Case 3:04-cv-03341-MHP Document 83-1 Filed 03/23/2005 Page 1 of 23

1 Brad Seligman (State Bar No. 083838) Jocelyn D. Larkin (State Bar No. (State Bar No. 110817)
2 Sarah Varela (State Bar No. 234640) THE IMPACT FUND
3 125 University Avenue Berkeley, CA 94710
4 Telephone: (510) 845-3473 Facsimile: (510) 845-3654
5 James M. Finberg (State Bar No. 114850)
6 Bill Lann Lee (State Bar No. 108452) Karin A. Kramer (State Bar No. 087346)
7 Lexi J. Hazam (State Bar No. 224457) Nirej S. Sekhon (State Bar No. 213358)
8 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Embarcadero Center West
9 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
10 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
11 Steve Stemerman (State Bar No. 067690)
12 Elizabeth A. Lawrence (State Bar No. 111781) DAVIS, COWELL & BOWE, LLP
13 595 Market Street, #1400 San Francisco, CA 94105
14 Telephone: (415) 597-7200 Facsimile: (415) 597-7201
15 Attorneys for Plaintiffs and the Proposed Class
16

17 UNITED STATES DISTRICT COURT
18 NORTHERN DISTRICT OF CALIFORNIA
19

20 SHIRLEY “RAE” ELLIS and LEAH
21 HORSTMAN, on behalf of themselves and all others similarly situated,
22 Plaintiffs,
23 v.
24 COSTCO WHOLESALE
25 CORPORATION,

26

Defendant.

CASE NO. C-04-3341 MHP
STIPULATION AND [PROPOSED] ORDER RE FILING OF SECOND AMENDED COMPLAINT

27

28

364098.1

STIPULATION AND PROPOSED ORDER RE FILING OF SECOND AMENDED COMPLAINT AND BRIEFING
SCHEDULE, CASE NO. C-04-3341 MHP

Case 3:04-cv-03341-MHP Document 83-1 Filed 03/23/2005 Page 2 of 23

1

Plaintiffs, Shirley “Rae” Ellis and Leah Horstman, and Defendant, Costco Wholesale

2 Corporation (collectively, the “Parties”), hereby stipulate by and through their counsel with

3 respect to the filing of a Second Amended Complaint.

4

A. Pursuant to Federal Rule of Civil Procedure 15(a), the Parties agree that Plaintiffs

5 may file, as a Second Amended Complaint, the pleading attached hereto. The Second Amended

6 Complaint shall be deemed filed as of March 28, 2005.

7

B. Defendant may, before April 15, take a deposition of the new proposed Plaintiff

8 (Elaine Sasaki) limited to issues pertaining to venue.

9

C. Defendant shall file its Answer to Plaintiffs’ Second Amended Complaint no later

10 than April 4, 2005.

11

12 13 Dated: _______________________ 14 15 16 17 18 19

Brad Seligman Jocelyn D. Larkin Sarah Varela THE IMPACT FUND 125 University Avenue Berkeley, CA 94710 Telephone: (510) 845-3473 Facsimile: (510) 845-3654
By: __________________________________ Brad Seligman
Attorney for Plaintiffs

20 Dated: _______________________
21
22
23

David D. Kadue SEYFARTH SHAW LLP 2029 Century Park East, Suite 3300 Los Angeles, CA 90067-3063 Telephone: (310) 277-7200 Facsimile: (310) 201-5219

24

By:____________________________________

25

David D. Kadue

26

Attorney for Defendant

27

28

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1

ORDER

2

3

GOOD CAUSE APPEARING, it is hereby ORDERED that the Parties shall comply with

4 the provisions of the attached Stipulation Regarding Filing of Second Amended Complaint and

5 Briefing Schedule.

6

7

IT IS SO ORDERED:

8

9

10 Date: 11

_______________________________________ Marilyn Hall Patel, United States District Judge

12

13

14

15

16

17

18

19

20

21

22

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JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER CASE NO. C-04-3341 MHP

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1 Brad Seligman (State Bar No. 083838) Jocelyn D. Larkin (State Bar No. (State Bar No. 110817)
2 Sarah Varela (State Bar No. 234640) THE IMPACT FUND
3 125 University Avenue Berkeley, CA 94710
4 Telephone: (510) 845-3473 Facsimile: (510) 845-3654
5 James M. Finberg (State Bar No. 114850)
6 Bill Lann Lee (State Bar No. 108452) Karin A. Kramer (State Bar No. 087346)
7 Lexi J. Hazam (State Bar No. 224457) Nirej S. Sekhon (State Bar No. 213358)
8 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Embarcadero Center West
9 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
10 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
11 Steve Stemerman (State Bar No. 067690)
12 Elizabeth A. Lawrence (State Bar No. 111781) DAVIS, COWELL & BOWE, LLP
13 595 Market Street, #1400 San Francisco, CA 94105
14 Telephone: (415) 597-7200 Facsimile: (415) 597-7201
15 Attorneys for Plaintiffs and the Proposed Class
16

17 UNITED STATES DISTRICT COURT
18 NORTHERN DISTRICT OF CALIFORNIA
19

20 SHIRLEY “RAE” ELLIS, LEAH
21 HORSTMAN, and ELAINE SASAKI on behalf of themselves and all others
22 similarly situated,

23

Plaintiffs,

24

v.

25 COSTCO WHOLESALE CORPORATION,
26 Defendant.
27

Case No. C-04-3341 MHP SECOND AMENDED COMPLAINT [CLASS ACTION] DEMAND FOR JURY TRIAL

28

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SECOND AMENDED COMPLAINT

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1

INTRODUCTION

2

1. Costco is known for its “members only” wholesale clubs. For the public,

3 membership in a Costco club is easy to obtain. But for women employees trying to gain entry

4 into the most exclusive of the Costco clubs – store management – the door is too often barred.

5 Although women comprise almost half of Costco’s workforce, their numbers shrink considerably

6 at the management level. At the top two levels of Costco store management, Assistant Managers

7 and General Managers, fewer than one in six of the managers are female. These are the most

8 highly compensated positions in Costco’s stores. This glass ceiling for women cannot be

9 explained or justified by any reasonable business purpose, since Costco has virtually no

10 meaningful promotion process for these jobs; there are no published promotion criteria, nor any

11 posting or application processes. The substantial under representation of women in the most

12 lucrative store level positions Costco has to offer is the result of practices that purposefully

13 discriminate against women.

14

2. This class action is brought by a current female Costco employee, Elaine

15 Sasaki and two former Costco employees, Shirley “Rae” Ellis and Leah Horstman (“Plaintiffs”),

16 on behalf of themselves and all similarly situated current and former female Costco employees

17 who have been subjected to Costco’s continuing policies and practices of gender discrimination.

18 Plaintiffs, on behalf of themselves and the class they represent, charges that Costco discriminates

19 against its female employees by failing to promote equally or better qualified women to upper

20 store management positions. This class action seeks to end Costco’s discriminatory practices and

21 to provide monetary relief including punitive damages to those who have been affected by these

22 practices.

23

JURISDICTION AND VENUE

24

3. Plaintiffs’ claims arise under Title VII of the Civil Rights Act of 1964, 42

25 U.S.C. §§ 2000(e), et. seq. This Court has jurisdiction over this matter pursuant to 42 U.S.C.

26 §§ 1331 and 1343(a) (4). The Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367

27 over claims under the California Fair Employment & Housing Act, Government Code § 12940,

28 et. seq. Jurisdiction is proper in this Court because Plaintiffs Sasaki’s and Horstman’s claims

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1 arose in California and because the Plaintiffs expressed interest in positions in California and

2 some of the positions that Plaintiffs were denied were in California.

3

4. Venue is proper in this district pursuant to 42 U.S.C. § 2000e5(f) and 28

4 U.S.C. § 1391(b) & (c). Plaintiff Sasaki’s and Horstman’s claims arose in California. In

5 addition, some of the positions that Plaintiffs were denied were in California. Members of the

6 class reside throughout the United States, including Northern California. Many of the acts

7 alleged in this Complaint occurred in this District and gave rise to the claims alleged.

8

PARTIES

9

5. Plaintiff Shirley Rae Ellis was employed by Costco Wholesale Corporation

10 until November 2004. She resides in Arvada, Colorado.

11

6. Plaintiff Leah Horstman was employed by Costco Wholesale Corporation

12 until July 2004. She resides in Alpine, California.

13

7. Plaintiff Elaine Sasaki is currently employed by Costco Wholesale

14 Corporation in its Bay Area Region. She resides in Fresno, California.

15

8. Defendant Costco Wholesale Corporation is a Washington corporation

16 with stores throughout California. Costco’s corporate headquarters are in Issaquah, Washington.

17

CLASS ALLEGATIONS

18

9. Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil

19 Procedure on behalf of a Title VII class of all women employed by Costco in the United States

20 denied promotion to assistant and/or general manager positions.

21

10. The members of the class are sufficiently numerous that joinder of all

22 members is impracticable. Plaintiffs are informed and believe that the class exceeds 650 former

23 and current female employees of Costco.

24

11. There are questions of law and fact common to the class and these

25 questions predominate over individual questions. Such questions include, among others: (1)

26 whether Costco’s policies and practices have a disparate impact on female employees with

27 respect to promotion; (2) whether any disparate impact is justified by business necessity; (3)

28 whether the disparate impact constitutes a violation of Title VII of the 1964 Civil Rights Act, 42

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1 U.S.C. § 2000e, et. seq.; (4) whether Costco has engaged in a pattern and practice of disparate

2 treatment adverse to female employees; (5) whether injunctive relief and other equitable

3 remedies (including back pay and front pay) and compensatory damages are warranted for the

4 female employee class, and (6) whether punitive damages are warranted.

5

12. The claims alleged by Plaintiffs are typical of the claims of the class.

6

13. The Plaintiffs will fairly and adequately represent the interests of the class.

7

14. Class certification is appropriate pursuant to Fed. R. Civ. P. 23 (b)(2)

8 because Costco has acted and/or refused to act on grounds generally applicable to the class,

9 making appropriate declaratory and injunctive relief with respect to Plaintiffs and the class as a

10 whole. The members of the class are entitled to injunctive relief to end Costco’s common,

11 uniform, and unfair discriminatory personnel policies and practices.

12

15. Class certification is also appropriate pursuant to Fed. R. Civ. P. 23(b)(3)

13 because common questions of fact and law predominate over any questions affecting only

14 individual members of the class, and because a class action is superior to other available methods

15 for the fair and efficient adjudication of this litigation. The members of the class have been

16 damaged and are entitled to recovery as a result of Costco’s common, uniform, and unfair

17 discriminatory personnel policies and practices.

18

16. Plaintiffs also bring this action pursuant to Fed. R. Civ. P. 23 on behalf of a

19 California Fair Employment & Housing Act subclass (“FEHA Subclass”) of all women

20 employees of Costco denied promotions to Assistant Manager and/or General Manager positions

21 in California or who were employed in California and were denied such promotions outside of

22 California, in violation of Section 12940, et. seq. of the California Government Code, known as

23 the Fair Employment and Housing Act. The members of the subclass are sufficiently numerous

24 that joinder of all members is impracticable. Plaintiffs are informed and believe that the subclass

25 exceeds 250 former and current female employees of Costco.

26

17. There are questions of law and fact common to the subclass and these

27 questions predominate over individual questions. Such questions include, among others: (1)

28 whether Costco’s policies and practices have a disparate impact on female employees with

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SECOND AMENDED COMPLAINT

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1 respect to promotion; (2) whether any disparate impact is justified by business necessity; (3)

2 whether the disparate impact constitutes a violation of Government Code §12940, et. seq.; (4)

3 whether Costco has engaged in a pattern and practice of disparate treatment adverse to female

4 employees; (5) whether that disparate treatment violates Government Code § 12940, et. seq. (6)

5 whether injunctive relief and other equitable remedies (including back pay and front pay) and

6 compensatory and punitive damages are warranted for the female employee subclass.

7

18. The claims alleged by Plaintiffs are typical of the claims of the subclass.

8

19. The Plaintiffs will fairly and adequately represent the interests of the

9 subclass.

10

20. Class certification is appropriate pursuant to Fed. R. Civ. P. 23 (b)(2)

11 because Costco has acted and/or refused to act on grounds generally applicable to the subclass,

12 making appropriate declaratory and injunctive relief with respect to Plaintiffs and the subclass as

13 a whole. The members of the subclass are entitled to injunctive relief to end Costco’s common,

14 uniform, and unfair discriminatory personnel policies and practices.

15

21. Class certification is also appropriate pursuant to Fed. R. Civ. P. 23(b)(3)

16 because common questions of fact and law predominate over any questions affecting only

17 individual members of the subclass, because a class action is superior to other available methods

18 for the fair and efficient adjudication of this litigation. The members of the subclass have been

19 damaged and are entitled to recovery as a result of Costco’s common, uniform, and unfair

20 discriminatory personnel policies and practices. Plaintiffs are informed and believe and therefore

21 alleges that Costco has computerized payroll and personnel data that will make calculation of

22 back pay and front pay for specific members of the subclass relatively simple.

23

COSTCO’S GENERAL PRACTICE OF DISCRIMINATION

24

22. Costco Wholesale Corporation operates an international chain of

25 membership stores, mostly under the “Costco Wholesale” name. It refers to its stores as

26 “warehouses.” Costco offers three levels of membership, Business, Gold Star, and Executive,

27 which come with different benefits. Costco, a Fortune 500 company, operates 443 warehouses

28 worldwide, with approximately 328 warehouses located in 36 U.S. states and Puerto Rico.

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SECOND AMENDED COMPLAINT

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1 Nearly 100 of these warehouses are in the State of California. As of October 2003, Costco

2 claimed 42 million “cardholders,” covering over 23 million households. During its last reported

3 fiscal year, ended August 31, 2003, Costco reported almost $42 billion in revenues. It employs

4 over 103,000 people worldwide, including over 78,000 in the United States.

5

23. In its warehouses throughout the U.S., Costco employs standardized

6 policies and procedures related to staffing and promotion. The hierarchy of job positions is the

7 same everywhere. At the warehouse level, this hierarchy includes the following classifications:

8 (1) hourly employees; (2) hourly supervisors; (3) Area Managers and Ancillary Managers; (4)

9 Staff Managers; (5) Assistant Managers; (6) General Managers.

10

24. The type of management positions in each warehouse is also standardized.

11 There are three Area Managers per warehouse and they oversee three different geographical

12 zones of the store. There are five Ancillary Managers who oversee particular departments, such

13 as the deli or tire center. Each warehouse normally has four Staff Managers, two or more

14 Assistant General Managers, and one General Manager. There are no warehouse level positions

15 above General Manager. The next higher position in the Costco hierarchy is at the district level.

16

25. At the warehouse level, promotion to General Manager is the brass ring.

17 General Managers report to the company’s Vice Presidents. General Managers are eligible for

18 bonuses, which can be substantial. Likewise, they are the only warehouse level employees

19 eligible for potentially lucrative stock options. The Assistant Manager position is the gateway to

20 General Manager. One becomes a General Manager almost always by promotion from Assistant

21 Manager. Although there are no written criteria for promotion to either Assistant Manager or

22 General Manager, Costco claims that such promotions are based on merit and experience, not

23 seniority.

24

26. The senior management of Costco is virtually all male. Nationwide, as of

25 January 2005, women hold 16 percent of General Manager positions and less in past years.

26 Among more than 30 Executive and Senior Officers of the company, only two are women. There

27 are no female operational Vice Presidents.

28

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1

27. Promotions into Assistant Manager and General Manager positions are not

2 based on any stated criteria. Openings are not posted. Nor are there any application procedures

3 for such positions. Instead, such promotions are based on a “tap on the shoulder,” a tap usually

4 made by one of Costco’s all male operational Vice Presidents. On information and belief,

5 Plaintiffs are informed that those few women who do receive a “tap” mostly find themselves

6 relegated to the warehouse locations that generate the lowest revenue, which directly affects the

7 women’s earning potential. Consequently, promotion into Costco’s most lucrative warehouse

8 level positions is based on entirely subjective judgments, which are often infected with conscious

9 or unconscious prejudices and gender-based stereotypes, which explains why so few women out

10 of Costco’s large female employee population advance to senior store management positions.

11

28. Costco has pursued policies and practices on a continuing basis which have

12 had the effect of denying equal job opportunities to qualified women. Such policies and practices

13 include, without limitation:

14

a. Reliance upon unweighted subjective, gender-based and/or arbitrary

15 criteria utilized by a nearly all male managerial workforce in making promotion decisions;

16

b. Failure to follow a uniform job posting procedure to guarantee that

17 all employees have notice of openings;

18

c. Discouraging females from seeking or applying for senior store

19 level management positions;

20

d. Failing and refusing to consider females for promotion on the same

21 basis as males are considered;

22

e. Failing and refusing to promote females on the same basis as males

23 are promoted and compensated;

24

f. Failing to provide females with accurate and timely notice of

25 promotional opportunities;

26

g. Providing female employees interested in promotion shifting,

27 inconsistent and inaccurate statements about the requirements and qualifications necessary for

28 promotion;

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1

h. Denying female employees the training and assignments that would

2 enhance their promotability;

3

i. Maintaining and fostering a reputation for discriminatory conduct

4 which deters females from pursuing promotional opportunities with Costco;

5

j. Establishing and maintaining arbitrary and subjective requirements

6 for promotions which have the effect of excluding qualified women and which have not been

7 shown to have any significant relationship to job performance or to be necessary to the safe and

8 efficient conduct of Costco’s business;

9

k. Placing females who do attain the position of General Manager in

10 the least desirable locations, thereby depressing their earnings;

11

l. Failing and refusing to take adequate steps to eliminate the effects

12 of its past discriminatory practices; and

13

m. Retaliating against women employees who complain of unequal

14 treatment.

15

29. Plaintiffs are informed and believe that because of its discriminatory

16 policies, Costco promotes women to Assistant Manager positions at one half the rate that would

17 be expected based on the number of women in the pool of lower positions from which promotions

18 to Assistant Manager are made. This in turn has the effect of diminishing the pool of eligible

19 women for promotion to General Manager positions, since promotions to such positions are

20 usually drawn from the Assistant Manager ranks. Plaintiffs are further informed and believe that

21 it takes those women that are promoted to assistant and general manager positions a longer time

22 to get promoted than it takes men to get promoted.

23

30. As a result of Costco’s discriminatory policies and practices, it lags behind

24 its competitors in the representation of women in management positions. As of year 2000, for

25 example, 26.4% of Costco’s managers were female, compared to an industry average of more

26 than 33% for other large chains in the same business.

