Appellants` Motion To Stay Injunctive Relief

Transcription

Appellate Case: 13-1377
Document: 01019163007
Date Filed: 11/25/2013
Page: 1
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
COLORADO CROSS-DISABILITY
COALITION, et al.,
Case No. 13-1377
Plaintiffs-Appellees,
V.
ABERCROMBIE & FITCH CO., et al.,
Defendants-Appellants.
APPELLANTS’ MOTION TO STAY INJUNCTIVE RELIEF
PENDING APPEAL
Appellants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., and
J.M. Hollister LLC ("Abercrombie") move the Court pursuant to Fed. R. App. P. 8
to stay the injunction entered by the District Court on August 20, 2013 (ECF No.
211) until their appeal is adjudicated by this Court. The injunction requires
Abercrombie to reconstruct the entrances of hundreds of retail clothing stores, at a
cost of nearly $9 million, under strict deadlines that require them to complete the
work at 77 stores each year beginning five weeks from now. As set forth in the
attached Memorandum in Support, the District Court granted this relief based on
its resolution of substantial legal issues of first impression that warrant appellate
review, and the injunction entered below will cause irreparable harm and
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effectively render this appeal moot unless it is stayed to temporarily preserve the
status quo.
Abercrombie previously conferred with Appellees and asked them to agree
to a stay of the injunction pending appeal, but the parties were unable to agree, and
Appellees oppose this Motion.
Respectfully submitted,
s/ Mark A. Knueve
Thomas B. Ridgley
Mark A. Knueve
Richard T. Miller
VORYS, SATER, SEYMOUR AND
PEASE LLP
52 E. Gay Street
P.O. Box 1008
Columbus, Ohio 43215
Tel: (614) 464-6387
Fax: (614) 719-4808
maknueve@vorys.com
OF COUNSEL:
HOLLAND & HART LLP
555 Seventeenth Street, Suite 3200
Post Office Box 8749
Denver, CO 80201-8749
Tel: (303) 295-8749
Fax: (303) 975-5464
geurich(2ho1landhart.com
Counsel for Defendants-Appellants
Document: 01019163007
Page: 3
CORPORATE DISCLOSURE STATEMENT
Appellant Abercrombie & Fitch Co. discloses that it has no parent
corporation and that no publicly held corporation owns 10% or more of its stock.
Appellant Abercrombie & Fitch Stores, Inc., discloses that its parent
corporation is Abercrombie & Fitch Co., which is a publicly traded company. No
other publicly-held corporation owns 10% or more of its stock.
Appellant J.M. Hollister LLC, d/b/a Hollister Co., discloses that its
parent corporation is Abercrombie & Fitch Co., which is a publicly traded
company. No other publicly-held corporation owns 10% or more of its stock.
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MEMORANDUM IN SUPPORT OF
APPELLANTS’ MOTION TO STAY INJUNCTIVE RELIEF PENDING
APPEAL
I.
Introduction
A.
Jurisdiction
The District Court had jurisdiction over this litigation pursuant to 28
U.s.c.
1331 because Appellees asserted a single claim for injunctive relief under the
Americans with Disabilities Act, 42
u.s.c.
12181, et seq. (Complaint, ECF No. 1.)
The District court entered final judgment on September 5, 2013, granting a
permanent injunction that awarded all of the relief sought by Appellees. (Final
Judgment, ECF No. 214.) Appellants ("Abercrombie") timely appealed from the
final judgment on September 9, 2013. (Notice of Appeal, ECF No. 216.) This
Court now has appellate jurisdiction over the appeal pursuant to 28 U.S.C. 1291.
B.
The District Court’s rulings on the merits
Appellees filed this action alleging that 231 Hollister clothing stores violate
the Americans With Disabilities Act ("ADA"), 42 U.S.C. 12181, et seq., because
they have one elevated entry door (which is located at the front of each store on a
porch-like structure with steps) in addition to two level, fully accessible entry
doors (which are also located at the front of the store, on each side of the elevated
entry door). The District Court granted summary judgment to Appellees (Order,
ECF No. 200) and then entered final judgment and a permanent injunction
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requiring Abercrombie to remove, ramp, or close off all of the elevated entry doors
at these stores by January 1, 2017, at a rate of at least 77 stores each year,
beginning on January 1, 2014. (Permanent Injunction, ECF No. 211.)
The District Court’s order granting injunctive relief was based upon rulings
on several legal questions of first impression that will be addressed in
Abercrombie’s appeal to this Court, including (1) whether Appellees and their
putative class members have standing to obtain injunctive relief against Hollister
stores where they have never shopped and have no intention of shopping in the
future; (2) whether the three adjacent entry doors at the front of each Hollister store
violate the ADA Standards that define ADA accessibility requirements;
(3) whether class certification and class-wide relief is proper in the absence of any
showing that members of the defined class actually exist as to any store; and
(4) whether the District Court was correct in refusing to balance the benefits and
harms to the parties in deciding whether to grant injunctive relief.
C.
The District Court’s ruling on Abercrombie’s motion to stay
The injunction entered by the District Court requires Abercrombie to
complete extensive (and expensive) construction work at hundreds of Hollister
stores on a strict time-table, and Abercrombie’s appeal will be rendered moot if it
must begin this work and incur millions of dollars in costs before this Court has an
opportunity to rule on the novel legal issues presented by this case.
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Abercrombie moved the District Court to stay the injunction pending the
resolution of its appeal (Motion, ECF No. 217), but the motion was denied.
(Order, ECF No. 233.) The Court concluded that Abercrombie failed to show that
it will sustain irreparable injury in the absence of a stay, after finding that the
$8 million to $9 million cost of complying with the injunction, and the disruption
of business at the stores during construction work, are "relatively minor" harms in
relation to Abercrombie’s net worth; that Appellees will suffer substantial harm if
a stay is granted because they will "continue suffering the indignity" of using
accessible entry doors at stores that also have one elevated entry door; and that
Abercrombie is not likely to prevail on appeal, so the public interest is best served
if Abercrombie complies with the injunction now. (Id., at 3-5.)
As explained below, the legal issues presented by this appeal are serious,
substantial, difficult, and doubtful, and they warrant appellate review before they
are mooted by the demolition of the store entrances. Moreover, Abercrombie will
be irreparably harmed if the store entrances must be torn out before the Court of
Appeals has time to consider and resolve these important legal questions, while
Appellees, who admit that they are "ADA testers" who have no interest in
shopping at Hollister stores, will sustain no injury if a temporary stay is entered
that preserves the status quo. Accordingly, Abercrombie respectfully moves the
Court to stay the District Court’s injunction pending appeal.
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II. Argument
A.
Applicable legal standards
"[A] s part of its traditional equipment for the administration of justice, a
federal court can stay the enforcement of a judgment pending the outcome of an
appeal" in order to "hold a ruling in abeyance to allow an appellate court the time
necessary to review it." Nken v. Holder, 556 U.S. 418, 421 (2009), quoting
Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 9 (1942). The Courts of Appeals
have authority to stay a District Court’s injunction, although a party must
ordinarily first move the district court for a stay pending appeal. Fed. R. App. P.
