A. The Ninth Circuit Reverses Course: Ellis v. Costco
Among the post-Dukes decisions, the case that most
clearly demonstrates Dukes' impact is the Ninth
Circuit's decision in Ellis v. Costco.81
Decided by the same appellate court that affirmed the
Dukes decision that was reversed by the Supreme Court,
Ellis reflects the Ninth Circuit's understanding of
how it must modify the standards governing class certification as a
result of the Supreme Court's decision.
Similar to Dukes, the Ellis plaintiffs sought
to represent a class of present and former female employees who
were allegedly discriminated against on the basis of gender by
Costco's promotional practices. The class was certified under
Rule 23(b)(2) by the district court. On appeal,
post-Dukes, the Ninth Circuit reversed. Finding that, at
best, the standard for certification applied by the district court
was unclear, the Ninth Circuit stated it was "tak[ing] this
opportunity to clarify the correct standard."82
