Ellis v. Costco Wholesale Corp.
657 F.3d 970
| 9th Cir. | 2011Background
- Plaintiffs Ellis, Horstman, and Sasaki sue Costco Wholesale Corp. for gender discrimination in promotions to AGM/GM, asserting a nationwide pattern and practice affecting current and former female employees.
- District court granted class certification under Rule 23(b)(2); Costco appealed via interlocutory appeal under 28 U.S.C. § 1292(e).
- Court acknowledges Wal-Mart Stores v. Dukes as controlling in part and remands for district court to apply the new standard.
- Sasaki has standing to pursue injunctive and monetary relief because she remains an AGM and was denied GM promotion, linking concrete injury to Costco’s promotion practices.
- The district court’s analyses of commonality and typicality were flawed; the court must reassess these under the correct standards, and manageability and Rule 23(b) relief issues require remand.
- The court distinguishes current vs. former employee standing and contemplates a possible bifurcated approach under Rule 23(b)(2) for equitable relief and Rule 23(b)(3) for damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for injunctive relief | Sasaki has standing; others’ standing is not required for at least one named plaintiff. | Lujan standing not satisfied for former employees seeking injunctive relief. | Sasaki has standing; at least one named plaintiff satisfies standing. |
| Commonality under Rule 23(a)(2) | Common questions arise from Costco’s promotion practices and culture. | Commonality lacking due to regional disparities and individualized questions. | Vacate and remand for rigorous commonality analysis. |
| Typicality under Rule 23(a)(3) | Named plaintiffs’ discrimination claims are typical of class. | Unique defenses may defeat typicality for each named plaintiff. | Vacate typicality finding; remand to apply proper standard. |
| Adequacy under Rule 23(a)(4) | Sasaki adequate; Ellis and Horstman may be adequate for injunctive relief. | Former employees lack incentive for injunctive relief; concerns about representation. | Sasaki adequate; Ellis and Horstman adequacy dependent on (b)(3) class remand. |
| Rule 23(b) certification | Class primarily seeks injunctive relief under (b)(2). | Wal-Mart requires different analysis; (b)(2) may be inappropriate for monetary claims. | Vacate certification under (b)(2); remand for Wal-Mart–compliant analysis and possible (b)(3) class. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (rejected broad predominance approach; requires rigorous commonality analysis and impact on class-wide relief)
- Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147 (U.S. 1982) (rigorous analysis required for Rule 23(a) factors)
- Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992) (typicality may be defeated by unique defenses against named plaintiffs)
- Bates v. United Parcel Serv., Inc., 511 F.3d 974 (9th Cir. 2007) (standing and redressability considerations in class actions)
- In re Initial Public Offerings Securities Litigation, 471 F.3d 24 (2d Cir. 2006) (merits overlap with certification; guidance on commonality and evidence in cert rulings)
- Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718 (9th Cir. 2007) (standards for standing and class certification review)