8(a)(1)(C). See, e.g., Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th
Cir. 2001). Abercrombie unsuccessfully moved the District Court for a stay of the
injunctive relief in this case. See ECF No. 217; ECF No. 233.
"The purpose of a stay is to preserve the status quo pending appellate
determination." Mainstream Marketing Services, Inc. v. FTC, 284 F. Supp.2d
1266, 1268 (D. Cob. 2003), quoting McClendon v. City ofAlbuquerque, 79 F.3d
1014, 1020 (10th Cir. 1996). In Nken, supra, the Supreme Court explained that, in
addition to protecting the parties’ rights, a stay pending appeal "allows an appellate
court to act responsibly."
A reviewing court must bring considered judgment to
bear on the matter before it, but that cannot always be
done quickly enough to afford relief to the party
aggrieved by the order under review. The choice for a
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reviewing court should not be between justice on the fly
or participation in what may be an "idle ceremony." The
ability to grant interim relief is accordingly not simply
"an historic procedure for preserving rights during the
pendency of an appeal," but also a means of ensuring that
appellate courts can responsibly fulfill their role in the
judicial process.
556 U.S. at 427 (citations omitted).
The grant of a stay pending appeal is discretionary.
Middle Rio Grande
Conservancy Dist. v. Norton, 294 F.3d 1220, 1231 (10th Cir. 2002). But "[t]he
fact that the issuance of a stay [pending appeal] is left to the court’s discretion does
not mean that no legal standard governs that discretion.... ’[A] motion to [a
court’s] discretion is a motion, not to its inclination, but to its judgment; and its
judgment is to be guided by sound legal principles."
Nken, supra, 556 U.S. at
434, quoting United States v. Burr, 25 F. Cas. 30, 35 (CC Va. 1807) (Marshall,
C.J.).
"The propriety of [a stay pending appeal] is dependent upon the
circumstances of each case." Nken, 556 U.S. at 433, quoting Virginian R. Co. v.
United States, 272 U.S. 658, 672 (1926). This "require[s] individualized
consideration and assessment." McClendon, supra, 79 F.3d at 1020. The Court’s
discretion in deciding whether to stay an injunction pending an appeal is guided by
"consideration of four factors":
(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether the
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applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where
the public interest lies.
Nken, supra, 556 U.S. at 434, quoting Hilton v. Braunskill, 481 U.S. 770, 776
(1987). See also Mainstream Marketing Services, supra, 284 F. Supp.2d at 1268
(same).
The first two factors "are the most crucial."
Nken, supra, 556 U.S. at 566.
In the Tenth Circuit, courts have addressed the first factor -- the likelihood of
success on the merits -- after the other three factors because they determine the
way that the first factor is applied. "If defendants can meet the other [three]
requirements for a stay pending appeal, they will be deemed to have satisfied the
likelihood of success on appeal element if they show ’questions going to the merits
so serious, substantial, difficult, and doubtful, as to make the issues ripe for
litigation and deserving of more deliberate investigation;" defendants are not
required to show that success on the merits is "probable" in these circumstances.
McClendon, supra, 79 F.3d at 1020, quoting Walmer v. United States Dept. of
Defense, 52 F.3d 851, 854 (10th Cir. 1994), certiorari denied, 516 U.S. 974
(1995). See also Precision Concrete Cutting, Inc. v. Concrete Sidewalk Solutions,
Inc., No. 1 1-cv-01 123, 2012 U.S. Dist. Lexis 25838, at *11 (D. Cob. 2012) ("[i]f
the moving party establishes that the three ’harm’ factors weigh decidedly in its
favor, the ’likelihood of success’ requirement is somewhat relaxed").
B.
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A stay pending appeal is appropriate in this case
Analysis of the four Nken factors in the circumstances of this case
demonstrates that a stay of injunctive relief pending appeal is appropriate. As set
forth below, the three "harm" factors -- i.e., whether Abercrombie will suffer
irreparable injury absent a stay, whether a stay will substantially injure Appellees,
and whether a stay is in the public interest -- tip decidedly in Abercrombie’s favor,
and the legal issues before this Court on appeal are sufficiently serious and
uncertain to satisfy the first factor.
1.
Abercrombie will sustain irreparable harm if a stay is not
entered by this Court
In deciding whether to enter a stay of an injunction pending appeal, the
second Nken factor considers "whether the applicant will be irreparably injured
absent a stay." Hilton, supra, 481 U.S. at 776. An injury constitutes irreparable
harm if it is "both certain and great." Prairie Band of Potawatomi Indians v.
Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001). "In evaluating irreparable injury,
courts normally look to the harm alleged by the movant, then assess the
substantiality of the claimed injury, the likelihood of its occurrence, and the
sufficiency of the proof." Tri-State Truck Insurance v. First National Bank of
Wamego, No. 09-4158, 2011 U.S. Dist. Lexis 111927, at *6 (D. Kan. 2011). A
"speculative and remote injury" that "might" occur is not sufficient.
Malone v.
Mukasey, No. 08-cv-0 1795, 2009 U.S. Dist. Lexis 116771, at *3 (D. Cob. 2009).
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In this case, Abercrombie demonstrated that it will suffer an injury in the
absence of a stay that is both certain and great. The District Court’s permanent
injunction requires Abercrombie to reconstruct the entrances of 231 Hollister
stores at an estimated cost of $8 million to $9 million. (Bondy Declaration, ECF
No. 204-1, at ¶ 3; attached as Exhibit A.) The injunction imposes strict deadlines;
Abercrombie must remodel not less than 77 stores during the next year, and at least
77 more stores in each of the following years, so that all store entrances are
reconstructed by no later than January 1, 2017, with one possible six-month
extension. (Permanent Injunction, ECF No. 211, at 4.) Business activities at
Hollister stores will be disrupted while these entrances are torn out and
reconstructed, resulting in lost sales and lost customer goodwill. This expense is
irreparable and cannot be recovered after Abercrombie prevails on appeal and
returns the store entrances to their present form. In short, these harms are
substantial and irreparable, and they cannot be avoided unless the injunction is
stayed.
The District Court acknowledged that Abercrombie will have to spend
millions of dollars to comply with its injunction, and that normal business
operations at the stores will necessarily be disrupted during the construction work.
(Order, ECF No. 233, at 3-4.) However, it concluded that this does not constitute
irreparable harm because: (1) the injunction "only requires that 77 store entrances
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be remodeled each year;" (2) the injunction will "not commence until after the
2013 holiday retail season;" and (3) the $8 million to $9 million of construction
costs is "relatively minor" compared to Abercrombie’s 2012 net income of $237
million. (Id.)
The District Court thus improperly assumed that tearing the entrances out of
"only" 77 stores each year for three years will not significantly disrupt business,
even though it delayed the commencement of the injunction until January, 2014,
that business would not be disrupted by construction work this holiday season. In
any event, $8 million to $9 million remains a very large sum of money, and
indisputably qualifies as an injury, even when compared to the net income of the
entire company. Abercrombie has demonstrated substantial harm that is
indisputably irreparable, and this factor supports a stay pending appeal.
2.
