ADA’s the with use in the that discrimination facility, but in equally the share to with disabilities regulato- by other controlled facility is of a accommoda aby public provided benefits nothing But statutory provisions.12 ry and It is also Caruso, at 733. F.3d tion.” arguing from the Plaintiffs prohibits —as ad interpretation the with consistent appeal and on they have both below —that Justice, Department by the vanced in both has discriminated Abercrombie Auer, 519 deference. entitled to is which facility. use of the design and terms of 462, 117 905. S.Ct. U.S. at as a distinct space uses the Abercrombie area, customer tool, and display Design branding Stan- Thus, the 1991 as people to who accessible is not lounge that governing dards, provisions if even the this hold that I would wheelchairs. use Design Standards the 2010 entrances the within as “discrimination” qualifies use complying with the from porch the exempt ADA. III of the Title meaning of entrance, an as provisions accessible route to apply the provisions accessible route the a list of of the ADA contains Title III customer area display a porch as discrim- it defines as that general activities (“Where 201.2 2010 Standard lounge. See to opportunity an the denial of ination: room, space facility, site, building, 12182(b)(l)(A)(i), §§ 42 U.S.C. participate, use, portion each one contains more than unequal 12182(b)(1)(C); provision an the require- applicable comply with shall 12182(b)(1)(A)(ii); benefit, § id. use.”). the doors at While that ments for benefit, do- unless separate aof provision exempt and thus are porch of the the end a benefit necessary provide to ing so route, ‍‌‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌‌​​‌​‌‌‌​​​‌‌​‌​‌​‌‌‌​‌‌​‌‌‌‍accessible on be to provided need not that effective as is as to at least 12182(b)(l)(A)(iii).13 connected must be Fur- § itself others. simply, al- More benefits thermore, requires route. the statute one accessible to be may design its stores disabilities people to though provided setting integrated interior of the in the most afforded access provide individual. doors, to the needs appropriate it cannot side through store 12182(b)(1)(B). §Id. wheelchair-using public from deprive provisions of regulatory statutory general may to de- facility be relеvant “Use” 12182(b)(1). § 42 U.S.C. apply. ADA. design standards termining which sense, use of a a defendant’s it is not rather, to discrimina- provisions de- limited discriminatory; 13. These facility or customers.” obligation "clients against tion may give rise to an use fendant’s 12182(b)(l)(A)(iv). hold § I would way. U.S.C. a certain But facility in design the sum- at the established Plaintiffs have facility may also relevant "use” of a is a stage that Ms. Farrar mary judgment discriminatory may itself be use a defendant’s (in)actions customer. the more violate if the defendant’s I hold that Abercrombie’s experience would use that all enjoy customers can provisions. equally, violates each of these even without access to the porch. indicates, preceding As the I discussion By trees, placing decorations, uphol- majority’s with the conclusion disagree chairs, stered mannequins displaying mer- “Abercrombie does not ‘use’the chandise, large and a marketing image on Maj. at all.” Op. at 1219. Abercrombie the back wall porch entrance, of the Aber- entrance, space uses the as an customer provided crombie has a “facility, privilege, area, display lounge, decorated in a advantage, or accommodation” to some of fashion calculated to draw customers into its customers while denying some custom- strengthen the store and the Hollister opportunity ers the participate on image. During brand and litigation, disability. basis their 42 U.S.C. Abercrombie made much fact that 12182(b)(l)(A)(i).14 The effect is to cre- the was intended a porch display as visual ate a benefit for some customers that is only, sensory and that the experi- “visual denied to others on the basis of disability. of porch ence the is the same for able- By requiring customers who are unable to bodied customers and who customers use use stairs to enter the store through en- mobility Ill devices.” Aplt.App. 940- trances that are not adorned or used even 41, 972; Aplt. see also Br. 45-46. Yet remotely entrance, like the porch Aber- presented option bringing when with the of crombie has a “facility afforded ... or into compliance by closing it porch off accommodation that is not equаl to that customers, to all submitted individuals,” afforded to other id. stating declaration this was the § 12182(b)(l)(A)(ii),15and that is “different “worst, and acceptable” least of the options separate or from provided to other presented by the district court because it 12182(b)(l)(A)(iii).16 § individuals.” Id. extremely would “be detrimental to the Finally, Abercrombie’s use of this exclu- carefully Company’s branding crafted ef- lounge, sive entrance as a customer brand- permanent forts” and would “cause tool, dam- area, ing and display combined with age to Hollister Ill ApltApp. brand.” provision Abercrombie’s of segregated, in- 1071. response Abercrombie’s belies its entrances, ferior accessible violates the assertion that the use porch of the as a provide ADA’s mandate to facilities and tool, lounge, branding customer and dis- accommodations “in the most integrated play provides area sensory a visual merely setting appropriate to the needs of the 12182(b)(1)(A)(i) service, provides, Subsection facility, privilege, advantage, "It or ac- 14. discriminatory subject shall be to equal an individu- commodation that is not to that afford- al of or class individuals on the basis of ed to other individuals.” disability or disabilities such individual or class, 12182(b)(l)(A)(iii) contractual, provides, 16.Subsection directly, "It through or licens- discriminatory provide shall be to ing, arrangements, individ- or other to a denial of the individuals, ual or class of on the basis of a opportunity of par- the individual or class to disability services, or of such disabilities individual or ticipate facilities, goods, in or benefit from the class, contractual, directly, through or privileges, advantages, licens- or accommo- ing, arrangements good, or other with a entity.” of an ser- dations vice, facility, advantage, privilege, or accom- 12182(b)(l)(A)(ii) provides, Subsection separate "It modation that is or different from 15. individuals, discriminatory be provided shall to afford an individual to other unless such individuals, class necessary provide on basis of a dis- action is the individual ability service, or disabilities of good, such individual or or class of with a individuals class, contractual, directly, through facility, privilegе, advantage, licens- or accommoda- ing, tion, arrangements opportu- or other opportunity with the or other that is as effective participate nity good, provided in or benefit from a as that to others.” to an accessible porch connecting the 12182(b)(1)(B).17 The § individual.” in the prohibitions specific The route. exclusion “prohibit[s] mandate integration general light of the read must ADA with disabil- of individuals segregation Caruso, at 739- 193 F.3d See C, prohibitions. at 901 App. C.F.R. ities.” 28 clear make prohibitions general integration Ill’s Title on guidance (agency ADA is inclusion of the purpose who excluding customers mandate). By at the disabilities. people re- from the use wheelchairs message sends a Hollister Meadows unadorned, inferi- Park to use them quiring Design Stan- Construing the effectively of exclusion. entrances, Abercrombie or side result allows that way that in a dards disabilities persons “relegates purpose the stated undermine would id. citizens.” of second-class status ADA. III of the vio- Title use of Thus, Abercrombie’s ADA.18 III of the lates Title affirm I foregoing, would light summary judg- entry of district court’s is in that Abercrombie My conclusion Plaintiffs, its in favor the ment provisions of general violation the Park relating to injunction entry of an that Aber- my conclusion ADA reinforces store.19 by Meadows Design Standards crombie violated I would hold 12182(b)(1)(B) 19.Because provides, 17. Subsection ADA, an facilities, also address services, I "Goods, privileges, would advan- violated the unnecessary appeal afforded aspect shall tages, of Abercrombie’s and accommodations disability in most namely, whether majority's analysis: individual to an the needs appropriate to integrated setting in fash- discretion abused its court the district the individual.” granted. I would injunctive ioning the relief re- was district court hold that where design Compliance standards 18. injunction and tailored an quired to issue fact, Aber- been difficult. not have would many con- injunction accommodate stores with designed of its some crombie Abercrombie, district cerns raised motif, inclusive but surf-shack same fashion, its abuse discretion.? court did not constructing porch at by simply a store with that picture of ground level. A as this decision Attach- design is attached ment ATTACHMENT 1

1240

ATTACHMENT America, STATES UNITED

Plaintiff-Appellee, WHITE, Defendant-

Joseph N.

Appellant.

No. 12-3299. Appeals, States Court

United

Tenth Circuit. 2, 2014.

Sept.

Case Details

Case Name: Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co.

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Sep 2, 2014

Citation: 765 F.3d 1205

Docket Number: 13-1377

Court Abbreviation: 10th Cir.