If there was a case that might indicate what the Ninth Circuit would do in the wake of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes.pdf, 131 S. Ct. 2541 (2011), it was that of Ellis v. Costco Wholesale Corp., Case No. CV-04-3341-MHP (N.D. Cal.). The Ellis case was, like Dukes, a putative class action alleging sex discrimination against a major national employer. It was also filed in the same district court as Dukes and, not coincidentally, was only filed days after the Dukes district court had certified that case as the largest employment class action in history. The claim was somewhat narrower than those raised in Dukes in that it focused largely on promotional decisions to several management positions, but it did not include claims for alleged across the board pay disparities. The case was assigned to a different judge, but one that has issued several notable decisions in favor of plaintiffs in the past.

Not surprisingly, the court certified the class. Ellis v. Costco Wholesale Corp., 240 F.R.D. 627 (N.D. Cal. 2007). In fact, the court actually certified a class larger than the one sought by the plaintiffs, forcing the parties to remedy the order by way of a stipulation. Costco sought and received review from the Ninth Circuit, which held the case for over four years until the Dukes case was decided.

On September 16, 2011, the Ninth Circuit largely reversed and remanded the case in light of what it called "new precedent altering existing case law," specifically the new Dukes decision. Ellis v. Costco Wholesale Corp.pdf., Case No. 07-15838 (9th Cir. Sept. 16, 2011). Among its holdings, the Ninth Circuit found:

  1. The Dukes case requires a more rigorous analysis to determine commonality that includes consideration of the merits. The plaintiff must show that there is "a common question that will connect many individual promotional decisions to their claim for class relief";
  2. The district court should have considered whether the named plaintiffs' claims were "typical" of the class in light of the defenses that might be raised against them;
  3. The district court erred in certifying the class under Rule 23(b)(2) because the Supreme Court rejected the previous test focusing on the plaintiffs' subjective intent in bringing the action;
  4. The Ninth Circuit appeared to accept the view that the standards of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), should apply at the class certification stage, but found that the district court improperly confused or diluted that standard when applying it to the plaintiffs' expert. More specifically, while the court had conducted a Daubert hearing, it had ended its inquiry with a finding of admissibility, but had never engaged in the requisite rigorous analysis of whether the results demonstrated a class-wide policy of gender discrimination.

So far, so good, as these holdings are at least driven by or consistent with Dukes. But the Ellis decision also highlighted places where it believed the district court could still certify the case, even under Rule 23(b)(2). Specifically, the Ninth Circuit did not reverse the decision outright, but only remanded it for further consideration in light of the Dukes standards. Further, should the district court find commonality and typicality, the court left open the question of whether punitive damages could still be considered "incidental monetary relief," and thus justify certification under Rule 23(b)(2). It also remanded for consideration of whether the case could be certified under Rule 23(b)(3), and whether the case could be divided into two separate classes for current and former employees to avoid problems between Rules 23(b)(2) and (3).

The entire case may end up faltering on the issues of commonality and typicality on remand, but depending on the evidence presented on remand, the net result may be one or two smaller classes than one large one.

The Bottom Line: The Ninth Circuit will follow many of the dictates of the Dukes case, but may leave wiggle room to avoid others.