Appellees will not sustain any substantial injury if this
Court enters a stay pending appeal
The next factor that the Court must consider is "whether issuance of the stay
will substantially injure the other parties."
Nken, supra, 556 U.S. at 434. In this
case, Appellees will incur no financial costs of any kind if a stay is issued pending
appeal. See Mainstream Marketing Services, supra, 284 F. Supp.2d at 1269
(denying a stay because it would cause "substantial economic injury" to the
plaintiffs). The status quo will be maintained in every respect, and there will still
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be two automatic entry doors at the front of each store that are fully accessible to
people who use wheelchairs.
The District Court concluded that a stay pending appeal would cause
Appellees substantial harm, consisting of "the dignity harm" of entering a Hollister
store with an elevated entry door through one of its level entry doors. (Order, ECF
No. 233, at 4.) But Appellees themselves testified at their depositions that they
have no interest in shopping at Hollister stores and, thus, will not sustain that
injury. See, e.g., Hansen Dep., at 25, 27-29, 31, 34-35, 97-98, 104-105 (attached
as Exhibit B); Farrar Dep., at 22-24, 32-34, 46-48, 50, 53-55, 78 (attached as
Exhibit Q. They claim to be ADA "testers" for Appellee CCDC, but they have no
reason to conduct their testing at Hollister stores while this appeal is pending.
In this case, there is no indication "that any real prejudice, other than delay
itself, will occur if a stay is granted," and mere delay "fails to show substantial
harm." Tri-State Truck Ins., supra, 2011 U.S. Dist. Lexis 111927, at *8. By
definition, a stay pending appeal results in a delay until the appeal is resolved, but
no stay could ever be entered if this was enough to demonstrate substantial harm.
Sierra Club, supra, 2003 U.S. Dist. Lexis 28217, at *15.
Here, a stay pending appeal will simply preserve the status quo until the
important and novel legal issues presented by this appeal are considered and
decided by the Court. If Appellees and the unidentified class members ever decide
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that they want to shop at Hollister stores, they will continue to have access through
the two level, fully automatic entry doors that are adjacent to the elevated entry
door at the front entrances of the stores. Accordingly, this factor also tips in favor
of staying injunctive relief pending appeal.
3.
The public interest favors a stay pending appeal in the
circumstances of this case
The Court must also consider "where the public interest lies" in deciding
whether to grant a stay pending appeal. Hilton, supra, 481 U.S. at 776. "The
public interest inquiry primarily addresses the impact on non-parties rather than
parties." Sammartano v. First Judicial District Court, 303 F.3d 959, 974 (9th Cir.
2002). In the present case, there are two competing public interests at issue.
First, the public obviously has an interest in the proper enforcement of ADA
requirements. However, this begs the question of what the ADA legally requires in
this case. The District Court found with respect to this factor that "the public
would be best served with companies complying with ADA requirements." (ECF
No. 233, supra, at 5.) But if this Court ultimately concludes in this appeal that the
entrances of the Hollister stores comply with ADA requirements, the public
interest will not be adversely affected by a stay. Accordingly, it is impossible to
predict in advance whether the public interest is served in this case by granting a
stay or by denying a stay.
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Second, the public also has an obvious interest in avoiding an unnecessary
waste of economic resources. If a stay is not entered during this appeal,
Abercrombie must spend $8 million to $9 million to remove the elevated entry
doors and construct new entrances at 231 stores, and that money will be wasted if
it prevails in this appeal. If a stay is entered, this colossal expense will be
minimized regardless of whether appellees or Abercrombie ultimately prevail.
Accordingly, this factor also favors granting Abercrombie’s motion for a
stay pending appeal.
4.
Likelihood of success on merits
As noted above, the first Nken factor -- the likelihood of success on the
merits of the appeal -- is considered last because the other three factors affect the
way that it is applied. "[W]here the moving party has established that the three
’harm’ factors tip decidedly in its favor, the ’probability of success’ requirement is
somewhat relaxed. . . [and] is demonstrated when the petitioner seeking the stay has
raised ’questions going to the merits so serious, substantial, difficult, and doubtful
as to make the issue ripe for [appellate] litigation and deserving of more deliberate
investigation." FTC v. Mainstream Marketing Services, Inc., 345 F.3d 850, 85253 (10th Cir. 2003), quoting Prairie Band, supra, 253 F.3d at 1246-47. See also
McClendon, supra, 79 F.3d at 1020 (same; "[t]he purpose of a stay is to preserve
the status quo pending appeal" when "a serious legal question" is presented);
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Desktop Images, supra, 930 F. Supp. at 1452 (courts may properly stay orders
pending appeals of "an admittedly difficult legal question ... when the equities of
the case suggest that the status quo should be preserved," even if it is not
"probable" that the judgment below will be reversed on appeal).
For example, the Court granted a stay pending appeal in Center for Intern.
Environ. Law v. Office of US. Trade Representative, 240 F. Supp.2d 21, 22
(D.D.C. 2003), even though it "did not agree with defendants’ position on the
merits," because they had made out a "substantial case" as to "an issue of first
impression." The fact that an appeal is "centered on a novel and admittedly
difficult legal question weighs in favor of a stay."
Id. See also Prairie Band,
supra, 253 F.3d at 1239, where this Court noted that it properly granted a stay of
an injunction pending appeal even though it had ultimately affimied the injunction.
The summary judgment order in the present case was based on the District
Court’s rulings on several important legal questions of first impression. For
example, no other federal court has addressed whether adjacent entry doors located
at the front of a building collectively constitute a single "entrance" and therefore
comply with the recently revised ADA Standards. Second, Abercrombie’s appeal
also presents the still-unanswered question of whether plaintiffs and class members
have a prospective injury-in-fact, and thus have standing to obtain injunctive relief
against a store in the absence of any evidence that they have ever been to that store,
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or that they have any intention of patronizing that store in the future. Third, this
appeal raises the fundamental question of whether federal courts should balance
the respective benefits and harms to the parties in deciding whether to grant
injunctive relief under the ADA.
These unsettled legal questions are "serious, substantial, difficult, and
doubtful" and are therefore deserving of appellate consideration before
Abercrombie is required to disrupt its business activities and spend millions of
dollars for renovations that this Court may find unnecessary. Accordingly, this
factor also favors entering a stay pending appeal.
C.
A stay pending appeal should preserve the time period that the
injunction allows for full compliance
Abercrombie’s counsel met with Appellees’ counsel and attempted to reach
agreement on a stay of the District Court’s injunction pending appeal. However,
Appellees insisted that the final deadline imposed by the injunction for
reconstructing the entrances of all of the 231 stores -- January 1, 2017 -- must
remain in place. This would not preserve the 3-year time period that the District
Court found reasonable for full compliance with the injunction. Abercrombie
would have to complete all the reconstruction work in whatever time remained
between the decision of this Court on appeal and January 1, 2017, if the Court
affirms the judgment.
