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Hollister's Motion to Stay ADA Remedies Pending Appeal Denied

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By Gabriella Khorasanee, JD on November 22, 2013 2:54 PM

Abercrombie & Fitch, and its company Hollister, just can't seem to stay out of court. While it vehemently pursues what it deems brand image, it continues to offend on the basis of religion and disability.

Hollister's ADA Violations

In 2009, Julie Farrar initiated an action against Hollister alleging that the steps leading to a "porch" in front of its stores violated the Americans with Disabilities Act ("ADA"). By 2012, the suit grew into a class action that targeted 248 stores, more than half of the 483 Hollister stores in the U.S., reports The Colorado Independent.

On March 7, 2013, Judge Wiley Daniel, for the United States District Court for the District of Colorado, granted plaintiffs' motion for summary judgment finding that 231 Hollister stores were in violation of the ADA. As a result, in August of this year, he entered a permanent injunction requiring Hollister to remedy its ADA violations and make the entrances to their stores wheelchair accessible.

Motion to Stay

On September 9, 2013, Abercrombie filed a notice of appeal to the Tenth Circuit, and on the same day, made a motion to stay the permanent injunction pending appeal.

Last week, Judge Daniel denied Abercrombie's motion to stay the injunction pending appeal to the Tenth Circuit. In applying the four-part test, he found that the permanent injunction was not resulting in Abercrombie's irreparable injury. He also noted that two of the factors -- substantial harm and public interest -- actually weighed against them. Since Abercrombie didn't present any new evidence to further its cause, the motion to stay was denied.

What Will the 10th Circuit Decide?

Whenever you think you know a court, you get a surprise in the form of an unexpected decision. In October, the Tenth Circuit ruled in favor of Abercrombie & Fitch in a hijab case that brought to light the interplay between Abercrombie's controversial Look Policy and free exercise rights under the First Amendment. Though far from indicating how the court will decide in the ADA case, it is important to note.

We hope that the Tenth Circuit has run out of surprises for this year, and will not rule in favor of Abercrombie this time around.

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