27

28

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1

CLAIM OF NAMED PLAINTIFF SHIRLEY “RAE” ELLIS

2

31. Plaintiff Shirley “Rae” Ellis, a female, was hired by Costco as an Assistant

3 Manager in 1998. She is currently an Assistant Manager at Costco’s Douglas County, Colorado

4 warehouse.

5

32. Prior to being recruited to join Costco, Ms. Ellis had extensive

6 management experience. At the time Costco hired Ms. Ellis, she was working as a General

7 Manager for Wal-Mart’s Sam’s Club, one of Costco’s main competitors. The position of General

8 Manager at Sam’s Club is similar in function and job duties to the General Manager position at

9 Costco.

10

33. Ms. Ellis agreed to take a step down in pay and seniority and join Costco as

11 an Assistant Manager rather than a General Manager because she was told that Costco did not

12 hire General Managers from the outside and that she would be eligible for promotion to General

13 Manager within a year. Promotion to General Manager would bring increased salary and

14 substantial bonuses that would raise her compensation above what she was then earning at Sam’s

15 Club. Ms. Ellis repeatedly told Costco during the interview process that, due to her age (45) and

16 experience, she did not want to come to Costco just to be an Assistant Manager. Costco assured

17 her that she would not have to wait long for promotion to General Manager.

18

34. Since joining Costco, Ms. Ellis has received excellent performance reviews

19 and has been told that she is eligible for promotion and that promotion was imminent. She has

20 repeatedly told Costco of her interest in promotion to General Manager. Ms. Ellis has advised

21 Costco of her willingness to move anywhere Costco desired to fill a General Manager opening,

22 and also has expressed her interest in a General Manager position in a California warehouse.

23 However, despite the fact that Costco has at least 100 warehouses in California and that there

24 have been numerous openings for General Manager in these warehouses and others during the

25 relevant time, Ms. Ellis has not been offered a position in any of them. Ms. Ellis has been

26 prevented from applying for specific openings in these warehouses because Costco does not post

27 or otherwise notify employees of these openings. Instead, Ms. Ellis is informed and believes that

28

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1 these openings have been filled mostly with males with less experience and inferior

2 qualifications.

3

35. On or about October 24, 2002, Ms. Ellis filed a charge of discrimination

4 with the United States Equal Employment Opportunity Commission (“EEOC”). Attached to this

5 Complaint as Exhibit A, and incorporated herein by reference, is a copy of that charge. Ms. Ellis

6 has received a Notice of Right to Sue from the EEOC and has timely filed this action. Under a

7 “work-sharing” agreement between the EEOC and the California Department of Fair

8 Employment and Housing, charges filed with the EEOC are to be automatically cross-filed with

9 the DFEH.

10

36. In 2004, after Ms. Ellis filed her charge of discrimination with the EEOC,

11 Costco retaliated against Ms. Ellis by, among other things, moving her from her warehouse in

12 Aurora, Colorado to a remote location, requiring a multi-hour commute. On or about April 23,

13 2004, Ms. Ellis filed a retaliation charge with the EEOC. In November 2004, Ms. Ellis resigned

14 her employment with Costco because the ongoing retaliation made her position untenable.

15 Attached hereto as Exhibit B and incorporated by reference is a copy of the charge of retaliation

16 Ms. Ellis filed. Ms. Ellis has received a Notice of Right to Sue from the EEOC and has timely

17 filed this action.

18

37. Costco has discriminated against Ms. Ellis on account of her gender as

19 follows:

20

a. By failing and refusing to consider her for promotional

21 opportunities on the same basis as males are considered;

22

b. By failing and refusing to provide her with timely and accurate

23 notice of employment opportunities;

24

c. By relying on subjective, arbitrary, and gender-based decision-

25 making by a nearly all-male managerial force to deny her promotional opportunities and equal

26 compensation;

27

d. By promoting similarly-situated and less qualified males more

28 rapidly than her; and

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1

e. By retaliating against her for filing a charge of discrimination with

2 the EEOC .

3

38. Ms. Ellis is informed and believes that Costco has discriminated against

4 her in the same manner that it discriminates against the class generally; her primary intention with

5 regard to this is case is to end Costco’s pattern and practice of discrimination.

6

CLAIM OF NAMED PLAINTIFF LEAH HORSTMAN

7

39. Plaintiff Leah Horstman, a female, was hired by Costco as a “caller” in

8 May 1981. When she left Costco in July 2004 Ms. Horstman held the position of Receiving

9 Manager at Costco’s La Mesa, California warehouse.

10

40. Ms. Horstman was a Costco employee for 23 years. She began working for

11 Costco as a student and continued working for Costco after she received her college degree. She

12 served in numerous positions with Costco including approximately 15 years in management

13 positions.

14

41. During her tenure at Costco, Ms. Horstman consistently received excellent

15 performance reviews and was told that she was eligible for promotion and that promotion was

16 imminent. She repeatedly informed senior managers and executives at Costco of her interest in

17 being promoted to senior store management positions such as Assistant Warehouse Manager.

18 Ms. Horstman advised Costco of her willingness to move outside of California for an Assistant

19 Manager position. Despite the fact that Costco opened many new warehouses across the United

20 States, Ms. Horstman was not offered an Assistant Manager position in any of them. Ms.

21 Horstman was prevented from applying for specific openings in these warehouses because Costco

22 does not post or otherwise notify employees of these openings and has no application procedure

23 for such positions. Instead, Plaintiff is informed and believes that these openings have been filled

24 mostly with males with less experience and inferior qualifications.

25

42. Ms. Horstman ceased working for Costco in July 2004 because she became

26 convinced that despite her excellent performance, her 23 years of service, and her repeated

27 requests, Costco would never promote her to Assistant Manager.

28

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1

43. On or about October 11, 2003, Ms. Horstman filed a charge of

2 discrimination with the United States Equal Employment Opportunity Commission (“EEOC”)

3 and the California Department of Fair Employment and Housing (“DFEH”). Attached to this

4 Complaint as Exhibit C, and incorporated herein by reference, is a copy of that charge.

5 Ms. Horstman has received a Notice of Right to Sue from the EEOC and has timely filed this

6 action.

7

44. Costco has discriminated against Ms. Horstman on account of her gender

8 as follows:

9

a. By failing and refusing to consider her for promotional

10 opportunities on the same basis as males are considered;

11

b. By failing and refusing to provide her with timely and accurate

12 notice of employment opportunities;

13

c. By relying on subjective, arbitrary, and gender-based decision-

14 making by a nearly all-male managerial force to deny her promotional opportunities;

15

d. By giving her shifting and inconsistent requirements for promotion;

16

e. By discouraging her from seeking promotion; and

17

f. By promoting similarly-situated and less qualified males more

18 rapidly than her.

19

45. Ms. Horstman is informed and believes that Costco has discriminated

20 against her in the same manner that it discriminates against the class generally; her primary

21 intention with regard to this is case is to end Costco’s pattern and practice of discrimination.

22

CLAIM OF NAMED PLAINTIFF ELAINE SASAKI

23

46. Plaintiff Elaine Sasaki, a female, was hired by Costco as a front end cashier

24 in 1985. She is currently an Assistant Manager at Costco’s Visalia, California warehouse.

25

47. Ms. Sasaki has been a Costco employee for 20 years. Within five years of

26 being hired, Ms. Sasaki was promoted to staff-level manager and subsequently held every staff

27 level position in the Clovis, California warehouse. After a brief stint as Administrative Assistant

28 to the Regional Vice Presidents in the Bay Area Region, she was promoted to the position of

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1 Assistant Manager and was assigned to the Chico, CA store in November 1996. In March 2001

2 she became an Assistant Manager in the Texas Region and then transferred to the Visalia,

3 California store in Costco’s Bay Area Region as Assistant Manager in March 2002.

4

48. Throughout her time at Costco, Ms. Sasaki has received excellent

5 performance reviews and has been repeatedly told she was eligible for promotion. In 2000, she

6 was told she was on the “promotable list.” From the time of her promotion to Assistant Manager

7 in 1996, Ms. Sasaki has repeatedly told Costco that she is interested in a promotion to General

8 Manager. Despite her desire to stay in the Bay Area region, in March 2001, she transferred to the

9 Texas region because she was informed and believed that there would be more opportunity for

10 promotion to General Manager in that region. In March 2002, Ms. Sasaki returned to Northern

11 California after being told she would be considered for a General Manager position within the

12 next one to two years either in the Visalia, California warehouse or in one of the half-dozen soon-

13 to-be-opened Costco warehouses. However, despite the fact that Costco has at least 100

14 warehouses in California and that there have been numerous openings in these and other

15 warehouses in the Bay Area Region during the relevant time, Ms. Sasaki has not been offered a

16 position in any of them. Ms. Sasaki has been prevented from applying for specific openings in

17 these warehouses because Costco does not post or otherwise notify employees of these openings.

18 Instead, Ms. Sasaki is informed and believes that these many of these openings have been filled

19 with males with less or similar experience and inferior qualifications.

20

49. On or about March 1, 2005, Ms. Sasaki filed a charge of discrimination

21 with the United States Equal Employment Opportunity Commission (“EEOC”), which, plaintiffs

22 are informed and believe, was cross-filed with the California Department of Fair Employment &

23 Housing. Attached to this Complaint as Exhibit D, and incorporated herein by reference, is a

24 copy of that charge. Plaintiffs will request a right to sue letter for this charge.

25

50. Costco has discriminated against Ms. Sasaki on account of her gender as

26 follows:

27

a. By failing and refusing to consider her for promotional

28 opportunities on the same basis as males are considered;

354658. 1

- 12 -

SECOND AMENDED COMPLAINT

Case 3:04-cv-03341-MHP Document 83-1 Filed 03/23/2005 Page 17 of 23

1

b. By failing and refusing to provide her with timely and accurate

2 notice of employment opportunities;

3

c. By relying on subjective, arbitrary, and gender-based decision-

4 making by a nearly all-male managerial force to deny her promotional opportunities and equal

5 compensation;

6

d. By promoting similarly-situated and less qualified males more

7 rapidly than her; and

8

51. Ms. Sasaki is informed and believes that Costco has discriminated against

9 her in the same manner that it discriminates against the class generally; her primary intention with

10 regard to this is case is to end Costco’s pattern and practice of discrimination.

11

FIRST CLAIM FOR RELIEF

12

(Title VII of the Civil Rights Act of 1964

42 U.S.C. §§ 2000(e), et. seq. on behalf of the Title VII class) 13

14

52. Plaintiffs incorporate Paragraphs 1 through 51, except allegations of

15 intentional conduct.

16

53. This claim is brought on behalf of Plaintiffs and the Title VII class.

17

54. The foregoing conduct violates Title VII of the Civil Rights Act, 42 U.S.C.

18 §§ 2000(e), et. seq.

19

55. Plaintiffs Ellis and Horstman have received Right to Sue letters from the

20 EEOC and have commenced this action in a timely manner. Plaintiffs have therefore exhausted

21 their administrative remedies and fulfilled all conditions precedent to suit.

22

56. Costco has maintained a system for making decisions about promotions

23 into management positions which is arbitrary, subjective, lacks any meaningful posting and

24 application process and which has a disparate impact on female employees. Costco’s subjective

25 and gender-based system is not justified by business necessity or, if it could be justified, less

26 discriminatory alternatives exist.

27

57. Costco’s discriminatory practices described above have resulted in a loss of

28 past and future wages and other job benefits.

354658. 1

- 13 -

SECOND AMENDED COMPLAINT

Case 3:04-cv-03341-MHP Document 83-1 Filed 03/23/2005 Page 18 of 23

1

58. Plaintiffs request relief as provided for below in the Prayer.

2

SECOND CLAIM FOR RELIEF

3

(Title VII of the Civil Rights Act of 1964

42 U.S.C. §§ 2000(e), et. seq. on behalf of Title VII class) 4

5

59. Plaintiffs incorporate Paragraphs 1 through 58.

6

60. This claim is brought on behalf of Plaintiffs and the Title VII class.

7

61. The foregoing conduct violates Title VII of the Civil Rights Act, 42 U.S.C.

8 §§ 2000(e), et. seq.

9

62. Costco has engaged in a pattern and practice of intentional discrimination

10 against the class and has denied women the same opportunities for promotion afforded to

11 similarly situated male employees.

12

63. Costco’s discriminatory practices described above have resulted in a loss of

13 past and future wages and other job benefits, and have caused Plaintiffs to suffer humiliation,

14 embarrassment and emotional distress.

15

64. Defendant did the acts alleged herein with malice or reckless indifference

16 to the protected rights of Plaintiffs and the class members. Plaintiffs and the class members are

17 thus entitled to recover punitive damages in an amount to be determined according to proof.

18

65. Plaintiffs request relief as provided for below in the Prayer.

19

THIRD CLAIM FOR RELIEF

20

(California Fair Employment And Housing Act,

Govt. Code §§ 12940, et. seq. on behalf of California subclass) 21

22

66. Plaintiffs incorporate Paragraphs 1 through 65.

23

67. This claim is brought on behalf of the Plaintiffs and the FEHA subclass .

24

68. The foregoing conduct violates the California Fair Employment and

25 Housing Act., Government Code §§ 12940, et. seq. Plaintiffs have received a right to sue letter

26 from the DFEH and have commenced this action in a timely manner.

27

28

354658. 1

- 14 -

SECOND AMENDED COMPLAINT

Case 3:04-cv-03341-MHP Document 83-1 Filed 03/23/2005 Page 19 of 23

1

69. Defendant’s discriminatory practices have resulted in the loss of past and

2 future wages and other job benefits, and have caused the Plaintiffs and the subclass to suffer

3 humiliation, embarrassment, and emotional distress.

4

70. Defendant did the acts alleged herein with oppression, fraud and malice.

5 Plaintiffs and the subclass members are thus entitled to recover punitive damages in an amount to

6 be determined according to proof.

7

FOURTH CLAIM FOR RELIEF

8

(Title VII of the Civil Rights Act of 1964

42 U.S.C. §§ 2000(e), et. seq. ) 9

10

71. Plaintiff Ellis incorporates Paragraphs 1 through 70.

11

72. This claim is brought on behalf of the Plaintiff Ellis individually for her

12 retaliation claim.

13

73. Defendant discriminated against the Plaintiff on the basis of her gender by

14 refusing to promote her and by retaliating against her for filing a charge of discrimination with

15 the EEOC.

16

74. Defendant’s discriminatory and retaliatory practices have resulted in the

17 loss of past and future wages and other job benefits, and have caused Plaintiff to suffer

18 humiliation, embarrassment, and emotional distress.

19

75. Defendant did the acts alleged with malice or reckless indifference to the

20 protected rights of Plaintiff . Plaintiff is thus entitled to recover punitive damages in an amount to

21 be determined according to proof.

22

76. Plaintiff therefore requests relief as provided for below in the Prayer.

23

RELIEF ALLEGATIONS

24

77. Plaintiff and the class and subclass they represent have no plain, adequate,

25 or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in

26 this action is the only means of securing complete and adequate relief. Plaintiffs and the class

27 and the subclass they represent are now suffering and will continue to suffer irreparable injury

28 from Defendant’s discriminatory acts and commissions.

354658. 1

- 15 -

SECOND AMENDED COMPLAINT

Case 3:04-cv-03341-MHP Document 83-1 Filed 03/23/2005 Page 20 of 23

1

78. The actions on the part of Defendant have caused and will continue to

2 cause Plaintiffs and all class and subclass members substantial losses in earnings, promotional

3 opportunities, and other employment benefits, and have caused Plaintiffs and all class and

4 subclass members to suffer and continue to suffer humiliation, embarrassment, and anguish, all to

5 their damage in an amount according to proof.

6

PRAYER FOR RELIEF

7

WHEREFORE, Plaintiffs and the class and subclass pray for relief as follows:

8

1. Certification of the class and subclass as a class action on behalf of the

9 proposed Plaintiff class and subclass and designation of Plaintiffs as representatives of the class

10 and subclass and their counsel of record as Class Counsel;

11

2. All damages which the individual Plaintiffs and the class have sustained as

12 a result of Defendant’s conduct, including back pay, front pay, general and special damages for

13 lost compensation and job benefits that they would have received but for the discriminatory

14 practices of Defendant, and for emotional distress, humiliation, embarrassment, and anguish,

15 according to proof;

16

3. For Plaintiff Ellis’ individual, non-class claims, all damages she has

17 sustained as a result of Defendant’s conduct, including back pay, front pay, general and specific

18 damages for lost compensation and job benefits they would have received but for the

19 discriminatory practices of defendant, and damages for emotional distress, according to proof;

20

4. Exemplary and punitive damages in an amount consistent with the law;

21

5. A preliminary and permanent injunction against Defendant and its partners,

22 officers, owners, agents, successors, employees, representatives, and any and all persons acting in

23 concert with them, that requires the following:

24

a. desisting from engaging in each of the unlawful practices, policies,

25 customs, and usages set forth in this complaint;

26

b. adopting non-discriminatory and objective promotion standards;

27

c. creating a transparent and non-discriminatory job posting and

28 application process for Assistant Manager and General Manager positions;

354658. 1

- 16 -

SECOND AMENDED COMPLAINT

Case 3:04-cv-03341-MHP Document 83-1 Filed 03/23/2005 Page 21 of 23

1

d. instituting an affirmative action policy to insure that women receive

2 the share of Assistant Manager and General Manager positions they would have obtained were it

3 not for Costco’s discriminatory practices; and

4

e. creating a monitoring and reporting system to insure that injunctive

5 relief is fully implemented.

6

6. A declaratory judgment that the practices complained of herein are

7 unlawful and violative of 42 U.S.C.§§ 2000(e), et. seq., Title VII of the Civil Rights Act of 1964,

8 and the California Fair Employment and Housing Act, Government Code §§ 12940, et. seq.

