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

Defendants-Appellants Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc., and J.M. Hollister LLC, d/b/a Hollis-ter Co. (collectively, Abercrombie)1 appeal from several orders by the district court holding that Hollister clothing stores violate the Americans with Disabilities Act (ADA). First, Abercrombie challenges the district court’s holding that the Plaintiffs have Article III standing. See Colo. Cross-Disability Coal v. Abercrombie & Fitch Co., 957 F.Supp.2d 1272, 1277 (D.Colo.2013). Second, it challenges the court’s certification of a nationwide class of disabled persons who shop at Hollister stores. See Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., No. 09-cv-02757, 2012 WL 1378531, at *7 (D.Colo. 2012). Third, it challenges the court’s holding that entrances at many Hollister stores violate Title III of the ADA. See Abercrombie & Fitch Co., 957 F.Supp.2d at 1283. Finally, it challenges the court’s entry of a permanent injunction remedying those violations. See Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., No. 09-cv-02757, 2013 WL 6050011, at *1 (D.Colo.2013). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for further proceedings.

Background

Plaintiff-Appellee Colorado Cross-Disability Coalition (CCDC) is a disability advocacy organization in Colorado. Aplee. Br. 7. It advocates on behalf of its members to promote “independence, self-reliance, and full inclusion for people with disabilities in the entire community.” II Aplt.App. 486. In 2009, CCDC notified Abercrombie that Hollister stores at two malls in Colorado — Orchard Town Center and Park Meadows Mall — violated the ADA. Aplt. Br. 4-5. Initial attempts to settle the matter were unsuccessful, and this litigation followed. Id. at 4.

An ADA complaint was filed by CCDC and four of its members, one of whom was Anita Hansen. I ApltApp. 24. Ms. Hansen, who uses a wheelchair for mobility, encountered accessibility obstacles at the Hollister at Orchard Town Center. Id. at 111. Because steps led to the store’s center entrance, she attempted to enter the store through an adjacent side door, which was locked. Id. at 112. A Hollister employee let her in, but once inside, Ms. Hansen had to ask employees to move tables and furniture to get about the store. Id. This experience left her “frustrated and humiliated.” Id. at 113. She had a similar experience at the Hollister at Park Meadows Mall. Id. at 114-15. The complaint alleged that these barriers, including the stepped “porch-like structure” that served as the stores’ center entrance, violated Title III of the ADA. Id. at 29-37. The Plaintiffs added class allegations to the complaint, challenging these barriers at “Hollister Co. stores throughout the United States.” Id. at 71.

*1209■ Abercrombie took it upon itself to correct some of these barriers. It modified Hollister stores by lowering sales counters, rearranging merchandise to ensure an unimpeded path of travel for customers in wheelchairs, adding additional buttons to open the adjacent side doors, and ensuring that the side doors were not blocked or locked. Ill Aplt.App. 782. However, one thing remained unchanged: a stepped, porch-like structure served as the center entrance at many Hollister stores.

There are two types of Hollister stores in the United States: those with center entrances that are level with the surrounding mall floor, and those like the Park Meadows Hollister2 that feature a stepped porch as their center entrance. Aplt. Br. 5-6. These porches share a common design: the porch protrudes into the mall corridor and is covered by a terracotta roof, which gives it the look and feel of a Southern California surf shack. Id. at 6; Aplee. Br. 4. Two steps lead from the mall floor onto the porch — where clothed mannequins, upholstered chairs, and marketing images are displayed — and another two steps lead off the porch into either the “Dudes” (male) or “Bettys” (female) side of the store. Aplt. Br. 5-7; Aplee. Br. 4-5. On either side of the porch are two doors leading into the store that are level with the mall floor. Aplt. Br. 5. These doors are on the same storefront as the porch. Whether a person enters the store through one of these doors, or ascends and descends the porch, that person arrives at the same point in either the Dudes or Bettys side of the store. Id. at 6-7. The following picture, depicting the raised porch in the center and the level doors to the sides, may be a helpful reference.