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This would defeat the purpose of a stay pending appeal. Abercrombie would
not be able to meet the January 1, 2017, deadline for full compliance with the
terms of the injunction unless this Court could rule on the difficult and unsettled
legal issues in the appeal almost immediately. The purpose of the stay would be
thwarted if the deadline for full compliance was not extended; Abercrombie would
still have to begin reconstruction of the store entrances before this Court rules on
the merits in order to meet the deadline and would therefore sustain the irreparable
harm described above. Instead, the stay should operate as a true stay and postpone
the deadlines established by the injunction for the amount of time that elapses
during this appeal, so that Abercrombie will ultimately have the same time period
for full compliance that the injunction now allows, but measured from the date of
this Court’s ruling on appeal rather than from the date of the District Court’s
judgment.
III. Conclusion
For the reasons set forth above, Abercrombie respectfully moves the Court
to stay the permanent injunction that the District Court entered in this matter,
pending appeal, and to preserve the time period that the injunction allows for
completing all reconstruction of the Hollister stores.
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Respectfully submitted,
s/ Mark A. Knueve
Mark A. Knueve
Michael J. Ball
VORYS, SATER, SEYMOUR AND
PEASE LLP
52 E. Gay Street
P.O. Box 1008
Tel: (614) 464-6387
Fax: (614) 719-4808
maknueve@vorys . corn
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Document: 01019163007
OF COUNSEL:
HOLLAND & HART LLP
555 Seventeenth Street, Suite 3200
Post Office Box 8749
Denver, CO 80201-8749
Tel: (303) 295-8749
Fax: (303) 975-5464
geurich(ho11andhart. corn
Counsel for Defendants
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CERTIFICATE OF SERVICE
I hereby certify that on November 25, 2013, I have caused to be
electronically filed the foregoing with the Clerk of Courts using CM/ECF system
which will send notification of such filing to the following e-mail addresses:
Kevin W. Williams
Andrew C. Montoya
E-mail: kwilliams@ccdconline.org
E-mail: amontoya@ccdconline.org
Amy F. Robertson
E-mail: arobertson@creeclaw.org
Bill Lann Lee
E-mail: blee(Zlewisfeinberg.com
Julia Campins
E-mail: jcampins@cbbllp.com
/s/ Mark A. Knueve
Mark A. Knueve
OF VORYS, SATER, SEYMOUR &
PEASE LLP
52 E. Gay Street
Phone: (614) 464-6400
Fax: (614) 464-6350
maknueve@vorys.com
t1
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5.2013 18055744
Case 1:09-cv-02757-WYD-KMT
Document
204-1 Filed 05/17/13
USDC
Colorado Page
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Appellate
Case: 13-1377 Document:
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 09-cv-02757-WYD-KMT
COLORADO CROSS-DISABILITY COALITION, et at.,
Plaintiffs,
V.
ABERCROMBIE & FITCH STORES, INC., et al.,
Defendants.
DECLARATION OF MICHAEL BONDY
1.
I am employed by Abercrombie & Fitch Stores, Inc. ("Abercrombie") as Senior
Project Manager in the Store Construction Department. My job duties include overseeing special
projects relating to stores, including retrofits, remodels, and other projects. I make this
Declaration from my own personal knowledge and, if called as a witness, could and would
competently testify to the following matters.
2.
I have been provided with a copy of the [Proposed] Permanent Injunction filed by
the Plaintiffs in this case, and I have reviewed it. As I understand the [Proposed] Permanent
Injunction, it proposes that the Company be required to take one of three actions, to be
completed by December 31, 2015. I address each of those proposals herein.
3.
First, the [Proposed] Permanent Injunction proposes that the Company remove the
steps at the porch-like structure of all Hollister stores throughout the United States. I and others
at the Company have investigated this proposal. There are currently approximately 231 Hollister
stores with steps at the porch-like structure. Removal of the steps at all 231 Hollister stores
throughout the United States would cost the Company an estimated $8 million to $9 million.
Furthermore, based upon our investigation, to perform the work at each store, we would need to
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close the entry door at the porch-like structure of the store an estimated 7-10 days while the work
is being performed at the store. This would obviously cause disruption at the store, lost customer
traffic, and lost sales. We have not been able to quantify the expected loss in sales with
specificity.
4.
Second, the [Proposed] Permanent Injunction proposes that the Company provide
ramps at the porch-like structure of all Hollister stores throughout the United States. I and others
at the Company have investigated this proposal. We have determined that it is not physically
possible to put ramps at the porch-like structures in a safe manner which would be consistent
with the 2010 ADA Guidelines. This is because the Guidelines require that any ramp extend 12
inches for each one inch of drop. This would cause the ramps to extend too far into the store to
provide safe passage, and would be negative to the Hollister brand.
5.
Third, the [Proposed] Permanent Injunction proposes that the Company
permanently close off to all customers the entry door at the porch-like structure of all bluster
stores throughout the United States. I and others at the Company have investigated this proposal.
We have determined that this is the worst, and least acceptable, of the three options provided in
the [Proposed] Permanent Injunction. Closing off the entry door at the porch-like structure to all
customers would be extremely detrimental to the Company’s carefully crafted branding efforts.
It would be confusing to customers, and contrary to the intended store design, which is that the
store have three entry doors, two of which are accessible. Closing off the entry door to all
customers would cause permanent damage to the Hollister brand and an immense and
unquantifiable loss in sales and revenue.
Document
204-1 Piled 05/17/13
USD0
Colorado Page
3 of24
3
Appellate
01019163007
Date Filed:
11/25/2013
Page:
I was part of the team that coordinated placement of door handles, and a "Bettys"
sign and a "Dudes" sign at the accessible entry doors of the Park Meadows Hollister store in
Denver, Colorado. The Company has estimated that making similar changes at all Hollister
stores with steps across the United States would cost less than $300,000.
1 declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed on May
, 2013, in New Albany, Ohio,
Michael Bondy
Document
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Anita Hansen
I
1
2
COPY
3
Civil Action No.: 09-cv-02757--WYD-KMT
4
COLORADO CROSS-DISABILITY COALITION, et al.,
Plaintiffs,
5
6
VS.
7
8
Defendants.
9
DEPOSITION OF ANITA L. HANSEN
10
11
PURSUANT TO NOTICE, the
12
13
above-entitled deposition was taken on behalf of
14
the Defendants at the offices of Holland & Hart,
15
LLP, 555 Seventeenth Street, Suite 3200, Denver,
16
Colorado, on November 9, 2011, at 8:56 a.m., before
17
Jana Mackeiprang, Certified Realtime Reporter,
18
Registered Professional Reporter, and Notary
19
Public.
20
21
22
23
24
25
Calderwood-Mackeiprang, Inc. 303.477.3500
Document
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26
77
Anita Hansen
25
1
2
Have you encountered barriers to
accessibility at Macy’s, when you visit there?
3
A.
No, I haven’t.
4
Q.
How about Dillard’s?
5
A.
No.
6
Q.
Have you encountered any barriers to
7
accessibility at the Southwest Plaza Mall?
8
A.
No.
9
Q.
When was the first time that you even
10
11
12
knew that there was a store called Hollister?
A.
I had seen the store at Park Meadows,
but never went in. I didn’t have an interest in it.
13
Q.
Why didn’t you have an interest in it?
14
A.
Just from the front of the store and
15
16
I
Q.
seeing the kind of clothes.
Q.