9

7. An order assigning Plaintiffs and the class and subclass to those jobs they

10 would have held but for Defendant’s discriminatory practices;

11

8. An adjustment of the wage rates, benefits, and seniority rights for Plaintiffs

12 and the class and subclass to that level which Plaintiffs and the class would be enjoying but for

13 Defendant’s discriminatory practices;

14

9. For prejudgment interest to the extent permitted by law;

15

10. For costs and expenses of suit incurred herein, including reasonable

16 attorneys’ fees to the extent available by law; and

17

11. For such other and further legal and equitable relief as the Court may deem

18 just and proper. 19 Dated: March 15, 2005 20 21 22 23 24

Respectfully submitted,
Brad Seligman (State Bar No. 083838) Jocelyn D. Larkin (State Bar No. 110817) Sarah Varela (State Bar No. 234640) THE IMPACT FUND 125 University Avenue Berkeley, CA 94710 Telephone: (510) 845-3473 Facsimile: (510) 845-3654

25

By:

Brad Seligman 26

27

28

354658. 1

- 17 -

SECOND AMENDED COMPLAINT

Case 3:04-cv-03341-MHP Document 83-1 Filed 03/23/2005 Page 22 of 23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
354658. 1

James M. Finberg (State Bar No. 114850) Bill Lann Lee (State Bar No. 108452) Karin A. Kramer (State Bar No. 087346) Lexi J. Hazam (State Bar No. 224457) Nirej S. Sekhon (State Bar No. 213358) LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Embarcadero Center West 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
Steve Stemerman (State Bar No. 083838) Elizabeth A. Lawrence (State Bar No. 111781) DAVIS, COWELL & BOWE, LLP 595 Market Street, #1400 San Francisco, CA 94105 Telephone: (415) 597-7200 Facsimile: (415) 597-7201
Attorneys for Plaintiffs and the Proposed Class

- 18 -

SECOND AMENDED COMPLAINT

Case 3:04-cv-03341-MHP Document 83-1 Filed 03/23/2005 Page 23 of 23

1

JURY DEMAND

2

Plaintiff and the class she represents demand a jury trial on all claims where such

3 trial is authorized by law.

4 Dated: March __, 2005

Respectfully submitted,

5

Brad Seligman (State Bar No. 083838)

Jocelyn D. Larkin (State Bar No. 110817)

6

Sarah Varela (State Bar No. 234640)

THE IMPACT FUND

7

125 University Avenue

Berkeley, CA 94710

8

Telephone: (510) 845-3473

Facsimile: (510) 845-3654

9

10

By:

Brad Seligman

11

12

13

James M. Finberg (State Bar No. 114850)

Bill Lann Lee (State Bar No. 108452)

14

Karin A. Kramer (State Bar No. 087346)

Lexi J. Hazam (State Bar No. 224457)

15

Nirej S. Sekhon (State Bar No. 213358)

LIEFF, CABRASER, HEIMANN &

16

BERNSTEIN, LLP

Embarcadero Center West

17

275 Battery Street, 30th Floor

San Francisco, CA 94111-3339

18

Telephone: (415) 956-1000

Facsimile: (415) 956-1008

19

20

Steve Stemerman (State Bar No. 067690)

Elizabeth A. Lawrence (State Bar No. 111781)

21

DAVIS, COWELL & BOWE, LLP

595 Market Street, #1400

22

San Francisco, CA 94105

Telephone: (415) 597-7200

23

Facsimile: (415) 597-7201

24

Attorneys for Plaintiffs and the Proposed Class

25

26

27

28

354658. 1

- 19 -

SECOND AMENDED COMPLAINT

 
 Case3:04-cv-03341-EMC Document77 Filed12/23/04 Page1 of 2

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UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8

9 SHIRLEY RAE ELLIS and LEAH HORSTMAN, on behalf of themselves and
10 others similarly situated

No. C 04-3341 MHP

I I

Plaintiffs,

v.

12

COSTCO WHOLESALE CORPORATION,

13

ORDER

14

Defendant.

----------------------------~/

15

16 Shirley Rae Ellis and Leah Horstman, current and former employees of defendant Costco
17 Wholesale Corporation, have brought a class action to challenge gender discrimination in
18 defendant's promotion and management practices. Plaintiffs allege that defendant denied female
19 employees promotions to assistant and general manager positions in violation of Title VII of the
20 Civil Rights Act of 1964, 42 U.s.c. section 2000e, et seq. In addition, they bring pendent causes of
21 action alleging gender discrimination in violation of the Fair Employment and Housing Act,
22 California Government Code section 12940, et seq.
23 Pursuant to 28 U.S.c. section 1404(a), defendant has moved to transfer plaintiffs' complaint
24 to the District of Colorado, or in the alternative, to the Western District of Washington. The parties
25 also filed supplemental briefs assessing the merits oftransfcr the Southern District of California.
26 After considering the parties' arguments and submissions, and in accordance with the instructions
27
given at the hearing on this motion, the court denies defendant's motion without prejUdice to its
28 renewal after further discovery on the scope and geographic distribution of the proposed class. The

Case3:04-cv-03341-EMC Document77 Filed12/23/04 Page2 of 2

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1 parties need not file additional memoranda except insofar as new case law emerges. The parties may

2 submit further declarations and evidence of this issue following discovery. The parties shall submit

3 within 14 days ofthis Order an agreed-upon schedule for completion of this discovery.

4

5

IT IS SO ORDERED.

6
~ ~cf 7 Dated:jk, /
8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

 
 Case 3:04-cv-03341-MHP Document 484 Filed 10/27/2006 Page 1 of 3

Oct-2HOD6 !O:H From-

T-021 P.00£/004

I

1 l THE IMPACT FlJN'D Brad Seligman (SBN: 838315)

SEYFARTH SHAW LLP
Kenwood c. Youm~ (SBN; 68258)

2 Jocelyn D. Larkin (SBN: ll0817)

David D. Kaduc (SBN; 113578)

3

,H1B12e5rkUelneiyvt,'!ClsAity

Avenue
94710

'l"fele:phnne: (510) 845·3473
l4 Facsnnile: (51 0) 845-3654

l CABRASE~ 5 LIEFF,

HEJMANN

1 & orm..1. 14'STEIN, LLP

2029 Centttry Park 'Ra~r. Suite 3300

Los Angeles, California 90067-3063 Telephone: (31 0) 217-7200 Facs1rnile: (310) 2Ul ~Y!J 9

I
!

SEYFARTH SHAW LLP

I

Ger:.~lrl T.. Ma.atman. Jr. (.4.dmiued Pro Hac Vice)

6 i!JamesM.Finbet'g(S'RN: 114850)

55 East Monroe Street, Suite 4200

7

I 1

Bill Lann Lee (SBN: Embarcadero Center

108452) West ·

Chicago, Illinois 60603-5803
~.!=: Y"fARTH SfL"\W LLP

I

1 275 Battery Street. 30th Floor
8 , San franci:scu, CA 94111-3339 1 Tole{'hon&: (415) 956-1000
9 j FAC'-"lmile: (415) 956-IOOS

Thomas J. Wybcnga (Admitted Pro Hac Vica) 999 Lake Drive
Issaquah, Washingwn 98027 Telephone: (425) 313-6794
FacSimile: (42.5) 3U·6922

l
!
I

10 DAVIS, COWELL & BOW.t::, LLP

'

, Steve Stemerrnan (SBN: 067690)

Attomoy~ fo:r Defendrurt

ll jElizabeth A. Lawrence (SBN: 111781)

Cos:tco WholP.~lllle: Corporation

1595 Market Street, #1400
'I12 ' San Francisco, CA 94105 Tele:phone: (415) 597-7200

Fill FIL ~:1

13 l Facsnnile: (4 J5) 597-7201

'jl·
14 Attomeyo for Plaintiffs 1Shirh~y "Rae" Ellis. et al.
15 I
16

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tDu!:H:. Rl)!iCST·mO:,;f·;GCALOJLFiOflF1!~!;;

!

NOltTIIERN DISTRlCT OF C.A.'LIFORNTA

17 !,

.

I

(SAi~ FRANCISCO DIVISION)

18 '

ISHIRLEY "RAE" ELLIS, LEAH HORSTMAN) Cl:l!>e No, C04 3:!41 MliP

191 a.'1d ELAINE SASAKI, en behalf of themselves)

I
I I

and all others similarly situated,

20 fl

! 21 i

Pluintiffs,

I'l22 I

v .

! 23 COSTCO \VHOLESAJ .E CORPORATION,

) Assigned to; Han. Marilyn Hall Patel

)
)

STIPULATION •A.~D LPROPOSEDJ

I !
i

) ORDER REGARDING l'LAINTIFFS'

)) MOTION TO STRJKE
DECLARATIONS SUBMITTED BY
~ COSTCO

II,

l
!I24 .
25

Defendant.

~

) )

l
. I

26 ! i

27 1--------=s=y=w=--,(""'P"""R--=o=p-=o-e-sr'n)] ORDSR RE MOTION TO STIUKE DB.CT.AR ATlONJ

28 I

CASE NO. 04-3341 Mi

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From-

To-The Impact Fund

Pa;e COZ

Case 3:04-cv-03341-MHP
Oct-27-2006 10:13 From-
r
'

Document 484

Filed 10/27/2006 Page 2 of 3
T-021 P.Dfl3/004 F-OOd

2lil 1 Tr. opposition to l'laintiffs' motion for class certification, Costco,has submitted declara1ions i from illdividuals who are members ofthe class pl!ii.utiffs seck to have certified. Pl~inti£fs ha:ve

llmoved a 3

to st."'i.kc these declarations and Co<;tcn has tiled motion requesting clarification of the

I

II4 Court's order issued after a telephonic conference call held on October lU, 2006 and a tur"Jler
5 1! conference call with lhe Courr·s clerk. ht:ld ou October 12,2006.

1·•~

d
G 'I The pard.~s h~;1eby stipulate 11::1 follows;

7

1. Langnaee in putative clasl) member declarations (including the heading ~~a

: ,Ii GENDER DISCR-T!\1INATION'') stating L1.e conclusion that t.'l}e declarant or anyone else has lnever experienced or observed gender discrimination or that Costco has never discrimiuated
I 10 j against women or words to this effect i~ wiihdrawn and will not be cunsiucred by the Coun.

I
!
I

11 il

I

12 j

2. Language in putative class member declW1.Lli.ons tb.at plaintiffB do not represent

j, 13 ili.e declaram's interests or That sht:: uo~:. oot wish to be rcpr~er.ted by plaintiffs or their conn.::-el

I eff~:.:cL 14 or words to that

b withdrawn and will not be considered by the. Ccmrt.

!
! 1 <;;

J. The renlllinder ofthe dedarationq may be cited for Rule 23 purposes only, and

16 1! neither zide waives the right to areue the wcie-ht to be given to said declarations. In particular.

17
the dedarations may not be used to impeach the testimony of any class member or ro limit her 18

19 i1 remedies or representation in this case.

l

20 [

4. A notice of this stipulation and order shall promptly be mailed to each a.fteclt:u

21 , d~clarant once the Courr approves jt.
I

22 f

"

, II ~3 Clarify.

Plaintiffs withdraw their motion to strike and Costco withdmws ite motion to

2: 2
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"""'[P=-R.-.,..,OP"'"""cisED]

RE Mi.'iTION TO S'ffilKE DEcti'iRATJONs;

CASE NO. 04·3341 MI·IP!

I

Recelved 2i-IO·ZOOB 08:2S

From-

Case 3:04-cv-03341-MHP Document 484 Filed 10/27/2006 Page 3 of 3

Oc:t-2'H!JilS 10:13
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II

I

1 !hC"arings on plaintiffs• motion for class certification and Costco's motions to stril<.e plamtiffs' .

2'1 expert deda.-ations shaH bt: held on November 7) 2006 at 9:00a.m.

1i

..

3 lj

7. This s'tipulation is the product ofnegotiation_ No adverse inference may be ut'a\l'll!

I 4 I•

I from the withdrawal of the parties, motions or Ihis stipulation.

I

: ,

8.

Septe~nbe' The decl!uatlon OfJonl ffwmncc may bo filed nunc pro rune to

29,

1:,

1

7 j' 2006, subject to the provisium; of this stipulation and o.rder.

.

i

IT IS SO STIPULATED.

I9 . DATED: October 27, 2006

10 i
I

11!
!
12

I13
14 !! DATED: October 27, 200fi

151!

16 II !
17 !

·,i

By_~· THE IMPACT FUND

---.~~~~,e~li~s-~------------------~1I!

Attorney~ fur Ph:l.!utiffs

!

j

SEYFARTH SHAW LLP
By~f0~

Attorneys for Defendant

18
l~ i
20 1

ORDER
GOOD CAUSE APPEARING, it is hereby ORUEKED that the ?m-Jes shall curuply with

21 the provisions of the l1Lovc Stipulation rcg!ll'din~e compr~se on Plaintiff.1.1' motion to sw:ike

r--- Z2
23

,l~YIb'iJ~AO!j0'nfE!R,F;;s;.-~ hJ!.JjiM;~ ;J~.~.if

~""~ '-u~ ::?;ft~~tI1

I 24 DATt:U: October.iL., 2006

!

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26

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I

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fo ~ ~ ~~x-> ;!£ (//~

Ii (iJ..~ i.AI 6605 t37.l

From-

ic-Tha impact Fund

 
 Case 3:04-cv-03341-MHP Document 494 Filed 01/11/2007 Page 1 of 37

UNITED STATES DISTRICT COURT
For the Northern District of California

1

2

3

4

5
UNITED STATES DISTRICT COURT
6
NORTHERN DISTRICT OF CALIFORNIA
7

8

SHIRLEY RAE ELLIS, LEAH HORSTMAN,

9 and ELAINE SASAKI on behalf of

themselves and others similarly situated,

10

Plaintiffs,

11

v.

12 COSTCO WHOLESALE CORPORATION

No. C 04-03341 MHP MEMORANDUM & ORDER Re: Motion for Class Certification and Appointment of Lead Plaintiff and Lead Counsel

13

Defendant.

_____________________________________/

14

15 Shirley Rae Ellis, Leah Horstman, and Elaine Sasaki, current and former employees of
16 defendant Costco Wholesale Corporation (“Costco”), have brought a putative class action alleging
17 gender discrimination in Costco’s promotion and management practices. Pursuant to Title VII of the
18 Civil Rights Act of 1964, 42 U.S.C. section 2000e, et seq., plaintiffs allege that Costco’s promotion
19 system has a disparate impact on female employees, that Costco’s management discriminates against
20 women in promotions, and that defendant has retaliated against persons seeking redress for
21 discrimination. In addition, plaintiffs bring pendent causes of action alleging gender discrimination
22 in violation of the Fair Employment and Housing Act, California Government Code section 12940,
23 et seq.1 Plaintiffs Shirley Rae Ellis et al. seek certification of a nationwide class consisting of
24 current and former female Costco employees who were denied promotion to General Manager
25 (“GM”) or Assistant General Manager (“AGM”) positions or promotion to certain Senior Staff
26 positions since January 3, 2002. Now before the court is plaintiffs’ motion for class certification
27 pursuant to Federal Rule of Civil Procdure 23 including plaintiffs’ request for appointment of lead
28 counsel and approval of their proposed trial plan. In response, defendant has filed a motion to strike

Case 3:04-cv-03341-MHP Document 494 Filed 01/11/2007 Page 2 of 37

UNITED STATES DISTRICT COURT
For the Northern District of California

1 plaintiffs’ expert declarations. After considering the parties’ arguments and submissions and for the

2 reasons set forth below, the court rules as follows.

3 BACKGROUND2

4 I. The Parties

5

A. Plaintiff Shirley Rae Ellis

6

Plaintiff Ellis has worked as an Assistant Manager at Costco since 1998. Before her

7 employment with Costco, Ellis worked as a General Manager at Wal-Mart’s Sam’s Club, a position

8 similar in function and duties to Costco’s General Manager position. Ellis began her employment

9 with defendant in a Michigan warehouse, but subsequently transferred, upon her request, to a Costco

10 facility in Colorado in 2000.

11

Ellis alleges that throughout her time with the company, she repeatedly advised Costco

12 managers of her interest in a promotion to General Manager as well as a willingness to consider a

13 promotion located anywhere in the country. Due to defendant’s failure to post or otherwise notify

14 employees of management openings, Ellis was unable to apply for specific promotional

15 opportunities. In a letter dated August 29, 2002, Ellis expressed her “burning desire to help the

16 company be successful” and to advance within the company, stating that she wanted to learn how

17 selection of General Managers worked, where she stood as a candidate for promotion, and what she

18 might need to do to become a General Manager. Kadue Dec. (Oct. 18, 2004), Exh. C. She wrote:

19 “If there is not an opportunity [in this region], would you consider recommending me to another

20 Regional VP? I would love to stay in Colorado, but I love Southern California and Texas as well. I

21 would definitely consider any promotional opportunity.” Id. She said that she was “trying to find

22 out where [she] fit in the Costco Wholesale picture.” Id. No promotional opportunities surfaced.

23

Plaintiff filed a charge of discrimination with the EEOC on or about October 30, 2002,

24 alleging failure to promote on the basis of gender. She received a Notice of Right to Sue in relation

25 to the charge. In 2004, she filed a second charge of discrimination with the EEOC, alleging

26 retaliation, including a disadvantageous warehouse transfer, in response to her first EEOC grievance.

27

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UNITED STATES DISTRICT COURT
For the Northern District of California

1

B. Plaintiff Leah Horstman

2

Plaintiff Horstman was hired for the position of caller in defendant’s warehouses in 1981.

3 She held numerous positions over the course of her twenty-three year employment with Costco,

4 including fifteen years in management positions. The full span of her employment was within

5 Costco’s San Diego Region. Horstman EEOC Aff. at 1. She remained an employee of defendant

6 until 2004, most recently as a Receiving Manager in the La Mesa warehouse.

7

Horstman alleges that she informed Costco of her availability and interest in promotion to

8 the position of Assistant Manager, and she may have advised Costco of her willingness to relocate

9 outside of the San Diego area or outside of California. Due to defendant’s failure to post openings

10 or use a standardized application procedure, she did not apply for specific positions. Plaintiff filed a

11 charge of discrimination with the EEOC and the California Department of Fair Housing and

12 Employment on or about October 11, 2003 and subsequently received a Notice of Right to Sue in

13 relation to the charge.

14

C. Plaintiff Elaine Sasaki

15

In 1985, plaintiff Elaine Sasaki began her twenty-year career with Costco as a front-end

16 cashier. From 1995–96, Sasaki worked in Livermore, California as an administrative assistant to the

17 Regional Vice Presidents of the Bay Area Region. In 1996, Sasaki was promoted to Assistant

18 Manager, a position she still holds today. Other than a one-year stint at a warehouse in Texas,

19 Sasaki’s employment has been within Costco’s Bay Area Region, in several different warehouses.

20

Sasaki alleges that her upward rise at Cosco has been thwarted by gender discrimination.

21 Sasaki has repeatedly expressed her interest in promotion to a General Manager position by

22 speaking to Vice Presidents and Senior Vice Presidents within her region as well as to management

23 in other regions. See Sasaki Dec. ¶ 3. On the basis of representations that growth in the Texas

24 region promised better prospects for promotion, she transferred there in 2001. She returned to the

25 Bay Area Region one year later, again on the basis of representations that growth would provide

26 greater opportunities for advancement. In September 2003 Sasaki wrote a letter to Judy Vadney,

27 Director of Human Resources in Issaquah, Washington, expressing her concern that she was being

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 overlooked for promotion due to her gender. Sasaki Dep. at 19:1–7. Due to defendant’s failure to

2 post openings or use an application procedure, she did not apply for specific positions. She filed a

3 discrimination charge with the EEOC on March 1, 2005 and received a Notice of Right to Sue in

4 relation to the charge.