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After the Plaintiffs filed a third amended complaint, Abercrombie moved to dismiss arguing that the Plaintiffs lacked Article III standing. I Aplt.App. 184. The district court denied the motion, holding that the Plaintiffs alleged a “real and immediate threat” of future harm if the alleged ADA violations were not remedied. *1210Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., No. 09-cv-02757, 2011 WL 2173713, at *3 (D.Colo.2011). The Plaintiffs filed a motion for partial summary judgment, asking for judgment as a matter of law on whether the porch at the Park Meadows Hollister violated Title III of the ADA. I Aplt.App. 270. The Department of Justice (DOJ) filed a Statement of Interest supporting the Plaintiffs. II Aplt.App. 346. The district court granted the Plaintiffs’ motion, holding that the “steps to the center entrance are a legally unacceptable piece of [Hollister’s] branding and violate Title III of the ADA.” Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., 835 F.Supp.2d. 1077, 1083 (D.Colo.2011).

Thereafter, four of the named Plaintiffs withdrew, and Julie Farrar, another CCDC member who uses a wheelchair, was added to join Ms. Hansen on the final complaint. II Aplt.App. 474. On the Plaintiffs’ motion, the district court certified a class defined as

all people with disabilities who use wheelchairs for mobility who, during the two years prior to the filing of the Complaint in this case, were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any Hollister Co. Store in the United States on the basis of disability because of the presence of an Elevated Entrance.

Abercrombie & Fitch Co., 2012 WL 1378531, at *1.

The parties filed cross motions for summary judgment. The Plaintiffs sought summary judgment on whether all Hollis-ter stores with porches — some 249 stores nationwide — violated Title III of the ADA. II ApltApp. 698. They also sought entry of a permanent injunction remedying this nationwide violation. Id. Abercrombie sought summary judgment on standing, arguing that the Plaintiffs failed to offer proof of a concrete injury in fact. Ill Aplt.App. 946-47. It also argued that the district court’s earlier grant of partial summary judgment should be vacated because Abercrombie made changes to the Park Meadows Hollister addressing the court’s concerns. Id. at 711. The district court granted the Plaintiffs’ motion in full and denied Abercrombie’s. Abercrombie & Fitch Co., 957 F.Supp.2d at 1283-84. The court held that the Plaintiffs produced evidence of their standing and that Aber-crombie’s changes to the Park Meadows Hollister did not moot the claim against the porch entrance. Id. at 1277. The court then held that the porch structures at all Hollister stores violated Title III of the ADA. Id. at 1283.

Finally, the court entered a permanent injunction; it ordered Abercrombie to bring all Hollister stores with porches into compliance with Title III of the ADA within three years, at a rate of at least 77 stores per year. Ill Aplt-App. 1098-99. Abercrombie could do so by modifying the porches in one of three ways: (1) making the porch entrance “level with the surrounding floor space”; (2) placing a ramp on the porch; or (3) closing the porch off from “any public access.” Id. at 1098. Abercrombie appealed.

Discussion

I. Standing

This court reviews standing de novo. Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir.2004). At its “irreducible constitutional minimum,” standing has three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, a plaintiff must suffer an “injury in fact” that is actual or imminent. Id. Second, the injury must be fairly traceable to the challenged action of the defendant. Id. Third, it must *1211be likely that the injury will be redressed by the relief requested. Id. at 561, 112 S.Ct. 2130. In response to a summary judgment motion, a plaintiff must support each element of standing by setting forth, through affidavit or other evidence, “ ‘specific facts,’ which for purposes of the summary judgment motion will be taken to be true.” Id. (citation omitted) (quoting Fed. R.Civ.P. 56(e)).