Is it fair to say that the kind of
17
clothes that Hollister sells are not the kind of
18
clothes that you wear?
19
A.
Correct.
20
Q.
Is it fair to say that the kind of
21
clothes that Hollister sells are not the kind of
22
clothes that Erika would wear, your daughter?
23
A.
No, they would be.
24
Q.
Okay. Is it fair to say that you
25
first saw a Hollister store at the Park Meadows
Calderwood-Mackelprang, Inc. 303.477.3500
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Anita Hansen
27
1
A.
Cherry Creek.
2
Q.
In some of the documents, you have
3
described a visit that you made to a Hollister store
4
in the Park Meadows Mall. Was that the first visit
5
you’d ever made to a Hollister store?
A.
6
7
No. The first visit was to the one at
Orchard.
8
Q.
I apologize. The first Hollister
9 Istore that you ever visited was at Orchard Town
10
Center?
11
A.
Correct.
12
Q.
And when was that?
13
A.
I’m not sure of the date, but I’m
14
thinking the summer of ’09.
15
And is that visit, to the best of your
16
knowledge, documented in the complaint in this
17
action?
18
A.
I believe it is.
19
Q.
Why did you go to the Hollister store
20
21
I
Q.
at Orchard Town Center?
A.
Well, other than the fact it was a new
22
outdoor mall and those were kind of new, I knew that
23
there was a Hollister store that I planned to go in
24 because of my caregiver having mentioned it.
25
Q.
Is that Elizabeth Parsons?
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Anita Hansen
28
1
A.
Correct.
2
Q.
What did Elizabeth Parsons say about
3
4
Hollister?
A.
I’m not sure how -- I’m not sure if it
5
was Elizabeth first or someone at CCDC that
6
mentioned it.
7
Q.
Well, you just said that you planned
8
to go to Orchard Town Center because your caregiver
9
mentioned it. What I’d like to know is what your
10
11
12
13
caregiver mentioned.
A.
She mentioned something about
accessibility issues.
Q.
And so you went to the FloJjister at
14
Orchard Town Center for the express reason of seeing
15
the accessibility issues for yourself?
16
17
18
19
A.
and visiting some of the other stores.
Q.
22
23
24
25
Were there other stores that you were
specific -- that’s terrible.
Were there other stores that you were
20
21
Correct, and visiting -- excuse me --
specifically interested in visiting?
A.
None in particular. Just to see what
kind of stores that were there and to have lunch.
Q.
It was a new mall, and you wanted to
see what was going on?
Calcierwood-Mackeiprang, Inc. 303.477.3500
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Anita Hansen
29
1
A.
Yes.
2
Q.
But the reason that you visited
3
Hollister was for the express reason of testing the
4
accessibility?
5
A.
6
daughter.
7
Q.
Yes, and to make a purchase for my
Would you have gone to Hollister to
8
make a purchase if you were not -- if you hadn’t
9
heard about the accessibility issues?
10
A.
Maybe not.
11
Q.
Have you ever been on Hollister’s
12
website?
13
A.
No, I haven’t.
14
Q.
Have you ever made a purchase from
15
16
Hollister before?
Just that day. Also, I have a young
A.
17
lady who works for me, and she wears Hollister
18
clothes quite often.
19
Q.
What’s her name?
20
A.
Mallory Snyder.
21
Q.
What does she do for you?
22
A.
Just comes over and helps me clean my
23
24
25
office and do laundry.
You mentioned an office. Do you have
Q.
la home office?
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H:
Anita Hansen
3]
1
MR. WILLIAMS: Object to the form.
2
You can answer that.
3
THE DEPONENT: The question again,
4
please.
5
Q.
(By Mr. Knueve) Let me
ask it a
6
different way. Prior to visiting the Hollister at
7
Orchard Town Center, were you aware that CCDC was
8
investigating Hollister?
9
A.
Yes.
10
Q.
How were you aware of that?
11
A.
From Ms. Parsons or someone at CCDC.
12
Q.
And so that, again, was part of the
13
reason that you were visiting Hollister, to
14
participate in CCDC’s investigation?
15
A.
Yes.
16
Q.
Who went with you?
17
A.
Ms. Parsons and her daughter.
18
Q.
And what’s Ms. Parsons’ daughter’s
20
A.
Danielle.
21
Q.
And how old is she?
22
A.
She was five at the time.
23
Q.
Erika didn’t go with you?
24
A.
No.
25
Q.
Do you know,
19
name?
is Ms.
Parsons a member
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Anita Hansen
34
1
expected Park Meadows to be the same as Orchard Town
2
Center?
3
A.
No.
4
Q.
Had anybody told you that Park Meadows
5
would be the same as Orchard Town Center?
6
A.
No.
7
Q.
Unlike Orchard Town Center,
8
Meadows is an inside mall,
Park
correct?
9
A.
Yes.
10
Q.
Other than the Orchard Town Center
11
Hollister and the Park Meadows Hollister, have you
12
been to any other Hollister store?
13
A.
I haven’t been inside one, no.
14
Q.
I saw in the materials that you got
15
near one,
16
A.
Correct.
17
Q.
What were you doing in Beaumont?
18
A.
Visiting family.
19
Q.
Who were you visiting?
20
A.
My family, my parents, my sister.
21
Q.
And you went shopping when you were
22
I guess,
in Beaumont,
Texas.
down there visiting?
23
A.
Yes.
24
Q.
And while you were shopping,
25
Hollister store?
you saw a
Calderwood- Macke iprang, Inc. 303.477.3500
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Anita Hansen
35
1
A.
From a distance, yes.
2
Q.
How close did you get to it?
3
A.
Several stores down, I could see the
Q.
Before you saw the sign, you had no
4
sign.
5
6
intention of shopping at Hollister?
7
A.
Not that day.
8
Q.
Now, the materials that I have suggest
9
10
that there are no steps at the Beaumont, Texas,
Hollister.
11
A.
Right.
12
Q.
You didn’t see any steps?
13
A.
No.
14
Q.
So you got close enough to the
15
Hollister store at Beaumont, Texas, to notice that
16
there were no steps at the front?
17
A.
I didn’t see steps, no.
18
Q.
So to the extent that you didn’t go
19
into the Beaumont, Texas, Hollister, it didn’t have
20
anything to do with the steps at the front of the
21
store?
22
23
24
25
A.
No. We were in a hurry and just
didn’t take the time.
Q.
You had other stores to visit, and you
don’t particularly like Hollister anyway; is that
Calderwood-Mackelprang, Inc. 303.477.3500
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Anita Hansen
97
1
2
3
Q.
Have you ever entered a building that
has a revolving door?
A.
I know that my wheelchair wouldn’t go
4
through them, but I can’t recall -- I can’t recall-
5
going to a building that had one.
6
Q.
You don’t recall ever entering a
7
building that has a revolving door through an
8
accessible door?
9
A.
Right.
10
Q.
With respect to your intention to
11
return to Hollister stores, is it your testimony
12
that you have no intention of returning to Hollister
13
stores unless the steps are removed?
MR. WILLIAMS: Object to form and
14
15
we’ve been over it.
16
Go ahead.