5 D. Costco Wholesale Corporation

6

Defendant is a corporation headquartered in Issaquah, Washington, which operates “cash-

7 and-carry membership warehouses” throughout the United States. Def’s Mot. (Oct. 15, 2004) at 2.

8

1. Costco’s Organization Structure and Management Hierarchy

9

Costco’s nationwide operations are divided into three divisions (Southwest, Eastern, and

10 Northern/Midwest), each governed by an Executive Vice President. See Zook Dec. ¶ 2, Zook Dec.,

11 Exh. A. These divisions are in turn divided into regions managed by Senior Vice Presidents. Id.

12 Each Costco region is broken down into districts, led by District Vice Presidents, which are in turn

13 composed of numerous Costco warehouses. Zook Dec., Exh. A. Each Costco warehouse is staffed

14 with a General Manager, multiple Assistant Managers, and a team of staff level, area, and

15 department managers. Def.’s Mot. (Oct. 15, 2004) at 2–3.

16

2. Costco’s Promotion Practices

17

Plaintiffs allege that Costco does not use postings and/or an application process for open

18 Assistant and General Manager positions, but promotional practices are standardized across the

19 country. Zook Dep. at 131:8–20, 133:1–9; Hoover Dep. at 117:17–23. The decision to promote a

20 lower level manager to an Assistant Manager is made by a warehouse’s General Manager, with the

21 District Vice President “also involved.” See Zook Dep. at 132:8–16. The Senior Vice Presidents

22 are informed of the choice, though they do not make the “actual selection.” See Hoover Dep. at

23 92:5–11 (describing that as Senior Vice President, he “might put [in] my two cents, but basically I

24 just want to make sure they’ve done their homework”). Executive Vice Presidents in the divisional

25 headquarters need not approve promotions to Assistant Manager. See Zook Dep. at 132:18–20.

26

The decision to promote an Assistant Manager to a General Manager is made by the General

27 Manager who has overseen the Assistant Manager’s work and the District Vice President, with

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 “some input and involvement” from the Senior Vice President overseeing their region. See Zook

2 Dep. at 133:23–134:2; Hoover Dep. at 94:7–10. The Senior Vice President notifies the Executive

3 Vice President overseeing his region when a selection for General Manager has been made, but

4 Executive Vice Presidents are simply “made aware” of the choice in order to “sign off” on the

5 decision. Zook Dep. at 134:8, 135:10–17.

6

7 II. Procedural History

8

Plaintiff Ellis filed the present action on August 17, 2004. Pursuant to stipulations, plaintiff

9 filed an amended complaint on November 2, 2004 adding plaintiff Leah Horstman and a second

10 amended complaint on March 23, 2005 adding plaintiff Elaine Sasaki. On behalf of themselves and

11 a class of similarly-situated employees, plaintiffs charge that defendant has a pattern and practice of

12 gender discrimination, including failing to consider women for promotional opportunities on an

13 equal basis with men; refusing to provide timely and accurate notice of employment opportunities;

14 relying on subjective, arbitrary, and gender-based decisionmaking by a nearly all-male managerial

15 force; promoting similarly-situated and less-qualified males more rapidly; and representing

16 inconsistent requirements for promotion. Plaintiff Ellis also alleges retaliation for filing

17 discrimination charges. The court denied defendant’s motion to transfer this action pursuant to 28

18 U.S.C. section 1404(a) on May 31, 2005.

19

Now before the court is plaintiffs’ motion for class certification pursuant to Rules 23(a) and

20 23(b)(2) or, in the alternative, for a hybrid class. As part of their motion, plaintiffs request that the

21 court exercise its discretion to permit class members to opt-out of the class and direct that class

22 members be provided notice. Additionally, plaintiffs request approval of their proposed trial plan

23 and appointment of class counsel. In response, defendant filed motions to strike the declarations of

24 plaintiffs’ experts, Dr. Bendick, Dr. Drogin, and Dr. Reskin.

25

26

27

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 LEGAL STANDARD

2 I. Motion for Class Certification

3

A party seeking to certify a class must satisfy the four prerequisites enumerated in Rule

4 23(a), as well as at least one of the requirements of Rule 23(b). Under Rule 23(a), the party seeking

5 class certification must establish: (1) that the class is so large that joinder of all members is

6 impracticable (i.e., numerosity); (2) that there are one or more questions of law or fact common to

7 the class (i.e., commonality); (3) that the named parties’ claims are typical of the class (i.e.,

8 typicality); and (4) that the class representatives will fairly and adequately protect the interests of

9 other members of the class (i.e., adequacy of representation). Fed. R. Civ. P. 23(a). In addition to

10 satisfying these prerequisites, parties seeking class certification must show that the action is

11 maintainable under Rule 23(b)(1), (2) or (3). See Rule 23(b); Amchem Products, Inc. v. Windsor,

12 521 U.S. 591, 614 (1997). Rule 23(b)(2) permits class actions for declaratory or injunctive relief

13 where the party opposing the class “has acted or refused to act on grounds generally applicable to

14 the class.” Rule 23(b)(2).

15

The party seeking class certification bears the burden of establishing that the requirements of

16 Rules 23(a) and 23(b) have been met. See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180,

17 1188 (9th Cir. 2001), amended by 273 F.3d 1266 (9th Cir. 2001); Hanon v. Dataproducts Corp., 976

18 F.2d 497, 508 (9th Cir. 1992). However, in adjudicating a motion for class certification, the court

19 accepts the allegations in the complaint as true so long as those allegations are sufficiently specific

20 to permit an informed assessment as to whether the requirements of Rule 23 have been satisfied.

21 See Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975), cert. denied, 429 U.S. 816 (1976).

22 The merits of the class members’ substantive claims are generally irrelevant to this inquiry. Eisen v.

23 Carlisle & Jacquelin, 417 U.S. 156, 177–78 (1974); Moore v. Hughes Helicopters, Inc., 708 F.2d

24 475, 480 (9th Cir. 1983).

25

26 II. Motion to Strike

27

Though a “rigorous examination” of 23(a) factors is required for class certification, General

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982), the district court is not to inquire into

2 the merits of the suit during the certification process. Eisen, 417 U.S. at 177. However, the court

3 may properly consider the merits to the extent that they overlap with class certification issues. See

4 In re Initial Public Offering Sec. Litig., No. 05-3349-CV, 2006 WL 3499937 (2d Cir. Dec. 5, 2006).

5 An evidentiary hearing on class certification is not required, Bouman v. Block, 940 F.2d 1211, 1232

6 (9th Cir. 1990), but the court should assess all relevant evidence to determine whether each of the

7 Rule 23 requirements have been met. At this early stage, robust gatekeeping of expert evidence is

8 not required; rather, the court must should ask only if expert evidence is “useful in evaluating

9 whether class certification requirements have been met.” Dukes v. Wal-Mart, Inc., 222 F.R.D. 189,

10 191 (N.D. Cal. 2004) (Jenkins, J.) (Dukes II). The requirements of relevance and reliability set forth

11 in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993), serve as useful guideposts but

12 the court retains discretion in determining how to test reliability as well as which expert’s testimony

13 is both relevant and reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

14

15 DISCUSSION

16

17 I. Motion for Class Certification

18

Plaintiffs seek certification of a nationwide class of current and former female employees

19 who have been denied promotion to GM or AGM or denied Senior Staff jobs important to AGM

20 promotion since January 3, 2002.3 They ask the court to certify their claims for damages as well as

21 injunctive relief under Rule 23(b)(2).

22

23

A. Subject Matter Jurisdiction

24

In various parts of its opposition to plaintiffs’ motion for class certification, Costco raises

25 two arguments to suggest that the court does not have subject matter jurisdiction over various

26 aspects of plaintiffs’ claims. The court addresses Costco’s exhaustion and standing arguments as an

27 initial matter.

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UNITED STATES DISTRICT COURT
For the Northern District of California

1

1. Exhaustion

2

The court may only assert jurisdiction over Title VII claims where plaintiff has exhausted her

3 administrative remedies by filing an EEOC charge. Serpe v. Four-Phase Sys., Inc., 718 F.2d 935,

4 936 (9th Cir. 1983). Defendant alleges that plaintiffs have not exhausted their EEOC claims with

5 respect to claims made on behalf of employees denied Marketing Manager positions because

6 plaintiff Ellis’s EEOC charge did not include such allegations. Ellis’s EEOC charge included

7 allegations about gender discrimination in promotions to area manager, senior manager, assistant

8 manager and general manager positions. Ellis Dec., Exh. 4. Plaintiff argues that the EEOC

9 investigation was not limited to GM positions but to promotion decisions concerning senior area

10 managers, AGMs and GMs. See Kadue Letter to EEOC, Larkin Reply Dec., Exh. 55. Plaintiffs also

11 contend that even if the Ellis charge was limited to promotions to GM, these other promotion

12 decisions are reasonably related to the allegations contained in the EEOC charge. Under Ninth

13 Circuit precedent, the court is required to construe the EEOC charge “with the utmost liberality.”

14 EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994) (quoting Kaplan v. International

15 Alliance of Theatrical & Stage Employees, 525 F.2d 1354, 1359 (9th Cir.1975)). In this case, Ellis’s

16 EEOC charge provided “adequate notice” to Costco that the EEOC investigation would include

17 promotion decisions concerning all area managers, including Senior Staff positions such as

18 Merchandising Managers (“MMs”) as well as AGMs and GMs. Farmer Bros., 31 F.3d at 899.

19 Indeed, the EEOC charge alleged discriminatory promotion processes in all “salaried management

20 positions.” Ellis Dec., Exh. 4. Ellis’s claim of discrimination in promotion to GM is like and

21 reasonably related to the claims of gender discrimination in promotion to MM and AGM. Brown v.

22 Puget Sound Elec. Apprenticeship and Training Trust, 732 F.2d 726, 729 (9th Cir. 1984). Defendant

23 also claims that certification of a class of plaintiffs who were denied AGM promotions before

24 December 6, 2003 would be improper because that claim was not exhausted until plaintiff

25 Horstmann filed her charge. Because the Ellis charge included these promotion decisions, the court

26 rejects this argument. Therefore, the court concludes that plaintiff has properly exhausted

27 administrative remedies and the court has jurisdiction to hear the class certification motion.

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UNITED STATES DISTRICT COURT
For the Northern District of California

1

2. Standing

2

Buried in its opposition on Rule 23 grounds, Costco makes two standing arguments. First, it

3 suggests that none of the named plaintiffs has standing to bring a suit for injunctive relief.

4 According to Costco, Ellis and Horstmann, as former Costco employees, do not have standing to

5 bring a suit for injunctive relief which would affect only current employees. See Opp. to Class Cert.

6 at 24. The Ninth Circuit recently rejected a similar argument in Bates v. UPS, Inc., No. 04-17295,

7 2006 WL 2864438, at *6 (9th Cir. Oct. 10, 2006). “An individual thus influenced by an allegedly

8 discriminatory policy to avoid humiliating circumstances—here, languishing in a dead-end

9 position—is still aggrieved by that policy if [s]he maintains a continuing interest in the benefit to

10 which access has been denied—here, the opportunity to be individually assessed for the [GM]

11 position.” Id. To hold that employees must continue to work in jobs where they face discrimination

12 in order to challenge the discrimination would pervert Article III’s injury-in-fact requirement.

13

Costco further contends that Sasaki, who is currently an AGM, does not have standing to

14 bring a claim for injunctive relief to help class members attain positions as AGMs. The court finds

15 this argument unpersuasive. Courts have repeatedly held that “an unsuccessful applicant for one

16 particular job can presumably challenge discriminatory hiring for different job categories where the

17 primary practices used to discriminate in the different categories are themselves similar.” Hartman v.

18 Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994); see also Dukes I, 222 F.R.D. at 167. Therefore,

19 Sasaki has standing to challenge the promotion practices for the AGM position.

20

Costco also makes the argument that Sasaki lacks standing with respect to GM promotions,

21 because Costco has shown that there is no gender disparity in promotions to GM. Costco further

22 contends that none of the plaintiffs have standing because the only women who are under-promoted,

23 according to Costco’s analysis, are women who lacked MM experience. None of the named

24 plaintiffs suffered this fate, and so Costco argues they do not have standing. Def’s Opp. Class Cert.

25 at 24. These arguments would require the court to delve into the merits of the evidence on gender

26 disparity at the GM level. Such an inquiry is improper at the class certification stage. See Eisen, 417

27 U.S. at 177. To establish standing, Sasaki must satisfy the Article III requirements of injury-in-fact,

28

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61(1992) (holding

2 that a plaintiff must fulfill three requirements—injury-in-fact, causation, and redressability—to

3 establish Article III standing). Here, Sasaki has alleged that she has not been promoted to GM as a

4 result of gender discrimination in the promotion process at Costco. SAC ¶ 48–49. This satisfies the

5 injury-in-fact requirement. She further alleges that the injury is caused by Costco’s subjective

6 promotion processes, thus satisfying the causation requirement. Finally, she contends that a grant of

7 injunctive relief would address her complaint. Therefore, the court finds that Sasaki has standing to

8 challenge the GM promotion process.

9

B. Rule 23(a) Requirements

10 As noted above, a party seeking class certification must establish that the numerosity,
11 commonality, typicality and adequacy of representation requirements of Rule 23(a) have been met.
12 The court addresses each of these requirements below.

13

14

1. Numerosity

15

Pursuant to Rule 23, the class must be “so numerous that joinder of all members is

16 impracticable.” Fed. R. Civ. P. 23(a)(1). As a general rule, classes numbering greater than 41

17 individuals satisfy the numerosity requirement. See 5 James Wm. Moore et al., Moore’s Federal

18 Practice § 23.22[1][b] (3d ed. 2004). Although plaintiffs need not allege the exact number or

19 identity of class members to satisfy the numerosity prerequisite, mere speculation as to the number

20 of parties involved is not sufficient to satisfy the numerosity requirement. See Freedman v.

21 Louisiana-Pac. Corp., 922 F. Supp. 377, 398 (D. Or. 1996); 7 Wright, Miller, & Kane, Federal

22 Practice and Procedure § 1762 (3d ed. 1995). Plaintiffs allege that the potential class size is greater

23 than 700 people, including all women employed by Costco in Senior Staff and Assistant General

24 Manager positions since the end of 2001. Mot. for Class Cert. at 23. They base these estimates on

25 the information supplied by defendant. Drogin Dec. ¶ 5. Defendants do not contest this assertion.

26 Certainly, this large number of putative class members makes joinder impracticable. The court finds

27 that plaintiffs have satisfied their burden, and thus, this requirement of Rule 23 is satisfied.

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UNITED STATES DISTRICT COURT
For the Northern District of California

1

2. Commonality

2

To fulfill the commonality prerequisite of Rule 23(a)(2), plaintiff must establish that there

3 are questions of law or fact common to the class as a whole. Rule 23(a)(2) does not mandate that

4 each member of the class be identically situated, but only that there be substantial questions of law

5 or fact common to all. See Harris v. Palm Spring Alpine Estates, Inc., 329 F.2d 909, 914 (9th Cir.

6 1964). Individual variation among plaintiffs’ questions of law and fact does not defeat underlying

7 legal commonality, because “the existence of shared legal issues with divergent factual predicates is

8 sufficient” to satisfy Rule 23. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).4 To

9 the extent that the parties’ commonality arguments overlap with the merits, the court has evaluated

10 all relevant evidence to determine whether commonality has been established.

11 The parties have staged a battle of the experts over the issue of commonality. Plaintiffs offer
12 various types of evidence in support of their commonality argument. First, they offer the declaration
13 of Dr. Richard Bendick to show that women throughout Costco are underrepresented in the
14 challenged positions relative to female employees in similar positions at comparable companies.
15 Second, they rely on the declaration of Dr. Richard Drogin to demonstrate that female employees at
16 Costco are promoted at a slower rate and are underrepresented at the AGM and GM levels relative to
17 their male peers. Third, they present the analysis and conclusions of Dr. Barbara Reskin to show
18 that Costco has a pervasive culture of gender stereotyping and paternalism. Fourth, they offer
19 evidence to demonstrate the uniform nature of the promotion practices for AGM and GM positions
20 and how these processes disadvantage women as well as the anecdotal experiences of the named
21 plaintiffs to show this effect. Finally, they present evidence to suggest that Costco itself considers
22 the underrepresentation of women in senior management an issue common to the entire company.
23

24

In response, Costco offers declarations of its own experts. Dr. Ali Saad’s declaration,

25 according to Costco, demonstrates that women are not underrepresented at Costco and that any

26 gender disparities, if they exist, are confined to two regions of Costco, thus undermining plaintiff’s

27 claims of commonality. Costco argues, based on the declarations of Dr. Margaret Stockdale and Dr.

28 Casey Mulligan, that gender disparities, if they exist, are based upon factors, such as women’s lack

11

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 of interest in jobs requiring early morning hours, which are unrelated to Costco’s culture and

2 promotion processes. Finally, Costco moves to strike the declarations of plaintiffs’ three experts and

3 offers the declarations of Dr. Landy, Dr. Saad, and Dr. Mulligan to challenge the relevance and

4 reliability of plaintiffs’ experts’ conclusions. The court will review each of these arguments in turn.

5

To demonstrate commonality, plaintiffs must show at least one significant issue of fact or

6 theory of law common to the entire class. Hanlon, 150 F.3d at 1020. On the basis of the evidence

7 presented, the court is satisfied that plaintiffs have done so. The court examines the experts’

8 opinions not to engage in a merits evaluation of the opinions but only to determine whether their

9 testimony is probative of an inference of discrimination. Id. First, plaintiffs have provided sufficient

10 evidence of gender disparities in the promotion of women to GM and AGM to raise a common issue

11 of triable fact. Plaintiffs have presented two categories of statistical evidence which raise the

12 inference of gender-based disparities in management positions throughout Costco. First, Dr.

13 Bendick’s analysis, while not without its flaws, presents a sufficient foundation for his conclusion

14 that women are underrepresented at these positions relative to women at comparable companies. He

15 bases his conclusion primarily on statistical benchmarking analysis in which he compares the

16 representation of women in Costco’s management positions to that at other retailers. Bendick Dec.