Abercrombie contends that Ms. Hansen and Ms. Farrar have not suffered a genuine injury in fact because they are ADA testers. Aplt. Br. 19-20. This court has held, however, that “testers have standing to sue under Title II of the ADA.” Tandy, 380 F.3d at 1287. We believe the same is true for Title III of the ADA. See Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1332-34 (11th Cir.2013) (relying on Tandy and holding that testers have standing under Title III of ADA). Like Title II, Title III provides remedies for “any person” subjected to illegal disability discrimination. Compare 42 U.S.C. § 12133 (Title II), with id. § 12188(a)(1) (Title III); see also Tandy, 380 F.3d at 1286-87. Thus, anyone who has suffered an invasion of the legal interest protected by Title III may have standing, regardless of his or her motivation in encountering that invasion. However, the fact that “tester standing” exists under Title III does not displace the general requirements of standing. See Houston, 733 F.3d at 1334. Like any plaintiff, a tester must demonstrate that she has indeed suffered a cognizable injury in fact that will be redressed by the relief sought.

The “injury in fact” requirement differs “depending on whether the plaintiff seeks prospective or retrospective relief.” Tandy, 380 F.3d at 1283 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). When prospective relief—such as an injunction— is sought, “the plaintiff must be suffering a continuing injury or be under a real and immediate threat of being injured in the future.” Id. In Tandy, we held that several ADA testers had standing to seek in-junctive relief against the City of Wichita. Id. at 1287-89. These plaintiffs were “under a real and immediate threat of experiencing a lift malfunction” on the city’s buses because they averred in affidavits an intent “to test Wichita Transit’s fixed-route services several times per year.” Id. at 1287.3 We held that “testimony of an intent to use buses ‘several times per year’ suggests a concrete, present, plan to use” the buses “several times each year, including the year in which [the plaintiff] made that statement.” Id. at 1284; see also id. at 1285 n. 12. This contrasted with the plaintiffs in Lujan v. Defenders of Wildlife, whom the Supreme Court held “merely expressed a desire to someday visit places halfway around the world.” Id. (citing Defenders of Wildlife, 504 U.S. at 564, 112 S.Ct. 2130).

With these principles in mind, we hold that Plaintiff Julie Farrar has standing to seek prospective relief. In two affidavits, Ms. Farrar averred that she “intend[s] to ... return to” the Park Meadows Hollister, II ApltApp. 463, and that she “will likely'be going to the Park Meadows Mall at least six times per year,” id. at 644. This “six times per year” testimony has the same effect as the “several times per year” testimony in Tandy. It suggests a concrete, present plan to return to the Park Meadows Hol-lister several times—at least six—each *1212year, including the year in which Ms. Farrar made that statement. See Tandy, 380 F.3d at 1284.

Abercrombie challenges the plausibility of Ms. Farrar’s intent to return to the Park Meadows Hollister, pointing out that she has never entered a Hollister store and that the Park Meadows Mall is not the closest to her home. Aplt. Br. 21-22; Aplt. Reply Br. 5. For the purposes of summary judgment, however, we must take the specific facts set forth in Ms. Farrar’s affidavit as true. See Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130. Moreover, her claim that she will return to the Park Meadows Hollister at least six times per year is not rendered implausible by the distance between the store and her home. Ms. Farrar testified that she will go to the Park Meadows Mall more often now that her friend has moved nearby. II Aplt.App. 644, 661; see Houston, 733 F.3d at 1336-37 (ADA plaintiff suffered an injury in fact because his frequent trips to his lawyer’s offices took him near the defendant’s store, which was more than thirty miles from his home). Ms. Farrar’s testimony demonstrates that she suffers a real and imminent threat of encountering the alleged accessibility barrier at the Park Meadows Mall in the future; this injury is directly traceable to the porch at Aber-crombie’s store, and it is likely that a remedial injunction, if warranted, would redress this harm. Therefore, Ms. Farrar has standing to seek prospective relief.