17
THE DEPONENT: That would depend. If
18
I had a need. If my grandsons wanted to go in
19
there, and if there were still steps there, I would
20
have to use the accessible door.
21
Q.
(By Mr. Knueve) Do you have any
22
current intention to return to a Hollister store for
23
any reason?
MR. WILLIAMS: Object to form, but you
24
25
can answer it.
Document
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Anita Hansen
98
1
THE DEPONENT: Not today.
2
(Exhibit 9 was marked for
3
identification.)
4
Q.
(By Mr. Knueve) Ms. Hansen, you have
5
Exhibit 9 there in front of you. My only question
6
is: There’s a name there on the first page, Artie
7
Lashbrook. Do you know Mr. Lashbrook?
don’t.
8
A.
No, I
9
Q.
To your knowledge, have you ever
10
spoken with him?
II
A.
No, I
12
Q.
To your knowledge, have you ever
13
haven’t.
corresponded with him?
14
A.
No.
15
Q.
When you went to the Park Meadows
16
Hollister, was there an employee standing on the
17
porch-like structure?
18
A.
I don’t believe so.
19
Q.
When you went to the Orchard Town
20
Center Hollister, do you recall, was there an
21
employee standing on the porch-like structure?
22
A.
No.
23
Q.
No, you don’t recall, or, no, there
24
25
was not?
A.
No, I don’t believe there was.
C&derwood-Mackelprang, Inc. 303.477.3500
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Anita Hansen
104
1
behalf?
2
A.
Yes.
3
Q.
And so you made no effort to
4
communicate with Hollister directly?
5
A.
No.
6
Q.
No, you made no effort?
7
A.
Correct.
8
Q.
Thank you. I think this is clear from
9
your testimony, but I want to make sure. ’I take it
10
that there isn’t any Hollister store that you wanted
11
to visit but were deterred from visiting because of
12
your experiences?
13
MR. WILLIAMS: Object to form.
14
THE DEPONENT: I guess I didn’t have
15
the desire as of late, but I think I stated earlier
16
that I’ve got this young lady that, when her
17
birthday comes around, I might want to buy a gift
18
card, but there’s no immediate need or desire to go.
19
Q.
(By Mr. Knueve) But between your
20
visits in July of 2009 and now, there’s not been an
21
occasion when you’ve wanted to go to a Hollister
22
store and were deterred?
23
24
Go ahead.
25
THE DEPONENT: Other than it’s not a
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Anita Hansen
105
1
real quick in-and-out store, yeah. I mean, I could
2
have gone in, I suppose, but I can find similar
3 merchandise other places.
4
Q.
(By Mr. Knueve) But there was never
5
an occasion when you thought, "Man, I really want to
6
go shop at Hollister today," but were deterred?
7
8
Go ahead.
9
THE DEPONENT: Not that I can think
10
of, no.
(Exhibit 12 was marked for
11
12
identification.)
13
Q.
14
(By Mr. Knueve) Ms. Hansen, you have
Exhibit 12 in front of you. I’ll represent to you
15 that this was a document produced by your counsel,
16
stamped P93. And I’ll also - represent to you that
17
your counsel has represented that this is a
18
photograph of the entrance of a Hollister store.
19 Have you ever seen an entrance of a Hollister store
Li
20
21
22
23
that looks like this one?
A.
I like this one. Possibly the one in
Parkdale Mall in Beaumont.
Q.
Were you aware that there are
24
Hollister stores in Colorado that have an entrance
25
that looks like this one?
Document
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Anita Hansen
112
CERTIFICATE
1
2
STATE OF COLORADO
3
CITY AND COUNTY OF DENVER
4
I, Jana Mackeiprang, Certified Realtime
Reporter, Registered Professional Reporter, and
Notary Public for the State of Colorado, do hereby
certify that previous to the commencement of the
examination, the said ANITA L. HANSEN was duly sworn
by me to testify the truth in relation to the
matters in controversy between the said parties.
I further certify that said deposition
was taken in shorthand by me and was reduced to
typewritten form by computer-aided transcription,
that the foregoing is a true transcript of the
questions asked, testimony given, and proceedings
had.
I further certify that I am not an
attorney nor counsel nor in any way connected with
any attorney or counsel for any of the parties to
said action or otherwise interested in its event.
IN WITNESS WHEREOF, I hereunto affix my
hand and notarial seal this 18th day of November,
2011. My commission expires January 24, 2012.
)ss.
5
6
U
LI
7
8
9
11Li
10
13
14
15
16
L.
17
Jana Mackeiprang
CRR, RPR, Notary Public
Calderwood-Mackeiprang, Inc.
18
U
Li
19
20
21
22
23
24
25
Document
155-1 Filed 12/23/11
USDC
Colorado Page
3338
of
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01019163007
Date Filed:
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Page:
77
Julie Farrar
I
1
2
co
3
Civil Action No.: 09-cv-02757-WYD-KMT
4
COLORADO CROSS-DISABILITY COALITION, et al.,
I
Plaintiffs,
5
6
VS.
7
8
Defendants.
9
DEPOSITION OF JULIE FARRAR
10
11
PURSUANT TO NOTICE, the
12
13
above-entitled deposition was taken on behalf of
14
the Defendants at the offices of Holland & Hart,
15
LLP, 555 Seventeenth Street, Suite 3200, Denver,
16
Colorado, on November 9, 2011, at 1:03 p.m., before
17
Jana Mackelprang, Certified Realtime Reporter,
18
Registered Professional Reporter, and Notary
19
Public.
20
21
22
23
24
25
Document: 01019163007
Page: 39
Page 22
1
at CCDC.
2
3
Q.
Have you ever had any kind of role at
A.
I did some contract work with them,
CCDC?
4
5 getting statements from people around K-Mart.
6
Q.
When was that?
7
A.
I think that was probably, I’m going
8
to say, sometime between 2000 and 2002, maybe. I’m
9
thinking of the ages of my children at the time.
10
That’s the only way that I can -- I’m old.
11
12
Q.
Don’t say you’re old because you and I
are almost the same age.
13
A.
I’m wise and forgetful.
14
Q.
You
16
A.
Yes.
17
Q.
What was your pay?
18
A.
I have -- I do not recall.
19
Q.
Were you paid by the hour? Were you
said contract work. Was that paid
15 work?
20 paid by the statement?
21
22
23
A.
I’m trying to remember, but I think I
was paid by the interview, basically.
Q.
In other words, for each interview of
24 a witness, you got some kind of sum?
25
A.
I think so. I’m not positive about
I
Document: 01019163007
Page: 40
Page 23
1
that, but I think so.
2
3
Q.
What was the purpose of the
interviews?
4
A.
It was to take information from people
5 who had shopped at K-Mart and had had obstacles, I
6 guess, basically, in their shopping experience.
MR. WILLIAMS: I apologize. I might
7
8 need to confer with her for just a second.
9
MR. KNTJEVE: Sure.
10
(A recess was taken.)
11
MR. WILLIAMS:
It was my neglect in
12 not realizing CCDC was co-counsel on the K-Mart case
13 with Fox & Robertson. Fox & Robertson retained some
14 folks to do some interviews in connection with that
15
litigation. I have to instruct her not to answer on
16
the substance. I’m sorry for not catching that
17
sooner.