17 ¶¶ 7 & 9. He suggests that Costco’s representation of women managers is lower than its peers based

18 on each of five bench-marking studies and that “women are available for, qualified for, and

19 interested in Costco-like retail management jobs in substantial numbers.” Id. ¶¶ 30–31, 34. Second,

20 Dr. Drogin performed regression analyses based upon a feeder pool of qualified female candidates

21 for the AGM and GM positions. Drogin Dec. ¶ 3. He concluded that there were statistically

22 significant internal gender-based disparities in both the AGM and GM positions based on his

23 analysis of aggregate, nationwide data. Drogin Dec. ¶ 25. Costco challenges the propriety of using

24 aggregate data; however, as noted infra, these arguments attack the weight of the evidence and not

25 its admissibility. Dr. Drogin further concludes that female employees at Costco take longer to be

26 promoted to AGM; however, as the court notes below, the analysis on which this conclusion is

27 based is unreliable and therefore stricken from the record. The court has not considered this

28

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 argument.

2

In response, Costco offers the testimony of Dr. Saad to demonstrate that no gender disparities

3 exist in promotions to AGM and GM. Dr. Saad performed a similar statistical analysis to that of Dr.

4 Drogin with certain differences, primarily that Dr. Saad’s analysis was based on regional rather than

5 national data and that Dr. Saad’s analysis controlled for certain variables including Senior Staff

6 experience and leaves of absence. Saad Dec. ¶¶ 34, 43, 50–52, Exh. 11. Dr. Saad concludes that

7 there are no statistically significant gender disparities in the GM and AGM positions at Costco. As a

8 threshold matter, the court concludes that Dr. Saad’s analysis is relevant and reliable for the

9 purposes of commonality and notes that plaintiffs have not raised any significant challenges in this

10 regard. However, Dr. Saad’s analysis has presented an alternative approach but it has not

11 discredited Dr. Drogin’s results or methods. See Barefield v. Chevron U.S.A., Inc., No. C 86-2427,

12 1987 WL 65054 (N.D. Cal. Sept. 9, 1987) (Henderson, J.) (rejecting challenge to plaintiffs’ statistics

13 at class certification stage when objection went to the merits of the case). Plaintiffs expert

14 declarations, while questioned by defendants, are strong enough to establish commonality on this

15 issue. Therefore, the plaintiffs have presented compelling evidence of gender disparities at this time

16 sufficient to demonstrate class-wide impact.

17 Plaintiffs also argue that this class-wide impact is caused by uniform promotion practices and
18 Costco’s common culture of gender stereotyping and paternalism. First, plaintiffs argue that
19 Costco’s promotion process is based on company-wide standards and policies. Costco has a
20 consistent promotion-from-within policy. Costco has no written selection criteria for promotion to
21 GM and AGM nor any formal notification or application procedures for those positions. This
22 process involves decision-making by central management, including the maintenance of a Green
23 Room at corporate headquarters where the photographs of potential promotees are displayed.
24 Indeed, there was a conscious decision made not to post vacancies for GM and AGM. See Sinegal
25 Dep. 123:22–124:2, 124:9–16, Exh. 1. Defendants argue that promotion decisions to AGM and GM
26 vary by region and that promotion decisions to AGM are made at the store level. However, these
27 assertions are unsupported and do not undermine commonality. Rather, the evidence before the
28

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 court indicates that officers at the regional and corporate levels are involved in promotion decisions.

2 The absence of written criteria for promotion as well as other evidence that the process is subjective

3 satisfies the court that there is a policy common to the class in this regard. See Bates v. UPS, 204

4 F.R.D. 440, 448 (N.D. Cal 2001) (Henderson, J.).

5

Plaintiffs further argue that this subjectivity has a gender-differentiated impact on the

6 promotion to AGM and GM. To support this contention, they offer the conclusions of Dr. Barbara

7 Reskin, who concludes that Costco’s unwritten, subjective system for promotion is vulnerable to

8 bias. She relies on social science research on cognitive bias to connect these findings to Costco’s

9 specific policies and practices. Resnik Dec. ¶¶ 3 & 9. She further concludes that Costco has a

10 common and “unifying” culture based on gender stereotypes, in-group preferences and paternalism.

11 Id. ¶¶ 12, 15, 45, 60. Plaintiffs also provide declarations from the named plaintiffs, each of whom

12 explain, in her view, how the Costco culture and subjective promotion processes discriminate

13 against women. See, e.g., Sasaki Dec. ¶¶ 36, 41, 42. Costco disputes the relevance and reliability of

14 Dr. Reskin’s study and proffers its own view of Costco’s culture. As the court discusses more fully

15 infra, the defendants’ objections to Dr. Reskin’s study do not convince the court that it is irrelevant

16 or unreliable. To support its view of Costco’s culture, Costco offers the analysis of two

17 experts—Dr. Frank Landy and Dr. Casey Mulligan. Dr. Landy’s declaration serves primarily to

18 attack the relevance and reliability of Dr. Reskin’s analysis, which the court addresses infra. Dr.

19 Landy also offers a different view of Costco’s promotion practices. He argues that the aspects of the

20 process which Dr. Reskin characterizes as subjective are in fact representative of best practices in

21 the industry. Landy Dec. ¶¶ 9–12.

22 In addition to criticizing the applicability of Dr. Reskin’s study to Costco’s promotion
23 practices, Costco argues that gender disparities, if they exist, are attributable to the gender-
24 differentiated supply in the pool of qualified employees for AGM and GM positions. This supply
25 issue is not related to gender discrimination at Costco but is reflective of women’s differential
26 interest in jobs requiring works hours incompatible with family responsibilities. Mulligan Dec. ¶¶
27 80–82, 126. Costco’s expert, Dr. Stockdale, concludes on the basis of her review of the literature on
28

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 job attribute preferences and her knowledge of Costco’s culture that “[g]ender differences in interest

2 expressed for the merchandise manager position [a position considered to be a de facto requirement

3 for promotion to AGM] is a plausible explanation for the under-representation of women in upper

4 level warehouse management at Costco.” Stockdate Dec. at 5. What defendant has presented is an

5 argument that is common to the class, and, if anything, supports the commonality factor. In

6 evaluating all of the evidence presented, the court finds that plaintiffs have presented strong

7 evidence of a common culture at Costco which disadvantages women.

8

Finally, plaintiffs argue that Costco’s senior management had knowledge of the gender

9 disparity in the AGM and GM promotion processes and treated this disparity as a company-wide

10 issue. Plaintiffs document the BOLD Initiative at Costco, which was a 2000 company-wide program

11 to address the company-wide disparity in promotion to senior management. Matthews Dep. at

12 111:20–113:24, see also 2001 BOLD Initiative Focus Group Notes, Pl’s Mot. for Class Cert., Exh. 3.

13 Moreover, there is some evidence that Costco responded to the recommendations made as a result of

14 the diversity studies, including posting for lower level management positions but not AGM and GM

15 positions. Sinegal Dep. 118:1–11. Defendant has not disputed this assertion. Costco’s treatment of

16 gender disparities in promotion to Senior Staff as well as AGM and GM positions as a company-

17 wide issue establishes a common question of fact.

18 In sum, plaintiffs have satisfied the court that there are common issues of fact and theories of
19 law as to gender disparities in promotions to AGM and GM, the nature of Costco’s culture and its

20 effect on women. Therefore, the court finds that plaintiffs have satisfied the commonality
21 requirement.
22

23

3. Typicality

24

Under Rule 23(a)(3), the claims of the representative plaintiff must be typical of the claims

25 of the class. To be considered typical for purposes of class certification, the named plaintiff need

26 not have suffered an identical wrong. See Hanlon, 150 F.3d at 1020. Rather, the class

27 representative must be part of the class and possess the same interest and suffer the same injury as

28 15

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1 the class members. See Falcon, 457 U.S. at 156.

2

Costco argues that the named plaintiffs lack typicality because each of them presents unique

3 claims that are atypical of the class and because Costco intends to present a defense unique to the

4 gender discrimination claim of each of the named plaintiffs. At the outset, the court rejects Costco’s

5 contention that the named plaintiffs have unique claims. There are no allegations in the complaint

6 that would suggest that Sasaki or Horstman have brought sexual harassment claims as part of this

7 action nor that Ellis has asserted a breach of contract claim. Ellis’s claim of retaliation is part of and

8 related to her sex discrimination claim and therefore “reasonably co-extensive with those of absent

9 class members.” Hanlon, 150 F.3d at 1020. Nor are Costco’s allusions to unique defenses sufficient

10 to defeat typicality. The court need not address the merits of each of the proposed defenses; rather,

11 it is enough to say that as a general matter, individualized defenses do not defeat typicality. See

12 Hanon v. Dataproducts Corp., 976 F.2d 497, 508–09 (9th Cir. 1992).

13 The class representatives have demonstrated that they will present the same type of legal and
14 remedial theory as the unnamed class members, namely that the subjective processes for promotion

15 to AGM and GM positions discriminate against female employees. The experiences of each of the
16 named plaintiffs with the promotion processes at Costco are typical.
17

18

Thus, plaintiffs satisfy the requirements of Rule 23(a)(3).

19

4. Adequacy of Representation

20

Rule 23(a)(4) dictates that the representative plaintiff must fairly and adequately protect the

21 interests of the class. To satisfy constitutional due process concerns, unnamed class members must

22 be afforded adequate representation before entry of a judgment which binds them. See Hanlon, 150

23 F.3d at 1020 (citing Hansberry v. Lee, 311 U.S. 32, 42–43 (1940)). “Resolution of two questions 24 determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of 25 interest with other class members and (2) will the named plaintiffs and their counsel prosecute the

26 action vigorously on behalf of the class?” See Hanlon, 150 F.3d at 1020.

27

Costco argues that Ellis and Horstmann, as former Costco employees,5 are inadequate class

28

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1 representatives because they have little incentive to seek injunctive relief on behalf of current

2 employees. Similarly, Costco contends that Sasaki, who is currently an AGM, has little incentive to

3 seek injunctive relief that would benefit class members seeking promotions to AGM positions. To

4 serve as representatives, the named plaintiffs must have similar but not identical interests to those in

5 the class. Dukes I, 222 F.R.D. at 168. Were the class representatives to include only former

6 employees, who would not stand to benefit from injunctive relief, the representatives might have a

7 conflict of interest with members of the class. Cf. Wagner v. Taylor, 836 F.2d 578, 595 (D.C. Cir.

8 1987) (finding inadequate representation where the sole named plaintiff, a supervisor, purported to

9 represent a class of both supervisory and non-supervisory employees). However, the named

10 plaintiffs include both current and former employees. While their interests are not identical, Costco

11 has not presented any arguments to suggest that their interests are adverse to those of the unnamed

12 class members. The court, therefore, concludes that there are no conflicts of interest between the

13 class representatives and the other members of the class.

14

Costco also attacks Ellis’s credibility on the basis of reports of her alleged mistreatment of

15 employees at Costco and alleged misrepresentation on her job application. It is within the court’s

16 discretion to determine that plaintiff is not credible and that as a result certification should be

17 denied. Hall v. Nat. Recovery Sys., Inc. No. 96-132-CIV-T-171, 1996 WL 467512, at *5 (M.D. Fla.

18 Aug. 9, 1996). The allegations against Ellis, if proven true, would not rise to the level of prejudice

19 to the unnamed class members. In the Hall case, the court looked to the totality of the evidence

20 presented, including convictions for grand theft and armed robbery, to determine that the plaintiff

21 would lack credibility. There, the court had additional concerns about the named plaintiff’s transient

22 nature—the plaintiff had been in and out of jail—and his ability to reliably perform the duties of a

23 named plaintiff. Even if defendant’s allegations against Ellis were proven, they would not support a

24 finding of inadequacy of representation.

25 Ellis, Hartsmann and Sasaki have indicated that they are willing to take on representation of
26 the class. Moreover, it is clear that plaintiff’s counsel is competent, nor does defendant dispute this.
27 Therefore, the court concludes that plaintiff has satisfied the adequacy of representation
28

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1 requirement.

2

3 C. Rule 23(b)(2) Requirements
4

5

In addition to meeting the conditions imposed by Rule 23(a), a party seeking certification of

6 a class under Rule 23(b)(2) also bears the burden of establishing that “the party opposing the class

7 has acted or refused to act on grounds generally applicable to the class, thereby making” injunctive

8 relief appropriate. Fed. R. Civ. P. 23(b)(2). Class actions certified under Rule 23(b)(2) are “not

9 limited to actions requesting only injunctive or declaratory relief, but may include cases that also

10 seek monetary damages” where the claim for injunctive relief is the primary claim. Probe v. State

11 Teachers’ Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986). Rule 23(b)(2) certification of a class seeking

12 both injunctive relief and damages is proper only where the claim for injunctive relief is the

13 predominant form of relief sought by the class. The court addresses these requirements below.

14

Plaintiffs seek compensatory damages, punitive damages, injunctive relief, declaratory relief

15 and backpay. SAC ¶¶ 2, 4–8. Costco argues that plaintiffs’ claims for compensatory damages

16 require individualized determinations which preclude certification under Rule 23(b)(2)’s

17 predominance requirement. However, the Ninth Circuit has explicitly rejected such an argument in

18 Molski v. Gleich, 318 F.3d 937, 950 (9th Cir. 2003).6 There, the court refused to adopt the theory

19 that a claim for compensatory damages would necessarily predominate for the purposes of Rule

20 23(b)(2). Indeed, the court specifically noted that such a proposition “holds troubling implications

21 for the viability of future civil rights actions, particularly those under the Civil Rights Act of 1991.”

22 Id. (citation omitted). Instead, the Ninth Circuit required a case-by-case determination of

23 predominance, focusing on the motives of the named plaintiffs and the nature of the defendants’

24 actions.

25

For a class to be certified under Rule 23(b)(2), “[i]t is sufficient if class members complain

26 of a pattern or practice that is generally applicable to the class as a whole[,] [e]ven if some class 27 members have not been injured by the challenged practice.” Walters v. Reno, 145 F.3d 1032, 1047 28
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1 (9th Cir. 1998). To determine whether the claim for injunctive relief predominates, the court must

2 look to the language of Rule 23(b)(2) in light of the individual circumstances presented in the case

3 as well as the intent of the plaintiffs in bringing the suit. See Molski, 318 F.3d at 950. The Second

4 Circuit elaborated further in Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir.

5 2001), a case which the Ninth Circuit cited with approval in Molski, 318 F.3d at 950, n.15.

6

[A] district court should, at a m inimum, satisfy itself of the following: (1) even in the

7

absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory

8

relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.

9 Robinson, 267 F.3d at 164. Here, the named plaintiffs have satisfied the court that their primary

10 motivation in filing this action is injunctive relief. The statements made by plaintiff Horstmann
11 satisfy the court that reasonable plaintiffs in general and these named plaintiffs in particular would
12 bring this suit to obtain injunctive relief even in the absence of monetary recovery. See Horstmann

13 Dep. at 359:10–360:11 (describing Horstmann’s intentions in pursuing this litigation); Ellis Dec. ¶
14 26 (outlining Ellis’s primary goals in her decision to become named plaintiff); Sasaki Dec. ¶ 44

15 (offering Sasaki’s reasons for joining the lawsuit). Costco argues that the court should disregard
16 self-serving declarations but offers no other way of discerning plaintiff’s intent in bringing the suit
17 as required by the Ninth Circuit. Molski, 318 F.3d at 950. In addition to the declarations, plaintiffs’

18 request for injunctive relief provides evidence of their primary motivation: to change the promotion
19 practices at Costco. The injunctive relief sought by the plaintiffs in this case would produce far-

20 reaching changes at Costco and benefit class members in the same way. SAC ¶ 5. The equitable
21 relief resulting from plaintiffs’ claims for back-pay would similarly benefit the members of the class.
22 Moreover, injunctive relief would be both necessary and appropriate should the plaintiffs succeed in

23 proving their Title VII claims. Awarding damages to employees who have experienced sex
24 discrimination would be futile if the promotion processes were not changed. Plaintiffs have satisfied

25 the Molski requirements with respect to their claims for injunctive relief.
26

27

The court has discretion to certify plaintiffs’ claims for compensatory and punitive damages

28 claims under Rule 23(b)(2). Costco claims that the compensatory damages claims would require

19

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For the Northern District of California

1 individual determinations as to the harm suffered by each individual class member and thus preclude

2 class certification under Rule 23(b)(2). However, courts have certified claims for compensatory

3 damages under Rule 23(b)(2). See, e.g., Bates, 204 F.R.D. at 449 (certifying damages claims under

4 Rule 23(b)(2) and bifurcating liability and damages stages for trial to permit individual

5 determinations of damages to the extent necessary). The need for individualized determinations of

6 compensatory damages need not defeat certification under Rule 23(b)(2); rather, the court can

7 accommodate this need by bifurcating the trial into different phases.

8

The court similarly rejects Costco’s argument that punitive damages must be based on actual

9 harm to the plaintiffs and therefore require individualized determinations. Punitive damages claims

10 are suitable for certification under Rule 23(b)(2) because such a claim focuses on the conduct of the

11 defendant and not the individual characteristics of the plaintiffs. See Barefield v. Chevron, No. C

12 86-2427, 1988 WL 188433, *3 (N.D. Cal. Dec. 06, 1988) (Henderson, J.). Accordingly, the court

13 finds that the plaintiffs have satisfied the requirements for certification of their claims for damages

14 and injunctive relief under Rule 23(b)(2). Therefore, the court concludes that there is no reason to

15 consider plaintiffs’ request for certification of a hybrid class.

16 D. Notification and Opt-Out Option for Potential Class Members
17

18

Plaintiffs argue that this court should use its discretion to certify the class under Rule

19 23(b)(2) with an option for potential class members to opt out of the class. Rule 23(d) gives the

20 court discretion to make orders

21

(2) requiring, for the protection of t he members of the class or otherwise for the fair

conduct of the action, that notice be give n in such manner as the court m ay direct to

22

some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the oppor tunity of m embers to signify whether they consider the

23

representation fair and adequate, to intervene and present claim s or defenses, or

otherwise to come into the action . . . (5) dealing with similar procedural matters.

24

25 Fed. R. Civ. Proc. 23(d)(2), 23(d)(5). Like the instant action, Molski, 318 F.3d at 947, contemplated

26 certification for a class of plaintiffs under 23(b)(2) who sought injunctive relief and damages. Id. In

27 Molski the district court certified the class under 23(b)(2) but did not provide notice or an opt-out

28 20

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1 option to other potential class members. Id. The court found that the lack of notice and an opt-out

2 option presented due process concerns. Id. The court considered this issue in the context of the

3 Supreme Court’s holding of Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), which suggested, but

4 stopped short of adopting a per se rule that any action seeking monetary damages is only certifiable

5 under Rule 23(b)(3). Id. at 948–49. Because the Ninth Circuit still allows “incidental” monetary

6 damages claims in 23(b)(2) actions, the application of a per se rule for such damages is

7 inappropriate. Id. at 949. Consequently, this court pursuant to its discretion under Rule 23(d),

8 hereby orders notice and the opportunity to opt out of the class be provided to potential class

9 members.