Ms. Farrar sought prospective relief as the representative of a nationwide class. Because we hold that she has Article III standing to challenge the porch at the Park Meadows Hollister, we need not decide whether the other named Plaintiffs, i.e., Anita Hansen and CCDC, have standing to serve as class representatives. See Horne v. Flores, 557 U.S. 433, 446-47, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009); Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n. 9, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (“[W]e have at least one individual plaintiff who has demonstrated standing.... Because of the presence of this plaintiff, we need not consider whether the other individual ... plaintiffs have standing to maintain the suit.”). However, Abercrombie insists that our standing analysis does not end at the Park Meadows Mall. It argues that Ms. Farrar lacks standing to bring a claim for nationwide injunctive relief because she does not intend to visit every Hollister store with a porch — over 230 stores nationwide. Aplt. Br. 23-24. We have no doubt that if Ms. Farrar were seeking a nationwide injunction in her own right, then she would lack standing to challenge accessibility barriers at stores she never intends to visit.4 See Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1075 (7th Cir.2013) (although ADA plaintiff had standing to challenge the design of a single hotel she intended to visit, plaintiff lacked standing to challenge that same design at 56 other *1213hotels she had no plans to visit). Although the concepts of standing and adequacy of status to maintain a class action appear related, they are independent criteria and must be evaluated separately. See Hassine v. Jeffes, 846 F.2d 169, 175-76 (3d Cir.1988). The question whether an injunction may properly extend to Hollister stores nationwide is answered by asking whether Ms. Farrar may serve as a representative of a class that seeks such relief. All that is necessary to answer this question is an application of Rule 23. See DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th Cir.2010). We turn to that task next.

II. Class Certification

“The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, — U.S.—, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011) (internal quotation marks omitted). To justify departure from that rule, “a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Id. (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977)) (internal quotation marks omitted). It is “Rule 23(a) [that] ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate.” Id. Rule 23(a)’s requirements are quite familiar: (1) the class is so numerous that join-der of all members is impracticable (nu-merosity); (2) there is a question of law or fact common to the class (commonality); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality); and (4) the representative parties will fairly and adequately protect the interests of the class (adequacy). Fed.R.Civ.P. 23(a).

In addition to Rule 23(a), the class proponent must also satisfy through evidentia-ry proof at least one of the provisions of Rule 23(b). Comcast Corp. v. Behrend, — U.S. —, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013). In this case, the class was certified under Rule 23(b)(2), which requires the court to find that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.Civ.P. 23(b)(2).

We review the standard the district court used in making its Rule 23 determination de novo, and we review the merits of that determination for an abuse of discretion. Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213, 1217 (10th Cir.2013). The district court enjoys “considerable discretion” in this area, and “we defer to the district court’s certification ruling if it applies the proper Rule 23 standard and its decision falls within the bounds of rationally available choices given the facts and law involved.” Devaughn, 594 F.3d at 1194 (internal quotation marks omitted).

A. Class Standing

Before we apply Rule 23, we must address Abercrombie’s repeated contention that no one, not even the class, has standing in this case. Specifically, Abercrombie argues that the class lacks standing because the Plaintiffs “never established that there are actual, non-hypothetical class members who intend to patronize each of the Hollister stores.” Aplt. Br. 29. That is, the Plaintiffs must offer proof of “actual members of the certified class who have standing” as to the 231 Hollister stores with a porch. Id. at 30.

*1214We have heard this argument before. In DG ex rel. Stricklin v. Devaughn, the defendants argued that “Rule 23(a)’s commonality and typicality requirements demanded that Named Plaintiffs prove all members were [injured] or are actually exposed to an imminent threat of harm as a result of’ the defendants’ actions. 594 F.3d at 1197. We rejected this argument, noting that it “conflate[d] the requirements for standing, prospective injunctive relief, and class certification.” Id. “First,” we held, “only named plaintiffs in a class action seeking prospective injunctive relief must demonstrate standing by establishing they are suffering a continuing injury or are under an imminent threat of being injured in the future.” Id. “Second, Rule 23’s certification requirements neither require all class members to suffer harm or threat of immediate harm nor Named Plaintiffs to prove class members have suffered such harm.” Id. at 1198.

