In Ellis v. Costco Wholesale Corp., ___ F.3d ___ (Sept. 16, 2011), the Ninth Circuit reversed an order granting class certification under Rule 23(b)(2) of a Title VII claim for gender discrimination, and remanded for the district court to reevaluate certification in light of Wal-Mart Stores, Inc. v. Dukes, 151 S.Ct. 2541 (2011).
This is the concluding paragraph of the opinion:
To summarize, we hold that at least one named Plaintiff (Sasaki) has standing to bring suit. We hold that the district court abused its discretion by applying the wrong legal standard in its analyses of commonality and typicality under Rule 23(a). Accordingly, we vacate the district court’s findings on those issues and remand for application of the correct standard. Although we hold that the district court correctly determined that Sasaki is an adequate class representative, we hold that Ellis and Horstman are inadequate representatives for pursuing injunctive relief, given that they are former employees, and remand for the district court to consider whether they are adequate representatives if a (b)(3) class is certified. We vacate the district court’s certification of a class pursuant to Rule 23(b)(2) and remand for reconsideration in light of this opinion.
Slip op. at 17723.