10

E. Trial Plan

11 The parties’ request for the court to approve a trial plan is premature at this point. Rather, it
12 is necessary for the parties to establish a date for completion of discovery. The court requests that

13 the parties submit a proposed joint discovery plan for the court’s approval.
14

15

In sum, the court grants plaintiffs’ motion for class certification under Rule 23(a) and

16 23(b)(2) for their claims for damages and injunctive relief. It further orders that potential class 17 members be given notice of their ability to opt-out of the class, and it declines to rule on the parties’ 18 proposed trial plans at this time.

19

20 II. Motion for appointment of class counsel

21

Federal Rule 23(g) requires the court to appoint plaintiffs’ counsel in a class action. Fed. R.

22 Civ. P. 23(g). Plaintiffs request that Brad Seligman and Jocelyn Larkin of the Impact Fund; Bill

23 Lann Lee and James Finberg of Lieff, Cabraser, Heimann & Bernstein and Steven Stemerman and

24 Elizabeth Lawrence of Davis, Cowell & Bowe represent plaintiffs’ class in this action. The court is

25 confident in the collective and individual abilities of Mr. Seligman, Ms. Larkin, Mr. Stemerman, Ms.

26 Lawrence, Mr. Lee and Mr. Finberg to fairly and adequately represent the class. Together counsel

27 have decades of class action and employment discrimination experience, and adequate resources to

28

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1 pursue an action of this nature. Seligman Dec. at 2–5. Mr. Seligman has intimate knowledge of the

2 issues in this litigation as he has represented named plaintiff Shirley “Rae” Ellis since 2002 when

3 she first filed a complaint against Costco with the EEOC. Seligman Dec. at 5. The court appoints

4 Mr. Seligman, Ms. Larkin, Mr. Stemerman, Ms. Lawrence, Mr. Lee and Mr. Finberg as lead counsel

5 in this action.

6

Accordingly, the court grants plaintiffs’ motion for appointment of lead counsel.

7

8 9 III.

Motions to Strike Experts’ Declarations

10

Plaintiffs have offered the declarations of three experts—Dr. Marc Bendick, Dr. Richard

11 Drogin, and Dr. Barbara Reskin—in support of their motion for class certification to demonstrate

12 commonality. Costco has moved to strike the declarations of each of these experts on various

13 grounds. The court denies these motions with respect to the Bendick and Reskin Declarations and

14 grants in part and denies in part the motion to strike the Drogin Declaration for the following

15 reasons.

16

A. Dr. Marc Bendick

17

Labor economist Dr. Marc Bendick, Jr., Ph.D. is one of the experts retained by plaintiffs. Dr.

18 Bendick took data provided by plaintiff’s expert statistician, Dr. Richard Drogin, regarding the

19 representation of women in four levels of manager positions at Costco, and compared that data to

20 external benchmarks based on comparable positions at comparable companies (though how

21 comparable the comparator positions and companies are to Costco is a matter of debate). Dr.

22 Bendick used data from the 2000 Census and from EEO-1 Reports compiled by the EEOC, and

23 concluded that women are not employed by Costco in managerial positions at a rate comparable to

24 Costco’s competitors. Dr. Bendick based this conclusion on the fact that Costco’s rate of

25 representation of women managers fell short of its competitors in all five benchmarks. Dr. Bendick

26 concluded that this shortfall is due to Costco’s corporate culture and human resources practices, and

27 is not due to the unavailability of qualified and interested women.

28

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UNITED STATES DISTRICT COURT
For the Northern District of California

1

In support of class certification, and specifically the issue of commonality of the class,

2 plaintiffs have filed a declaration by Dr. Bendick that contains substantially all of Dr. Bendick’s

3 benchmarks and analysis, which Costco has moved to strike. Plaintiffs subsequently filed a

4 supplemental declaration by Dr. Bendick with their opposition to defendant’s motion to strike. Dr.

5 Bednick’s initial declaration contained five benchmarking studies; Dr. Bendick’s supplemental

6 declaration, which contains mostly rebuttal arguments to Costco’s experts, contains two new

7 benchmarking studies. Expert briefing has already been extensive, and class certification discovery

8 has closed; thus the court does not consider these two new benchmarking studies, as defendant has

9 had no opportunity to determine the basis for these studies through deposition or other discovery

10 methods. See generally Wong v. Regents of the Univ. of Cal., 379 F.3d 1097, 1104–05 (9th Cir.

11 2004) (trial court properly denied the addition of expert witnesses after the disclosure deadline

12 where necessity of the witnesses should reasonably have been anticipated).

13

Dr. Bendick has testified in numerous employment discrimination actions, and his

14 credentials as an expert are unassailed here. However, each of his benchmarking studies is attacked

15 by defendant. Defendant’s concerns with Dr. Bendick’s benchmarks are based on three fundamental

16 arguments: (1) that Dr. Bendick compared Costco with overbroad comparator categories that do not

17 account for Costco’s unique characteristics; (2) that Dr. Bendick failed to control for earnings when

18 comparing managers at Costco and elsewhere; and (3) that Dr. Bendick overlooked the purported

19 lack of interest of women generally for jobs that require early morning hours, such as Costco’s

20 Merchandise Manager position.

21 1. Overbroad Comparators
22

23

Dr. Bendick’s benchmarks are based upon two sets of data: the 2000 Census and EEO-1

24 Reports. EEO-1 Reports are annual reports filed with the EEOC by all private employers with 100

25 or more employees. In Benchmarks 1 and 2, Dr. Bendick compared Costco’s proportions of female

26 managers to those of General Merchandise Stores and All Retailers as defined by the 2000 Census.

27 In Benchmarks 3 and 4, Dr. Bendick compared Costco’s proportions of female managers to those of

28 General Merchandise Stores and All Retailers as defined in EEO-1 Reports from 1999 through 2003.

23

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 Dr. Bendick’s fifth Benchmark is based on EEO-1 data for individual establishments, including 167

2 separate Costco retail establishments, and compares Costco’s proportions of female managers to all

3 other General Merchandise Stores in the same labor markets as those 167 Costco establishments.

4

Costco asserts that General Merchandise Stores and All Retailers are inapt to present

5 relevant comparisons for purposes of commonality under Rule 23. General Merchandise Stores sell

6 multiple types of merchandise, and include department stores as well as other general merchandisers

7 such as Wal-Mart and Target. All Retailers is a more expansive category, which in addition to

8 general merchandisers includes both specialized retailers selling only one type of merchandise and

9 the small “mom and pop” retailer. Defendant points to certain factual differences between Costco

10 and each of these categories and suggests that a comparison to the twenty largest national retail

11 chains would be more appropriate.

12 Certainly Costco is distinct in some respects from most other retailers, notwithstanding
13 statements made by Costco that it considers general merchandisers its most direct competition, and
14 the whole of the retail world its competitor in some sense. Bendick Dec. ¶¶ 10–12. But defendant
15 fails to demonstrate that Dr. Bendick’s benchmarks deviate substantially from basic scientific
16 principles, nor that these benchmarks have no probative value. Census figures and EEO-1 data are
17 regularly applied in employment discrimination cases, and defendant does not contend otherwise.
18 See Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977) (properly qualified census figures
19 useful); Dukes II, 222 F.R.D. at 189 (applying EEO-1 data at class certification stage). External
20 benchmarking is an appropriate method of analysis. Dukes I, 222 F.R.D. at 164. While a narrower
21 comparison of Costco and its nearest competitors may prove useful, it hardly renders Dr. Bendick’s
22 analysis “junky.” Kumho Tire, 526 U.S. at 159 (Scalia, J., concurring).
23

24

Additionally, Costco claims that the EEO-1 category of Officials and Managers is far too

25 broad for comparisons with the particular types of managers at issue in this case. For instance, the

26 Officials and Managers category contains a wide range of management positions within Costco,

27 including lower-level managers not at issue in this case. Costco also quibbles that, in Benchmarks 1

28 and 2, Dr. Bendick has applied the wrong corresponding census job title to one of the four levels of

24

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 managers at Costco. But disputes about whether the EEO-1 category applied is not particularly

2 penetrating or whether the census job title of First Line Supervisors of Sales Workers is more

3 comparable to Costco’s Staff Managers than the census job title of Marketing and Sales Managers

4 go to the weight and not the admissibility of this evidence. Even in the context of a full-blown

5 Daubert hearing, the duty of the trial court “is to analyze not what the experts say, but what basis

6 they have for saying it.” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995)

7 (Daubert II). Defendants have not shown, and the court cannot say, that Dr. Bendick’s benchmarks

8 are not “derived by the scientific method.” Daubert, 509 U.S. at 590.

9

2. Failure to Control for Earnings

10 Dr. Bendick’s five benchmarks do not control for the level of income earned by the managers
11 at the comparator companies, although such data is available through the census for Benchmarks 1
12 and 2. Costco asserts that this failure to control for income results in a comparison between
13 managers earning far less than Costco’s managers—managers who are, according to Costco, far less
14 skilled and with fewer responsibilities than Costco’s better-compensated managers. Dr. Bendick
15 counters that using a higher pay scale would eliminate the managers at many of Costco’s closest
16 competitors from comparison and would include executive managers at retail firms who do not
17 actually work in stores.
18

19

Costco produces substantial evidence that earnings bear heavily on the skill and productivity

20 of the employee. The failure to control for earnings may render Dr. Bendick’s benchmarks

21 unconvincing at trial. But while controlling for earnings may be an accepted practice in the relevant

22 scientific community, defendant has not persuaded the court that a failure to control for earnings

23 renders Dr. Bendick’s benchmarks completely out of step with the relevant scientific community.

24 Again, the court cannot say that Dr. Bendick’s benchmarks are devoid of scientific merit;

25 accordingly, failing to control for earnings does not render the benchmarks inadmissible as a matter

26 of law.

27

3. Supply factors

28 25

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1

Costco also asserts that Dr. Bendick’s benchmarks should be inadmissible as a matter of law

2 because the benchmarks fail to account for the relative unwillingness of women to work at jobs that

3 are as demanding as Costco’s managerial jobs. Thus, the argument goes, there are fewer women

4 vying for managerial positions at Costco, and consequently they are underrepresented in

5 management. However, the premise that a lack of supply is the sole explanation for

6 underrepresentation of women in management is hardly uncontroverted in the relevant scientific

7 community. Further, Dr. Bendick’s benchmarks compare female managers at Costco to female

8 managers at Costco’s competitors; thus, presumably a lack of supply at Costco would manifest in a

9 lack of supply at Costco’s competitors. Defendant’s argument presents yet another controverted

10 issue of fact, and does not demonstrate that Dr. Bendick’s alleged failure to control for supply

11 factors is a failure to apply methods accepted in the relevant scientific community.

12

While defendant’s arguments may be persuasive at trial, they do not demonstrate that Dr.

13 Bendick’s analysis lacks probative value or is based on “junk science.” Lust v. Merrell Dow

14 Pharms., Inc., 89 F.3d 594, 597 (9th Cir. 1996).

15 Accordingly, defendant’s motion to strike the declaration of Dr. Bendick is denied.
16

17

B. Dr. Richard Drogin

18

Dr. Richard Drogin, Ph.D. is retained by plaintiffs as an expert in statistics. Dr. Drogin

19 reviewed Costco’s internal payroll and personnel data, and based on this data conducted statistical

20 analyses of gender disparities in various managerial positions. Based on these analyses, Dr. Drogin

21 concluded that there is a statistically significant shortfall in the number of women promoted to the

22 AGM position, resulting in lower female representation in the AGM and GM positions; that women

23 tend to have a longer tenure and more senior experience than men prior to promotion to AGM; that

24 women tend to have a longer tenure than men prior to promotion to GM; that women are

25 significantly less likely to have Merchandise Manager experience; that the number of women

26 promoted to AGM and GM positions increased after the filing of this lawsuit; and that there is no

27 job posting data for AGM and GM promotions, and little data for Senior Staff openings. Drogin

28 26

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For the Northern District of California

1 Dec. ¶ 25.

2

Defendant does not attack Dr. Drogin’s expertise as a statistician. Defendants argue that Dr.

3 Drogin’s analyses are flawed in the following respects: (1) Dr. Drogin used data from before the

4 liability period in question in this action, and has excluded another range of time that is not

5 favorable to plaintiffs; (2) Dr. Drogin has failed to control for MM experience and experience in two

6 or more Senior Staff positions; (3) Dr. Drogin failed to exclude employees on leaves of absence

7 when analyzing promotion trends; and (4) Dr. Drogin used aggregated national data where regional

8 data is preferred. As a result, according to defendant, Dr. Drogin’s declaration is so flawed as to

9 have no relevance nor reliability to the issue of commonality.

10 1. Dates of Data
11

12

Defendant alleges two improprieties with the data set used by Dr. Drogin. First, defendant

13 argues that, by using data from 1999 through 2005, Dr. Drogin is using stale data far outside the

14 liability period, which in this action begins no earlier than December 28, 2001. Second, defendant

15 argues that Dr. Drogin has arbitrarily excluded data in certain analyses from January 1, 2004 through

16 July 31, 2004—the seven months prior to the filing of this action—in order to derive results more

17 favorable to plaintiffs’ allegations.

18

Defendant asserts that because plaintiffs cannot demonstrate a statistical disparity in

19 promotions during the liability period, plaintiffs have no evidence of discrimination during the

20 liability period. This assertion ignores the anecdotal evidence plaintiffs have presented of liability

21 period discrimination. Defendant concedes that “some courts”—most notably the United States

22 Supreme Court—recognize that in claims based on discrete acts, background information outside the

23 liability period may be used to support a timely claim. National R.R. Passenger Corp. v. Morgan,

24 536 U.S. 101, 113 (2002). Thus, were plaintiffs’ claims based on the acts within the liability period

25 plaintiffs have identified, this evidence would likely be admissible background information.

26

More significantly, plaintiffs’ claims are based on a pattern or practice of discrimination.

27 Defendant cites numerous cases for the proposition that pre-liability period data is objectionable in

28 27

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For the Northern District of California

1 Title VII cases but fails to note that this rule has not been applied to pattern and practice claims.

2 Lyons v. England, 307 F.3d 1092, 1107 n.8 (9th Cir. 2002) (noting that the question of what

3 constitutes timely filing—and by extension relevant evidence—of a pattern and practice claim is

4 unanswered). The court finds no legal bar to the use of pre-liability period evidence in this case, and

5 finds Dr. Drogin’s analysis relevant to plaintiffs’ claims.

6

Defendant entreats the court to analyze the extent of an alleged “overhaul” of Costco’s

7 promotional practices in 2001. Costco claims that these changes render any pre-overhaul data

8 irrelevant. However, whether the overhaul of Costco’s promotional practices effected significant

9 change is disputed by the parties and is a factual matter the court is not empowered to determine at

10 this stage. Costco’s change in promotional practices does not render Dr. Drogin’s analysis irrelevant

11 for purposes of class certification.

12 Costco also claims that Dr. Drogin truncated the data he used to analyze the amount of time
13 that women spend in Senior Staff positions before promotion to AGM, excluding data from January
14 through July of 2004. Plaintiffs argue that Costco began to focus on this issue early in 2004, before
15 the filing of plaintiffs’ complaint, and that therefore there is a reasonable basis for the exclusion of
16 data from the first half of 2004. The court notes that Dr. Drogin consistently incorporated data from
17 the first half of 2004 in his other analyses, and thus is left to wonder why, if this data should be
18 excluded, it was not consistently excluded by Dr. Drogin. It appears that, as defendant argues, Dr.
19 Drogin has truncated the time period analyzed in order to reach the conclusion that a statistically
20 significant disparity exists in the average number of years men and women take to be promoted from
21 Senior Staff positions to AGM positions. Dr. Drogin’s conclusion appears not properly based in
22 scientific method, and plaintiffs offer no viable alternative explanation. Accordingly, the court will
23 strike Dr. Drogin’s analysis of the average years to reach AGM found in ¶ 22 and Table 8 of the
24 Drogin Declaration. The court notes that striking this conclusion does not destroy commonality.
25

26

27

2. Failure to Control for Prior Experience

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1

Defendant claims that Dr. Drogin has failed to control for major non-discriminatory factors

2 in his analysis. As a result, according to defendant, Dr. Drogin’s analysis is flawed as a matter of

3 law. Plaintiffs counter that the factors defendant claims Dr. Drogin should have accounted for are

4 tainted variables and that generally any failure to include variables affects the weight but not

5 admissibility of the analysis.

6

The parties do not dispute that the position of Merchandise Manager is the most common

7 Senior Staff position held prior to promotion to AGM, and that rotation through two or more Senior

8 Staff positions is an important indicator for promotion to AGM. Costco claims that plaintiffs have

9 failed to show that the MM variable is tainted, and as such, the failure to control for it renders Dr.

10 Drogin’s analysis inherently unreliable. See Pottenger v. Potlatch Corp., 329 F.3d 740, 748 (9th Cir.

11 2003) (failure to account for “relevant variables” insufficient to raise triable issue of pretext).

12 However, plaintiffs are not required at this stage to prove that MM is a tainted variable.
13 Plaintiffs have presented substantial evidence, beyond mere allegations, that raises the inference that
14 MM is tainted by Costco’s preference for hiring men for that position. That this alleged taint is
15 controverted is not significant. The court cannot say that, as a matter of law, Dr. Drogin was
16 required to control for this variable. The omission of this variable does not render Dr. Drogin’s
17 analysis “so incomplete as to be inadmissible as irrelevant.” Bazemore v. Friday, 478 U.S. 385, 400
18 n.10 (1986).
19

20

Further, the court notes that “objections to a study’s completeness generally go to ‘the

21 weight, not the admissibility of the statistical evidence[.]’” Obrey v. Johnson, 400 F.3d 691, 695 (9th

22 Cir. 2005) (quoting Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1476 (9th Cir. 1995)).

23 In Title VII cases, statistical studies are typically held inadequate to support a prima facie case of

24 discrimination, but these problems rarely render statistics inadmissible under Federal Rule of

25 Evidence 702. Id. at 696. Defendant’s arguments regarding the control of relevant variables are

26 geared towards the weight of plaintiffs’ evidence and do not establish that Dr. Drogin’s analysis is

27 inadmissible as a matter of law.