Other authorities support the notion that class “standing” does not require individualized proof from class members. See Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir.2006) (noting that Article III standing does “not require that each member of a class submit evidence of personal standing”); Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279-80 (11th Cir.2000) (Court must first determine whether “at least one named class representative has Article III standing,” then “question whether the named plaintiffs have representative capacity, as defined by Rule 23(a), to assert the rights of others.”). Three Justices of the Supreme Court favorably quoted this principle from a leading class action treatise:

“[Unnamed plaintiffs] need not make any individual showing of standing [in order to obtain relief].... Whether or not the named plaintiff who meets individual standing requirements may assert the rights of absent class members is neither a standing issue nor an Article III case or controversy issue but depends rather on meeting the prerequisites of Rule 23 governing class actions.”

Lewis v. Casey, 518 U.S. 343, 395-96, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (Souter, J., concurring) (alterations in original) (ellipses added) (quoting 1 H. Newberg & A. Conte, Newberg on Class Actions § 2.07, pp. 2 — 40 to 2-41 (3d ed.1992)). The majority seemed to agree, pointing out that its holding did “not rest upon the application of standing rules.” See id. at 360 n. 7, 116 S.Ct. 2174.5

Thus, the question whether this class may seek nationwide injunctive relief is not answered by demanding proof of standing from each class member but by application of Rule 23.

B. Numerosity

“The burden is upon plaintiffs seeking to represent a class to establish that the class is so numerous as to make joinder impracticable.” Peterson v. Okla. City Hous. Auth., 545 F.2d 1270, 1273 (10th Cir.1976). “The numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.” *1215Gen. Tel. Co. of the Nw., Inc. v. Equal Emp’t Opportunity Comm’n, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). Plaintiffs must offer “some evidence of established, ascertainable numbers constituting the class,” but there is “no set formula to determine if the class is so numerous that it should be so certified.” Rex v. Owens ex rel. Okla., 585 F.2d 432, 436 (10th Cir.1978).

Abercrombie argues that the Plaintiffs failed to meet the numerosity requirement because “they presented no evidence regarding the size of their proposed class.” Aplt. Br. 50. This court has said, however, that the numerosity requirement is not “a question of numbers.” Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 275 (10th Cir.1977). Rather, there are a several “factors that enter into the impracticability issue.” Id. Such factors may “in-clud[e] the nature of the action, the size of the individual claims, and the location of the members of the class or the property that is the subject matter of the dispute.” 7A Charles Alan Wright, Arthur R. Miller & Marry Kay Kane, Federal Practice and Procedure § 1762, at 206-07 (3d ed.2005) (footnote omitted). “[Bjeeause it is such a fact-specific inquiry, we grant wide latitude to the district court in making this determination,” and we defer to its determination if the court “made an appropriate judgment call.” Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir.2006).

In this case, the district court had before it several facts that pointed to the existence of a class so numerous that joinder would be impracticable. At the time of the court’s certification decision, it was undisputed that porches were present at nearly 250 Hollister stores in over 40 states. II Aplt.App. 451-58, 688. Moreover, CCDC submitted declarations from five of its members who averred that they shop at malls where Hollister stores are located. I Aplt.App. 111-28. It is undeniable, and subject to judicial notice, that there are millions of Americans with disabilities. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 370, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (citing the congressional finding that “some 43,000,000 Americans have one or more physical or mental disabilities”). It was therefore reasonable to infer that a substantial number of disabled people live in the 40 states where’ Hollister stores are located; that these people, like CCDC members and many Americans, shop at malls, including the 250 malls with porched Hollisters; and that joining all of these people in one suit would be impracticable. The district court did not abuse its discretion in so finding.