18
MR. KNUEVE: That’s okay.
19
Can you read back the last question.
20
(Whereupon, the following record was
21 read back by the court reporter: "What was the
22 purpose of the interviews?")
23
MR. KNUEVE: I’ll withdraw that
24
question.
25
Q.
(By Mr. Knueve) Did you report to
I
Document: 01019163007
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Page 24
1 anybody at CCDC when you were doing that work?
2
3
A.
I reported to someone named Michael
Breeskin. But I don’t know -- never mind.
4
Q.
Have you held any other positions with
6
A.
No.
7
Q.
Have you performed any other contract
5
CCDC?
8 work for CCDC?
9
A.
No, not that I recall.
10
Q.
Have you conducted any investigations
11 on behalf of CCDC?
12
A.
No -- oh, I need to say that I -- do I
13 amend my answer? I don’t know how to say it
14 properly, but I just realized that I did work for
15
CCDC doing accessibility surveys for the Pepsi
16
Center. So I take that back. So I have -- so, yes,
17
I actually have done other work for
18
in a leadership capacity. It was just taking
CCDC.
It wasn’t
19 accessibility surveys -- or customer satisfaction
20
21
22
23
24
surveys is what they were.
Q.
Forgive me for my ignorance, but what
is the Pepsi Center?
A.
The Pepsi Center is -- it’s one of the
sports arenas. It’s where the Avalanche and the
25 Mammoth, which is the lacrosse team, and the Nuggets
I
Document: 01019163007
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Page 32
1 Nursing Home Lobbying Association. They lobby for
2
funding for nursing homes, which, in the state of
3
Colorado, it costs $90,000 a year of taxpayers’
4 money to keep somebody in a nursing home. It costs
5 about a third of that for someone to live
6 independently in the community with support, but
7 it’s all about the lobbying and who has the money.
8 So the focus changed as far as what we were trying
9
to change.
Does that answer your question at all?
10
11
12
13
Q.
Yeah, it does. So what were you
getting arrested for?
A.
So the charges were usually
14 trespassing or unlawful assembly or parade without a
15 permit -- it was pretty run of the mill.
16
Q.
Were you ever charged with -- you were
17 never charged with any violent crime?
18
A.
No.
19
Q.
I think you’ve testified that you
20 started paying dues to CCDC about three years ago?
21
A.
Yes.
22
Q.
And you testified that you donate more
23 than the dues requirement?
24
A.
Yes.
25
Q.
How much have you donated in the past
I
Document: 01019163007
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Page 33 I
1
2
A.
Well, I’m not sure exactly how much,
3 but I ran for city council, and I had to dissolve my
campaign fund. And so I divided the money up, and I
5 gave half of it to CCDC, and I gave half of it to
6
the Center for Progressive Leadership. So it wasn’t
7 my money, but it was money that was given out of my
8 campaign contributions.
9
Q.
What’s the Center for Progressive
10 Leadership?
11
12
A.
It’s a training program for people who
are leaders, community activists, leaders in the
13 community, or who wish to become leaders in their
14
community. And it’s just a wide variety of issues
15 and all different kinds of people from all over -16
it’s a nationwide program, but it was people from
17 all over Colorado that came together and went
18 through this training program.
19
Q.
And why did you have to dissolve your
20 campaign fund?
21
22
A.
Because I wasn’t going to run for
public office again and it’s the law.
23
Q.
This was postelection?
24
A.
Yes. I came in 14th out of 38
25
candidates, so I felt pretty good.
Document: 01019163007
Page: 44
Page 34 I
1
Q.
Congratulations.
2
A.
Thank you.
3
Q.
What year was that?
4
A.
This last year.
5
Q.
2010?
6
A.
Yes.
7
Q.
How much did you donate in 2009 to
9
A.
I don’t know.
10
Q.
More than $100?
11
A.
I don’t know.
12
Q.
How about in 2008?
13
A.
2008, it probably would have been part
8 CCDC?
14
of joining with SEIU. We joined at -- I don’t
15 know -- whatever that level was. I couldn’t explain
16
to you the tiers and all of that.
Do you know how much you personally
17
Q.
18
donated in 2008?
19
A.
I don’t.
20
Q.
When is the first year that you
21 personally donated to CCDC?
22
A.
It would be hard for me to tell
23 because it would have been, like, a fundraiser or
24
25
something like that. I’m not -- I do not recall.
Q.
Were you -- would it be fair to say
Document: 01019163007
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Page 46
1
Q.
What church do you attend?
2
A.
I attend a church called the Denver
3 Center for Spiritual Living, or it could be Center
4
for Spiritual Living Denver. I apologize.
5
Q.
I asked you where you live, and you
6 said 2925 Dexter Street. How long have you lived
7 there?
8
A.
Eighteen years.
9
Q.
What’s the closest shopping mall to
10 your -- is it a home?
11
A.
Yes.
12
Q.
What’s the closest shopping mall to
13 your home?
14
A.
Cherry Creek, and then they just
15 opened one in Northfield.
16
Q.
Have you ever been to -- I take it
17 you’ve been to Cherry Creek Mall?
18
A.
Uh-huh.
19
Q.
Yes?
20
A.
Yes.
21
Q.
How many times have you been to the
22 Cherry Creek Mall?
23
A.
Oh, a lot. Too many. I probably --
24 we probably go maybe once a month.
25
Q.
Have you been to the Northfield Mall?
I
Document: 01019163007
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Page 47
1
A.
Yes.
2
Q.
3
Northfield Mall?
4
A.
Probably once a month.
5
Q.
Have you ever been to the Park Meadows
7
A.
Yes.
8
Q.
6
9
Mall?
Park Meadows Mall?
10
A.
Less than six.
11
Q.
Have you ever been to the Flatiron
12
Crossing Mall?
13
A.
Yes.
14
Q.
How many times
15
A.
Maybe four.
16
Q.
Have you ever been to the Aurora Mall?
17
A.
Yes.
18
Q.
How many times
19
A.
I don’t go as much anymore.
20
have you been there?
have you been there?
Like ever
in my life?
21
Q.
Yes.
22
A.
When I was a kid, it was the only
24
Q.
How about since 2000?
25
A.
Since 2000, I’d say probably 15 times,
23
mall.
Document: 01019163007
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Page 48 I
1
maybe.
2
3
Q.
Have you ever been to the Citadel Mall
in Colorado Springs?
4
A.
I don’t think so.
5
Q.
Have you ever been to the Foothills
6
Mall in Fort Collins?
7
A.
I don’t think so.
8
Q.
Have you ever been to the Mesa Mall in
9
Grand Junction?
10
A.
No.
11
Q.
Have you ever been to the Orchard Town
12
Center Mall?
13
A.
Yes.
14
Q.
How many times have you been there?
15
A.
Like four to six times.
16
Q.
How far is the Cherry Creek Mall from
17
your house?
Maybe five miles.
18
A.
Not far enough.
19
Q.
Why do you say,
20
A.
Because I have kids.
"Not far enough"?