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UNITED STATES DISTRICT COURT
For the Northern District of California

1

3. Leaves of Absence

2

Defendant argues that because Dr. Drogin failed to exclude employees who were on leave of

3 absence at the end of the year, his analysis is unreliable, as employees on leave are ineligible for

4 promotion. This is pertinent, defendant suggests, because the evidence shows that women managers

5 at Costco are more likely to take leaves of absence, of greater length, than men. Plaintiffs counter

6 that accounting for leaves of absence has no impact on promotion disparities, an assertion defendant

7 does not refute.

8 This inquiry is again one based on the merits of each analysis. Costco points to no authority,
9 based either in case law or in statistical science, suggesting that accounting for leaves of absence is

10 requisite to an accurate analysis. The court finds that, according to the evidence, Dr. Drogin’s
11 failure to account for leaves of absence is immaterial, and does not render his analysis irrelevant or
12 unreliable.

13

14

4. Aggregation of Data

15

Dr. Drogin analyzed Costco’s management data on a national, aggregate level. Defendant

16 argues that aggregated data is disfavored, and that when disaggregated data is used it demonstrates

17 statistically significant gender disparities in only two of the seven regions analyzed (the eighth

18 Texas region does not contain enough samples for analysis). Plaintiffs argue in response that

19 aggregated data is appropriate both legally and scientifically.

20

Defendant presents no evidence that aggregate data is not used in the relevant scientific

21 community. Rather, defendant’s argument is premised on the assumption that disaggregated data is

22 favored—if not required—by law. However, aggregated data is acceptable where “more probative

23 than subdivided data.” Paige v. California, 291 F.3d 1141, 1148 (9th Cir. 2002). Plaintiffs suggest 24 that aggregated data is more probative because of the relatively small sample size involved and the 25 alleged involvement of Costco’s national-level management in promotion decisions. See Drogin 26 Supp. Dec. ¶ 16 (distinguishing the present analysis from Dr. Drogin’s regional analysis in Dukes I, 27 222 F.R.D. at 160–61, which involved a much greater number of promotions—over 45,000

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 compared to under a thousand in the present case—and lower-level promotion decisions).

2 Defendants do not refute plaintiffs’ rationale for using aggregate data, but instead argue that

3 disaggregated data is more probative because it demonstrates statistically significant disparities in

4 only two regions. In essence, both sides seem to argue that their selected method is more probative

5 because it supports their allegations or defenses.

6

Defendant fails to show that, as a matter of law, disaggregated data is required in this case.

7 Plaintiffs have suggested a reasonable scientific rationale for using aggregated data, and

8 disaggregated data, while often preferred, is not a per se legal requirement. Further, defendant’s

9 argument has a problematic circularity. If aggregated data were inadmissible, plaintiffs would be

10 required to use regional data to prove allegations of nationwide decision-making. But plaintiffs’

11 theory is that promotion decision-making is overseen on a national level, and “[r]ight or wrong, they

12 are entitled to attempt to prove their case.” Paige, 291 F.3d at 1149. Defendant is free to produce

13 evidence to counter plaintiffs’ theory, but this does not mean that aggregated data should be

14 inadmissible. Given plaintiffs’ allegations, aggregated data is probative and should be considered in

15 determining commonality under Rule 23.

16 Defendant’s arguments again are, on the whole, better directed to the weight of plaintiffs’
17 evidence than its admissibility. Aside from Dr. Drogin’s analysis of the comparative time to reach

18 the AGM position, which arbitrarily cuts off the date range analyzed, defendant has not
19 demonstrated that Dr. Drogin’s methods are unreliable, nor that his analyses are irrelevant.

20 Defendant has not demonstrated that, as a matter of law, pre-liability period data should be
21 inadmissible, the MM position is untainted as a control, or that aggregation of data is non-probative.
22

23

Accordingly, defendant’s motion to strike Paragraph 22 and Table 8 of the Drogin

24 Declaration are granted, and defendant’s motion to strike the Drogin Declaration is otherwise

25 denied.

26

27

C. Dr. Barbara Reskin

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UNITED STATES DISTRICT COURT
For the Northern District of California

1

Plaintiffs submit Dr. Reskin’s sociological analysis in order to establish that plaintiffs have

2 experienced gender discrimination based on a common culture of sex stereotyping and paternalism.

3 Defendant moves to strike Dr. Reskin’s declaration for three reasons. Defendant alleges that Dr.

4 Reskin’s proffered opinions are (1) irrelevant because her opinions are based on laboratory studies

5 and not actual Costco practices, and they fail to consider the mitigating effects of individuating

6 information on stereotyping behavior; (2) unreliable because they are premised on the erroneous

7 understanding that regional managers are the decision-makers in the promotions of senior staff

8 managers and (3) unreliable because if Dr. Reskin’s theories were true, then gender disparities

9 disfavoring women would be evident in all promotion practices and performance reviews, which

10 defendant denies. Defendant also appears to challenge Dr. Reskin’s qualifications as an expert and

11 her overall research methodology. Mot. to Strike at 1, 21–25.7 The court evaluates each argument

12 in turn.

13

The court first addresses Costco’s challenge to Dr. Reskin’s qualifications and its contention

14 that her research methodology is unreliable. Costco claims that Dr. Reskin is not an expert in

15 industrial psychology, that she has no knowledge of Costco employment practices and has not

16 performed any independent research into job descriptions or job evaluations. Mot. to Strike at

17 21–24. It also contends that Dr. Reskin is not an expert on performance appraisals in industry and

18 that she does not know crucial information about “promotability profiles.” Id. at 21. Costco defines

19 Dr. Reskin’s methodology as controversial and it repeatedly asserts that she does not have a

20 scientific basis for her opinions. Id. at 1.

21 Dr. Reskin has demonstrated to the court that she has a sufficient educational and
22 professional background, and experience in employment litigation, to qualify as an expert for the
23 purposes of establishing the commonality of plaintiffs’ claims. Reskin Dec. at 2–4; See Daubert,
24 509 U.S. at 582–584 (illustrating sufficient expert qualifications). The type of sociological study in
25 which Dr. Reskin relies has been considered by courts in Title VII cases. Price Waterhouse v.
26 Hopkins, 490 U.S. 228, 235–36 (1989) (utilizing expert evidence on sex stereotyping by a
27 sociologist to find that a promotion decision was gender discrimination); Dukes II, 222 F.R.D. at
28

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 192 (court relying upon similar sociological sex stereotyping data in consideration of plaintiffs’

2 commonality arguments). Dr. Reskin arrived at her opinion by reviewing materials pertaining to

3 personnel policies and practices of Costco in addition to deposition testimony of Costco employees.

4 Reskin Dec. at 4. Dr. Reskin claims that she evaluated this information in the context of “a large

5 body of social scientific research on sex stereotyping and ingroup bias . . . [which] appears in peer

6 reviewed journals or edited volumes of the highest scholarly caliber.” Id. Defendant has not

7 proved, therefore, that Dr. Reskin’s research methodology deviates from similar research

8 methodology accepted by courts in Title VII cases or is otherwise “junk science.” Lust, 89 F.3d at

9 597. Therefore, as a threshold matter, the court finds Dr. Reskin’s expert qualifications sufficient

10 and her research methodology reliable for Rule 23 purposes.

11

1. Laboratory Studies

12 Defendant contends that Dr. Reskin’s opinion is based on laboratory studies that are not
13 transferrable to the decisionmaking environment at Costco. Certain decisionmaking factors
14 pertinent to the industrial setting, defendant asserts, are missed in the laboratory studies on which
15 Reskin relies. Furthermore, Costco alleges that Dr. Reskin did not account for the mitigating effect
16 of individuating information used in making promotion decisions. Defendant claims that such
17 information reduces the likelihood that decisions were based on sex stereotyping.
18

19

Defendant is challenging the relevance of the laboratory studies to the ultimate question of

20 whether or not sex stereotyping exists in the promotion practices at Costco. While defendant may

21 raise valid criticisms of the laboratory studies, these criticisms address the weight that the studies

22 should be afforded. Dukes II, 222 F.R.D. at 192. Assuming defendant is correct that the laboratory

23 studies did not replicate the exact Costco environment or take into account all mitigating

24 circumstances, the studies may be probative nonetheless in making a commonality determination.

25 The court does not find defendant’s criticisms so substantial as to render the studies wholly

26 irrelevant and therefore inadmissible.

27

2. Regional Managers

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UNITED STATES DISTRICT COURT
For the Northern District of California

1

Defendant asserts that Dr. Reskin based her opinions about Costco’s decisionmaking

2 practices on the incorrect understanding that regional managers make promotional decisions. The

3 effect of this erroneous assumption is, Costco contends, Dr. Reskin’s failure to consider mitigating

4 individuating information that GMs, the actual decisionmakers, have when making their promotion

5 decisions. Defendant’s argument about the invalidity of Dr. Reskin’s opinion fails for the same

6 reasons as above. First, it appears from defendant’s own motion that regional managers do play a

7 role in promotional decisionmaking. Mot. to Strike at 12 (explaining that regional managers

8 ultimately approve the GMs’ decision to promote senior staff managers). Therefore Dr. Reskin’s

9 assertions cannot be entirely unreliable in this regard. Defendant’s motion demonstrates, however,

10 that the role of regional managers in the decisions to promote is a key factual issue to be determined

11 at trial. Second, even if regional managers play no role in certain decisions, defendant does not

12 prove that this fact was the lynchpin of Dr. Reskin’s opinion. Although Dr. Reskin’s opinion may

13 be based in part on disputed factual information, it does not invalidate her study. The mistake in Dr.

14 Reskin’s study, if a mistake at all, goes to its weight, but does not render her study completely

15 unreliable so that it lacks any probative value.

16

3. Gender Disparities

17 Defendant challenges the validity of Dr. Reskin’s analysis on the basis that if her opinions
18 regarding sex stereotyping at Costco were accurate, gender disparities would be evident in all
19 promotion decisions and performance evaluations. Defendant asserts that there are no significant
20 disparities in the promotion of men and women to AGMs, no disparities in the promotion of men
21 and women from AGMs to GMs, and no disparities in the promotion of men and women to AGMs
22 within the limitations period. Mot. to Strike at 14–15. Plaintiffs, however, claim that gender
23 disparities do exist in these categories. See Drogin Dec. at 17. The same is true of defendant’s
24 argument that women are rated higher in performance evaluations therefore disproving Dr. Reskin’s
25 hypothesis. Plaintiffs say that performance reviews are conducted in a different manner than
26 promotional decisions. Opp. at 18. Such differences support Dr. Reskin’s hypothesis, plaintiffs
27 claim, because performance reviews are conducted according to written criteria that hold managers
28

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For the Northern District of California

1 accountable for their decisions. Id. Therefore, it is consistent with Dr. Reskin’s theories that

2 women receive favorable treatment in performance reviews but not in promotional decisions because

3 promotional decisions are made according to subjective criteria which allow for sex stereotyping.

4 Id.

5

Sound arguments by plaintiffs and defendant on this point further illustrate that the

6 interpretation of statistical data on promotional decisions and performance reviews is an issue to be

7 determined at trial. At the certification stage, the court will not make determinations on the merits

8 of whether such disparities do exist and what any disparities mean. Eisen, 417 U.S. at 177–78. The

9 court rejects defendant’s argument that Dr. Reskin’s opinion is unreliable because there are no

10 gender disparities in certain categories.

11 In conclusion, the court acknowledges defendant’s arguments as viable attacks on the weight
12 of Dr. Reskin’s opinion. However, the court determines that Dr. Reskin’s opinion is based on valid
13 principles and acceptable methodology. Defendant has not proved that Dr. Reskin’s opinions are so
14 unreliable or irrelevant that they are fatally flawed and thus inadmissible as a matter of law. The
15 court finds Dr. Reskin’s opinion probative on the question of commonality and therefore denies
16 defendant’s motion to strike her declaration.
17

18

In sum, the court grants in part defendant’s motion to strike the declaration of Dr. Drogin

19 with respect to his analysis of gender disparity in the number of years to reach AGM position and

20 denies the motion with respect to the other portions of Dr. Drogin’s declaration. The court denies

21 defendant’s motions to strike the declarations of Dr. Reskin and Dr. Bendick.

22

23 CONCLUSION

24 Based upon the foregoing, IT IS HEREBY ORDERED that:

25 1) Plaintiffs’ motion to certify a class is GRANTED.
26

27

2) The class consists of all current and former female Costco employees nationwide who have

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 been denied promotion to GM or AGM or denied promotion to Senior Staff positions since January

2 3, 2002.

3

3) The named class representatives are: Shirly Rae Ellis, Leah Horstman, and Elaine Sasaki..

4 4) The counsel of named plaintiffs is counsel for the class.
5

6

5) Defendant’s motion to strike Dr. Drogin’s declaration is GRANTED in part and DENIED in

7 part.

8 6) Defendant’s motions to strike declarations of Dr. Reskin and Dr. Bendick are DENIED.

9

10

IT IS FURTHER ORDERED that counsel shall confer and submit a proposed class notice in

11 compliance with this order within thirty (30) days of the date of this order.

12

13

14

15

Dated: January 10, 2007

16

17 _______________________________

18

19

MARILYN HALL PATEL United States District Court Judge

20

Northern District of California

21

22

23

24

25

26

27

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UNITED STATES DISTRICT COURT
For the Northern District of California

1

ENDNOTES

2

3 1. As plaintiffs’ counsel clarified at the hearing on November 7, 2006, plaintiffs have brought
4 individual FEHA claims and do not seek certification of a class for these claims.
5 2. All facts herein have been taken from the plaintiffs’ Second Amended Complaint (“SAC”), 6 unless otherwise noted.

7 3. Plaintiff Ellis filed an EEOC charge against Costco on October 30, 2002. Therefore, the class 8 membership date is January 3, 2002. Ellis Dec. ¶ 13 & Exh. 14.
9 4.The parties have called the courts attention to a recently decided case under federal securities laws, In re Initial Public Offering Securities Litigation, No. 05-3349-CV, 2006 WL 3499937 (2d Cir. Dec.
10 5, 2006). While that case by reasons of statutes and facts is distinguishable, this court’s holding is 11 consistent with respect to the requirements for a Rule 23 showing.
12 5.The court notes that Ellis was a current employee at the time this action was commenced.

13 6.The Ninth Circuit disapproved of class certification in Molski for reasons wholly inapposite here.

14

Molski did not alter the longstanding rules about predominance under Rule 23. In that case, damages were released without adequate due process, and the court confronted a consent it found to

15 be unfair and inadequate for absent class members. 318 F.3d 937 at 951–55.

16 7. While defendant also contends that Dr. Reskin’s opinions are unreliable because her assessment

17

of the Costco CEO’s statements, and Costco’s policies and practices are not based in scientific fact these claims are part of a larger attack on Dr. Reskin’s methodology.

18

19

20

21

22

23

24

25

26

27

28 37

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7

8 SHIRLEY “RAE” ELLIS, et al.,

No. C-04-3341 EMC

United States District Court For the Northern District of California

9

Plaintiffs,

10

v.

11 COSTCO WHOLESALE CORPORATION,

12

Defendant.

___________________________________/

13

ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION; AND DENYING DEFENDANT’S MOTION TO ELIMINATE CLASS CLAIMS
(Docket Nos. 543, 664)

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court For the Northern District of California

1

TABLE OF CONTENTS

2 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

3

4 II. FACTUAL AND PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

5

A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

6

1. Ellis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

7

2. Horstman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

8

3. Sasaki . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

9

B. Judge Patel’s Prior Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

10

1. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

11

2. Numerosity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

12

3. Commonality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

13

4. Typicality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

14

5. Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

15

6. Rule 23(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

16

C. Ninth Circuit’s Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

17

D. Plaintiffs’ New Class Certification Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

18

19 III. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

20

A. Evidentiary Dispute Re Costco’s Declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

21

B. Motion for Class Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

22

1. Rule 23(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

23

a. Numerosity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

24

b. Commonality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

25

i. Dukes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

26

ii. Ellis II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

27

iii. Disparate Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

28

2

United States District Court For the Northern District of California

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 IV. 27 28

A. Classwide Policies & Practices – Costco’s Promotion System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 1. High Level Management Involvement . . . . 28 2. Common Criteria . . . . . . . . . . . . . . . . . . . . . 33 3. Costco’s Own Evidence . . . . . . . . . . . . . . . . 35 4. Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 5. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
B. Costco’s Culture . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 C. Classwide Effects – Statistical Evidence . . . . . . . . . 45
1. National vs. Regional . . . . . . . . . . . . . . . . . . 45 2. Competing Explanations for Statistical
Disparity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 3. Challenges to Methodology . . . . . . . . . . . . . 56 D. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 iv. Disparate Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 c. Typicality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 d. Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 2. Rule 23(b)(2) – Injunctive Relief Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 3. Rule 23(b)(3) – All Monetary and Individual Equitable Relief . . . . . . . . . 72 a. Predominance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 b. Superiority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 c. Punitive Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 d. Rule 23(c)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 4. Rule 23(g) – Class Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
OCNCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

3

United States District Court For the Northern District of California

1

I. INTRODUCTION

2

Plaintiffs Shirley “Rae” Ellis, Leah Horstman, and Elaine Sasaki (“Named Plaintiffs”),

3 current and former employees of defendant Costco Wholesale Corporation (“Costco”), brought a

4 putative class action alleging gender discrimination in Costco’s promotion and management

5 practices. Pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e, et seq.,

6 Plaintiffs allege that Costco has engaged in a pattern or practice of discrimination against women in

7 promotions to two management positions and that Costco’s promotion system has a disparate impact

8 on female employees. In addition, Plaintiff Ellis brings a claim for retaliation, and the Named

9 Plaintiffs bring pendent causes of action alleging gender discrimination in violation of the Fair

10 Employment and Housing Act, California Government Code section 12940, et seq.

11

On August 28, 2006, Plaintiffs sought certification of a nationwide class consisting of current

12 and former female Costco employees who were denied promotion to General Manager (“GM”) or

13 Assistant General Manager (“AGM”) positions since January 3, 2002. Plfs’ Mot. for Class Cert.,

14 Docket No. 127. On January 11, 2007, Judge Patel granted class certification. Order Re: Mot. for

15 Class Cert., Docket No. 494, Stip. Re: Class Definition, Docket No. 511; Ellis v. Costco Wholesale

16 Corp. (“Ellis I”),1 240 F.R.D. 627 (N.D. Cal. 2007). After Costco sought and received permission to

17 file an interlocutory appeal, on September 16, 2011, the Ninth Circuit affirmed in part, vacated in

18 part and remanded the certification order for reconsideration in light of Wal-Mart Stores, Inc. v.