The dissent suggests that we have weakened the evidentiary burden a class proponent faces on the numerosity element. To be sure, this class was defined only to include those who have suffered a past injury. See Abercrombie & Fitch Co., 2012 WL 1378531, at *1. But the only relief sought by this class was prospective in nature. We agree with the dissent that whether the class was defined only to include those suffering a past injury does not bar certification. As we see it, the timing of the class’s injuries has little effect on the issue of impracticability: identifying, locating, and joining individuals who encounter accessibility discrimination at shopping malls in 40 states would be impracticable, regardless of whether the injury occurred in the past, is ongoing, or will occur in the future. See Pederson v. La. State Univ., 213 F.3d 858, 868 n. 11 (5th Cir.2000) (“ ‘[Jjoinder of unknown individuals is certainly impracticable,’ ” and “the fact that the class includes unknown, unnamed future members also weighs in favor of certification.”) (first quoting Jack v. Am. Linen Supply Co., 498 F.2d 122, 124 (5th Cir.1974)). Overtiming the dis*1216trict court’s class certification determinations would be substituting our discretion for that of the district court — something we are not empowered to do.

C. Commonality, Typicality, and Adequacy

Abercrombie argues that the Plaintiffs failed to meet Rule 23(a)’s remaining requirements — commonality, typicality, and adequacy. Aplt. Br. 51-52. Because these requirements “tend to merge,” Wal-Mart, 131 S.Ct. at 2551 n. 5, and because Abercrombie does not address them separately, we address them together.

First, Abercrombie argues that tester plaintiffs cannot assert claims common to or typical of a class of bona fide patrons. See Aplt. Br. 51-52. This argument lacks merit. As mentioned, a plaintiffs status as tester is irrelevant in determining whether she has suffered an injury in fact under Title III of the ADA. To maintain a class action, a “class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Wal-Mart, 131 S.Ct. at 2550 (internal quotation marks omitted). The interest asserted here is the same — the right to be free from disability discrimination in a place of public accommodation — as is the alleged injury— denial of that right by porches at Hollister stores.

Elsewhere, Abercrombie again raises the specter of standing and argues that, because Ms. Farrar does not intend to visit every Hollister store with a porch, she lacks standing to obtain a nationwide injunction, and her status as class representative does not cure her lack of standing. Aplt. Br. 25. This argument conflates standing and the ability to represent a class under Rule 23. What Abercrombie challenges is whether Ms. Farrar presents “questions of law or fact common to the class” and a claim “typical of’ the class when she has only visited one of the many stores against which the class seeks relief. See Fed.R.Civ.P. 23(a).

The commonality and typicality requirements of Rule 23(a) do not require that every member of the class share a fact situation identical to that of the named plaintiff. Devaughn, 594 F.3d at 1195; see also Realmonte v. Reeves, 169 F.3d 1280, 1285 (10th Cir.1999). “[D]iffering fact situations of class members do not defeat typicality under Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory.” Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988). The class’s “common contention ‘must be of such a nature that it is capable of class-wide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’ ” XTO Energy, 725 F.3d at 1218 (quoting Wal-Mart, 131 S.Ct. at 2551).

Given this authority, it is untenable to suggest that Ms. Farrar cannot represent a class unless she shares a factually identical claim with each class member — that she visit every Hollister store that the class claims violates the ADA. Her claim against the Park Meadows Hollister is “common to” the claims of the class because it raises a common question of law— whether Hollister stores’ porched entrances violate the ADA.6 Her claim is “typical of’ the class’s even though she has *1217not visited the remaining 230 stores. These claims are based on the same legal and remedial theory — that Title III of the ADA mandates injunctive relief against the porches.

These claims are capable of classwide resolution. In this regard, it is telling that Abercrombie does not challenge the district court’s decision to certify the class under Rule 28(b)(2), i.e., that Abercrombie “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief ... is appropriate respecting the class as a whole.” II ApltApp. 695 (quoting Fed.R.Civ.P. 23(b)(2)) (emphasis added). The district court did not abuse its discretion in finding the requirements of Rule 23(a) and (b)(2) met, and it appropriately certified the class. We now turn to the merits of the class’s ADA claim.

III. ADA Violation

In 1990, Congress passed the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title III of the ADA “prohibits discrimination against the disabled in the full and equal enjoyment of public accommodations.” Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128, 125 S.Ct. 2169, 162 L.Ed.2d 97 (2005). Clothing stores, like Hollister, are public a