The good thing
21
about it is that it has an indoor playground.
22
it’s a cheap date on a snowy day for kids.
So
23
Q.
How about Northfield?
24
A.
Northfield is maybe two miles from our
25
house.
Not as cheap because it’s a pedestrian mall.
Document: 01019163007
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Page 50
1
I personally like the thrift stores. I like -- I’m
2
trying to think -- I like Charlotte Russe. My kids
3
shop at Forever 21,
4
I’m trying to think of the stores at the Aurora
5
Mall, but they all start to look the same.
Claire’s. I’m trying to think.
I can’t -- yeah, I think Macy’s --
6
7
Macy’s is probably the one that we frequent the
8
most.
9
10
11
Q.
Do any of your children have a
mobility disability?
A.
No. I do have -- no. I was going to
12
say, my middle child, the most capitalistic of us,
13
does have a chronic health condition that causes
14
pain, but it doesn’t really cause mobility -- it
15
sometimes limits her activities, but it doesn’t
16
cause an actual mobility impairment.
17
Q.
What’s the condition?
18
A.
It’s called fibromyalgia.
19
Q.
I take it Hollister is not one of the
20
21
stores that you frequent?
A.
Hollister is not one of the stores
22
that we frequent. It’s one of the stores that Lizzy
23
really likes. It’s a brand that Lizzy really likes.
24
And we have seen Hollister stores, but we have not
25
gone into a Hollister store.
I
Document: 01019163007
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1
like: Oh, yeah, we noticed that. We had noticed
2
that the Hollister store at Orchard, the Orchard
3
Town -- I don’t know the names of them very well,
4
but it was the one -- she had a physical therapy
5
appointment out there, and that’s why we were always
6
going to that mall, because her physical therapy
7
appointment was during rush hour. So it took
8
minutes to get to the appointment, and I wasn’t
9
going to drive back another
45
45 minutes. So we would
10
just hang out and walk around in the mall and do
11
things. And we had noticed the inaccessible
12
entrance.
13
Then when Krista was folding the
14
clothes and she saw the Hollister clothes, she
15
mentioned -- not the litigation, but that other
16
people had noticed it as well.
17
Q.
You said that you noticed the store at
18
Orchard Town Center when you were taking your
19
daughter to -- I’m sorry, where were you taking her
20
to?
21
A.
She was going to physical therapy.
22
Children’s Hospital has -- it’s part of her
23
fibromyalgia; she goes to physical therapy. And
24
they had a satellite clinic, the only place they had
25
openings forever and ever, but they had a satellite
I
Document: 01019163007
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Page 54
1
clinic. I don’t know which direction I’m pointing
2
as soon as I’m in a building, but it was up north,
3 Westminster or Northglenn, whatever that is. It was
4 right next to that mall. And so we would drive 45
5 minutes for a 45-minute appointment, and then we
6 could get back on the freeway and drive another 45
7 minutes, or we could fart around at the mall. And
8
if you’re a 12-year-old, you’re like: Hey, let’s do
9
that.
10
Q.
Or if you’re a 41-year-old, you might
11 want to do that.
A.
12
So we would go to the mall and walk
13 around. And that is when we noticed the Hollister
14
store. And she was all excited about the Hollister
15
store. But we also, to be quite honest, laughed a
16
little bit at the entrance to the Hollister store
17 because it was kind of ridiculous. And we didn’t go
18
in.
19
Q.
This was Lizzy?
20
A.
Uh-huh.
21
Q.
Yes?
22
A.
Yes.
23
Q.
And when was this?
24
A.
It would have been over the summer.
25
And I - -
I
Document: 01019163007
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Page 55
1
Q.
The summer of 2011?
2
A.
Yes.
3
Q.
And was that the first time that you
4 had noticed the entrance at a Hollister store?
A.
5
6
Yeah, that’s the first time we noticed
a Hollister store, period.
7
Q.
And you said it was ridiculous. You
8 believed it was ridiculous. Why did you believe it
9 was ridiculous?
10
A.
Well, we just looked at it and just --
11 they’re my kids -- that there were steps to get in.
12 We just thought that that was kind of silly. And we
13 did go by, but I didn’t -- I just thought it was
14 ridiculous that I couldn’t get into a new store.
Q.
Now did you make any attempt to get
17
A.
No.
18
Q.
And you didn’t look to see if there
15
16
in?
19 was an accessible entrance?
20
A.
No, I didn’t look very hard to see if
21 there was an accessible entrance, partially because
22 steps -- to me, that was the main entrance and an
23
entrance that -- to me, that’s a message. That
24 makes it more difficult for me to get in. I mean,
25 we actually kind of laughed about stairs to get in.
Document: 01019163007
Page: 52
Page 78 I
1
2
Q.
Now, take a look at 17, paragraph 17.
"I intend to and will shop at Defendants’ other
3 Hollister stores in the Denver metropolitan area and
4 elsewhere when I travel if Defendants remedy the
5
accessibility barriers similar to those I
6
encountered. "
Are you aware that there are Hollister
7
8 stores in the Denver metropolitan area that do not
9 have a porch-like structure?
10
A.
I am now, but I wasn’t aware of that.
11
Q.
Are you aware through counsel? Are
12 you aware through any means other than counsel?
13
A.
No.
14
Q.
Have you ever seen a Hollister store
15 without an elevated entrance?
16
A.
Not that I noticed. I think I would
17 have to look at the list of locations again to tell
18 you whether I’d been in a mall that had one that was
19
20
inaccessible.
Q.
We talked about Flatiron Crossing.
21 You’ve been there four times, you told me. There’s
22 a Hollister store there without an elevated
23 entrance. Have you ever seen that one?
24
A.
I did not notice it.
25
Q.
There’s the Hollister at Aurora Mall,
Document
155-1 Filed 12/23/11
USDC
Colorado Page
of
Appellate
01019163007
Date Filed:
11/25/2013
Page:5453
77
Julie Farrar
124
CERTIFICATE
1
2
STATE OF COLORADO
ss.
3
CITY AND COUNTY OF DENVER
4
I, Jana Mackeiprang, Certified Realtime
Reporter, Registered Professional Reporter, and
Notary Public for the State of Colorado, do hereby
certify that previous to the commencement of the
examination, the said JULIE FARRAR was duly sworn by
me to testify the truth in relation to the matters
in controversy between the said parties.
I further certify that said deposition
was taken in shorthand by me and was reduced to
typewritten form by computer-aided transcription,
that the foregoing is a true transcript of the
questions asked, testimony given, and proceedings
had.
I further certify that I am not an
attorney nor counsel nor in any way connected with
any attorney or counsel for any of the parties to
said action or otherwise interested in its event.
IN WITNESS WHEREOF, I hereunto affix my
hand and notarial seal this 18th day of November,
2011. My commission expires January 24, 2012.
5
6
7
8
9
10
11
12
13
14
15
16
17
Jana Mackelprang
CRR, RPR, Notary Public
Calderwood-Mackeiprang, Inc.
18
19
20
21
22
23
24
25
Calderwood-Mackelprarig, Inc. 303.477.3500

Appellants` Motion To Stay Injunctive Relief

Transcription

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