19 Dukes, 131 S. Ct. 2541 (2011). See Ellis v. Costco Wholesale Corp. (“Ellis II”), 657 F.3d 970 (9th

20 Cir. 2011).

21

On remand, Defendant has filed a motion for an order eliminating class claims, and Plaintiffs

22 have filed a cross-motion for class certification. Docket Nos. 543, 664. Plaintiffs seek to certify two

23 classes: (1) An injunctive relief class of all women who are currently employed or who will be

24 employed at any Costco warehouse in the U.S. who have been or will be subject to Costco’s system

25 for promotion to Assistant General Manager and/or General Manager positions; and (2) A monetary

26 relief class of all women who have been employed at any Costco warehouse store in the U.S. since

27

28

1 The Court will refer to Judge Patel’s prior ruling in this case as Ellis I, and the Ninth Circuit’s ruling as Ellis II.

4

United States District Court For the Northern District of California

1 January 3, 2002 who have been subject to Costco’s system for promotion to Assistant General

2 Manager and/or General Manager positions. The parties’ motions are now pending before the

3 Court.

4

II. FACTUAL AND PROCEDURAL BACKGROUND

5 A. Factual Background

6

Defendant Costco is a corporation headquartered in Issaquah, Washington, which operates

7 cash-and-carry membership warehouses throughout the United States. Costco’s nationwide

8 operations are divided into three divisions (Southwest, Eastern, and Northern/Midwest), each

9 governed by an Executive Vice President (“EVP”). See Docket No. 665, Ex. 25 (organizational

10 chart). These divisions are in turn divided into regions – a total of eight companywide – managed

11 by Senior Vice Presidents (“SVPs”).2 Id. Each Costco region is broken down into districts, led by

12 District VPs; the districts are in turn composed of numerous Costco warehouses. Id.

13

Costco’s top management – from Senior VPs up – meets once every four weeks at company

14 headquarters in Washington. Zook Depo., Docket No. 665, Ex. 11, at 21. In addition to other

15 matters, personnel and potential candidates for promotion are “frequently discussed among top-level

16 managers, both at weekly meetings and the monthly meetings at Costco headquarters in Issaquah,

17 Washington.” Omoss Decl., Docket No. 611, ¶ 9 (VP of Texas region).3 Regional executives also

18 have direct contact with store-level staff through regular floor walks averaging approximately once

19 per month, during which they can evaluate potential candidates for promotion and offer feedback to

20 store-level managers. See, e.g., Rosolino Decl., Docket No. 618, ¶ 32 (Regional VP participates

21 once per month); Ward Decl., Docket No. 631, ¶¶ 29-31 (VPs participate twice per month); Cafiso

22 Decl., Docket No. 559, ¶ 18 (regional manager participates once per month); Nierstheimer Decl.,

23 Docket No. 610, ¶ 28 (Regional VPs participate once per month); Webb Decl., Docket No. 652, ¶ 6

24 (as Regional VP, tries to visit each warehouse once per month); Cline Decl., Docket No. 563, ¶ 21

25

2 When evidence in the record refers to vice presidents without specifying their rank, the

26 Court will refer to them simply as “VPs.”

27

3 Mr. Omoss does not specify whether the potential candidates to whom he refers includes both AGM and GM candidates, but the context of his declaration (discussing both AGM and GM

28

prospects) suggests he was referring to candidates for promotion generally, including AGM and GM positions.

5

United States District Court For the Northern District of California

1 (VPs participate every three months); Bejarano Decl., Docket No. 640, ¶ 25 (regional manager

2 participates once per month); Alvarez Decl., Docket No. 551, ¶ 9 (regional managers observe and

3 discuss candidates for promotion); Asch Decl., Docket No. 554, ¶ 15 (VPs participate and evaluate

4 employees); D’Agostino Decl., Docket No. 565, ¶ 25 (received “constant feedback” from VPs based

5 on floor walks). Although less frequent, higher management – up to and including the CEO – also

6 participate in “floor walks” at each warehouse to meet and evaluate store-level management. See,

7 e.g., Eringer Decl., Docket No. 567, ¶¶ 44-45 (regional and district executives, VPs, and CEO);

8 Evans Decl., Docket No. 568, ¶ 30 (floor walks “are conducted by various levels of management,

9 from the warehouse level all the way up to the CEO”); Hinds Decl., Docket No. 584, ¶ 24 (VPs and

10 CEO participate in walks).

11

As relevant to this matter, the Ninth Circuit described Costco’s store-level structure as

12 follows:

13

Costco operates over 350 warehouse-style retail establishments

(warehouses). These warehouses sell items ranging from groceries to

14

electronics. Within each Costco warehouse, the management structure

consists of a General Manager (GM), two to three Assistant General

15

Managers (AGM), and three to four Senior Staff Managers. A Costco

GM is responsible for the entire operation of his or her respective

16

warehouse and earns an average salary of approximately $116,000,

plus stock and bonuses. Costco AGMs are second in command within

17

each warehouse and earn an average salary of approximately $73,000,

plus stock and bonuses. Costco’s Senior Staff Managers are divided

18

into four categories: Front End Managers, Administration Managers,

Receiving Managers, and Merchandise Managers.4 Front End

19

Managers oversee cashiers, membership/marketing personnel, cart

staff, and other employees who deal directly with Costco members.

20

Administration Managers manage administrative functions such as

payroll and human resources. Receiving Managers oversee stocking

21

of all incoming items from the receiving dock to the shelves.

Merchandising Managers oversee lower level managers and are

22

responsible for planning floor displays to maximize sales.

23

Costco promotes almost entirely from within its organization.

Only current Costco AGMs are eligible for GM positions. Costco

24

does not have any written policy explaining to employees the criteria

to be considered for promotion to GM or AGM, though candidates are

25

promoted from a list of promotable candidates. Costco does not have

written guidelines explaining how candidates should be selected for

26

the promotable lists and does not regularly inform employees about

27

4 Most warehouses employ four Senior Staff Managers – one for each of the four Senior

28

Staff Manager positions. However, in some larger warehouses, one of the AGMs assumes the role of Administration Manager.

6

United States District Court For the Northern District of California

1

the existence of such lists. Costco does not require that more than one

candidate be considered for any particular opening or that a

2

performance evaluation or any other documents be reviewed before a

recommended candidate is approved. Costco also lacks a consistent

3

practice for interviewing potential candidates for GM and AGM

openings. Costco does not keep records regarding the selection

4

process.

5

Costco employs a different promotion procedure for Senior

Staff Managers. Costco fills the majority of Senior Staff openings by

6

rotating managers among the four Senior Staff positions. This rotation

is part of Costco’s philosophy and, in Costco’s opinion, trains and

7

develops managers for future advancement by exposing them to

different aspects of Costco’s operations. Like the GM and AGM

8

promotion procedures, Costco has no written guidelines regarding

rotation of Senior Staff Managers.

9

10 Ellis II, 657 F.3d at 974-76.

11

Despite the lack of written guidelines, as observed by the Ninth Circuit, Costco nonetheless

12 imposes uniform policies and practices with regard to its promotion system. In addition to

13 promoting from within, requiring that GMs come from the roster of AGMs and requiring AGMs to

14 come from the roster of SSMs, Costco also requires merchandising experience – generally in the

15 form of the Merchandise Manager (“MM”) position – before Senior Staff Managers (“SSMs”) are

16 eligible for promotion to AGM. See Hoover Decl., Docket No. 586, ¶ 7; Kadue Decl., Docket No.

17 544, ¶ 4 (collecting citations to testimony across regions); Sinegal Depo., Docket No. 665, Ex. 8, at

18 42-43. Costco does not allow posting for either position. Sinegal Depo. at 123-24; see also id. at

19 128. The company maintains lists of promotable candidates to AGM at the regional level, and lists

20 for GM at the regional and higher levels. Zook Decl., Docket No. 653, ¶ 19(f) (AGM list at regional

21 level); id. ¶ 20(d) (GM list at regional level); Portera Depo., Docket No. 665, Ex. 6, at 86-87 (EVP

22 receives promotable list of GM candidates); Sinegal Depo., Docket No. 665, Ex. 8, at 65 (GM

23 promotable list maintained at headquarters in Green Room). Costco’s upper management closely

24 tracks promotion into both of these important positions, and “officers at the regional and corporate

25 levels are involved in promotion decisions” for both AGM and GM. Ellis I, 240 F.R.D. at 639. For

26 example, Costco’s former CEO, Jim Sinegal,5 testified that he is directly involved in the process of

27

5 Although Mr. Sinegal is no longer Costco’s CEO as of 2012, the Court refers to him as

28

“CEO” and uses the present tense with respect to testimony by or about him because the evidence in the record concerns his tenure.

7

United States District Court For the Northern District of California

1 recruiting and selecting candidates for promotion, and that he provides instructions to his staff as to

2 criteria for promotion to both AGM and GM. Sinegal Depo., Docket No. 665, Ex. 8, at 23-24, 29-

3 30, 42-43. This is especially the case for the GM positions, each of which he personally reviews.

4 Sinegal Depo. at 23-24. For AGM promotions, regional management are the final decisionmakers

5 as to specific promotions, with direct input from local GMs. See Schutt Depo., Docket No. 544, Ex.

6 U, at 76, 95-96 (AGM decision made at the regional level, with the GM, Regional Manager,

7 Regional VP, and Senior VP involved, and “[m]any times” the Senior VP will approve it); Portera

8 Depo., Docket No. 544, Ex. O, at 122 (GMs make the decision and recommendation for AGM

9 promotions “in conjunction with their regional vice presidents, and then the ultimate approval is

10 given by a senior vice president of the region”); Zook Decl., Docket No. 653, ¶¶ 7, 14-15 (stating

11 that EVP is informed of the decision and EVP “oversee[s] the promotion process involving . . .

12 AGMs,” and that GMs are the primary decisionmakers with respect to AGM promotions in

13 conjunction with Regional Operations Managers); see also Hoover Depo., Docket No. 544, Ex. I, at

14 91 (GM, VP, and Senior VP make decision, EVP informed); Webb Decl., Docket No. 652, ¶ 6

15 (Regional VP makes decision with input from GM); Webb Depo., Docket No. 665, Ex. 10, at 82

16 (same).

17

1. Ellis

18

The Ninth Circuit described Plaintiff Ellis’s factual background as follows:

19

Costco hired Shirley Ellis as an AGM in 1998. Prior to joining

Costco, Ellis worked for nearly 20 years in retail management,

20

including five years as a general manager for Sam’s Club (Costco’s

chief competitor). According to Ellis, she left Sam’s Club, because

21

she was actively recruited by Costco and promised promotion to GM

within a year. On the other hand, Costco claims that it recruited Ellis

22

because she misrepresented herself as a star at Sam’s Club, when she

had, in fact, lost her job for poor performance.

23

In Ellis’s first year with Costco, she transferred locations twice

24

in order to further her goal of promotion to GM. During this time,

several GM positions became available, but she did not learn of the

25

openings until after they were filled. In 2000, Ellis transferred to

Colorado to assist her sick mother. According to Ellis, a supervisor

26

told her that it would not hurt her chances for promotion. After six

months, Ellis notified Costco that she was again able to relocate

27

anywhere as a GM.

28

8

United States District Court For the Northern District of California

1

In 2002, Ellis sent a letter to her supervisors expressing a

“burning desire” to help Costco be successful and advance within the

2

company, asking how the GM selection process worked, where she

stood as a candidate for promotion, and what she needed to do to

3

become a GM. In October 2002, Ellis, while still employed with

Costco as an AGM, filed a gender discrimination charge with the

4

Equal Employment Opportunity Commission (EEOC), alleging that

she had been passed over for promotion to GM because she was

5

female. Ellis left Costco in November 2004.

6 Ellis II, 657 F.3d at 976.

7

2. Horstman

8

The Ninth Circuit described Plaintiff Horstman as follows:

9

Leah Horstman worked for Costco for more than 23 years

beginning in 1981. In 1996, after 15 years with Costco, Horstman was

10

promoted to be a Senior Staff Manager. By 2000, Horstman had

rotated through the Administrative Manager, Merchandise Manager,

11

and Receiving Manager positions. She had earlier worked as an

Assistant Front End Manager, but did not rotate to the Front End

12

Manager position because of scheduling conflicts and her duties as a

single mother with two young daughters.

13

Througout her career with Costco, Horstman repeatedly

14

expressed her interest in advancing to AGM and GM and questioned

supervisors about the requirements for both positions. Heeding the

15

advice of a supervisor, Horstman also transferred to a high-volume

store and expressed a willingness to move from California to Texas in

16

order to become an AGM. However, in her final three annual self-

performance reviews, Horstman indicated that her goal was to stay in a

17

position similar to that which she held at the time for three to five

years so that she could balance her family life and then to continue her

18

advancement to AGM and GM. Horstman filed a discrimination

charge with the EEOC in October 2003 and resigned in June 2004.

19

20 Id.

21

3. Sasaki

22

The Ninth Circuit described Plaintiff Sasaki as follows:

23

Elaine Sasaki began working for Costco in 1985. Sasaki

advanced to become a Senior Staff Manager within four years. She

24

received consistently high performance reviews, and her GM first

indicated that she was ready to be promoted to AGM in 1993.

25

Although Sasaki offered to transfer to places as far away as Hong

Kong, she was not promoted to AGM until 1996. Sasaki is currently

26

an AGM in Visalia, California.

27

Since Sasaki was promoted to AGM in 1996, she has not been

selected for at least eight GM positions. She claims she was not aware

28

of any of these openings until after they were filled. Sasaki has

9

United States District Court For the Northern District of California

1

relocated four times to improve her chances of promotion to GM. In

September 2003, Sasaki wrote to Costco’s director of human resources

2

expressing her concern that she had not been promoted because of her

gender. At least some of her concern stems from an incident in which

3

she claimed to rebuff the advances of her regional Senior Vice

President in a hotel elevator and was later told by him that he holds

4

her to higher standards than other AGMs. According to Costco,

Sasaki has not been promoted because both her performance

5

appraisals and her self-evaluations identify areas for improvement.

Further, she has never ranked high on Costco’s GM promotable list.

6

Sasaki filed a gender discrimination charge with the EEOC on March

1, 2005. She remains employed as an AGM at Costco.

7

8 Id. at 976-77.

9 B. Judge Patel’s Prior Order

10

On the previous motion for class certification, Judge Patel made the following rulings.

11

1. Standing

12

First, the court determined that Plaintiffs had standing to bring suit for injunctive relief, even

13 though two of the Plaintiffs were former, rather than current, employees. Ellis I, 240 F.R.D. at 637.

14 Although the Ninth Circuit partially vacated that finding, standing is no longer at issue in this case

15 as Plaintiffs seek to have Plaintiff Sasaki, a current employee, represent the injunctive relief class.

16 Defendant raises no challenge on standing grounds. See Plfs’ Reply at 2 n.2 (so noting).

17

2. Numerosity

18

Second, the court concluded that Plaintiffs met the numerosity requirement for class

19 certification under Rule 23(a), because the potential class was approximately 700 people. Ellis I,

20 240 F.R.D. at 638. That finding was not challenged on appeal, nor does Defendant raise it here.

21

3. Commonality

22

Third, Judge Patel found that Plaintiffs met the commonality requirement. The court

23 considered the parties’ “battle of the experts,” including, on Plaintiffs’ side, statistical comparisons

24 of women’s promotion rate at Costco as compared to their male counterparts and as compared to

25 other similar companies, as well as social science and cognitive bias research showing that “the

26 Costco culture and subjective promotion processes discriminate against women.” Id. at 638-40.

27 Defendant, on its side, presented expert testimony “that women are not underrepresented at Costco

28 and that any gender disparities, if they exist, are confined to two regions of Costco.” Id. at 638.

10

United States District Court For the Northern District of California

1 Defendant presented further expert testimony “that gender disparities, if they exist, are based upon

2 factors, such as women’s lack of interest in jobs requiring early morning hours, which are unrelated

3 to Costco’s culture and promotion processes.” Id. In addition, Defendant moved to strike Plaintiffs’

4 experts’ testimony, arguing that it was irrelevant and unreliable. Id.

5

Considering these competing accounts, the court found that “plaintiffs have provided

6 sufficient evidence of gender disparities in the promotion of women to GM and AGM to raise a

7 common issue of triable fact.” Id.; see also id. at 639 (“[P]laintiffs have presented compelling

8 evidence of gender disparities at this time sufficient to demonstrate class-wide impact.”). The court

9 found that Defendant’s challenges to Plaintiffs’ evidence (including, e.g., Plaintiffs’ use of aggregate

10 rather than regional data) “attack the weight of the evidence and not its admissibility.” Id.; see also

11 id. (“Plaintiffs[‘] expert declarations, while questioned by defendants, are strong enough to establish

12 commonality” as to classwide gender disparities).

13

In addition to the evidence of classwide disparities, Judge Patel found that Plaintiffs had

14 presented sufficient evidence of a uniform promotion practice that caused this classwide gender

15 disparity. Specifically, the court found that

16

Costco has a consistent promotion-from-within policy. Costco has no

written selection criteria for promotion to GM and AGM nor any

17

formal notification or application procedures for those positions. This

process involves decision-making by central management, including

18

the maintenance of a Green Room at corporate headquarters where the

photographs of potential promotees are displayed. Indeed, there was a

19

conscious decision made not to post vacancies for GM and AGM. See

Sinegal Dep. 123:22-124:2, 124:9-16, Exh. 1. Defendants argue that

20

promotion decisions to AGM and GM vary by region and that

promotion decisions to AGM are made at the store level. However,

21

these assertions are unsupported and do not undermine commonality.

Rather, the evidence before the court indicates that officers at the

22

regional and corporate levels are involved in promotion decisions.

The absence of written criteria for promotion as well as other evidence

23

that the process is subjective satisfies the court that there is a policy

common to the class in this regard. See Bates v. UPS, 204 F.R.D. 440,

24

448 (N.D. Cal. 2001) (Henderson, J.).

25 Id. The court further found that Plaintiffs had presented evidence through their social science expert

26 (Dr. Reskin) that this common policy “has a gender-differentiated impact on the promotion to AGM

27 and GM.” Id. The court concluded that “the defendants’ objections to Dr. Reskin’s study do not

28 convince the court that it is irrelevant or unreliable.” Id. at 640.

11

United States District Court For the Northern District of California

1

The court rejected Costco’s argument that any gender disparities are “attributable to the

2 gender-differentiated supply in the pool of qualified employees for AGM and GM positions . . .

3 [which] is reflective of women’s differential interest in jobs requiring works hours incompatible

4 with family responsibilities.” Id. On this point, the court concluded that “[w]hat defendant has

5 presented is an argument that is common to the class, and, if anything, supports the commonality

6 factor. In evaluating all of the evidence presented, the court finds that plaintiffs have presented

7 strong evidence of a common culture at Costco which disadvantages women.” Id.

8

Finally, the court concluded that, based on Plaintiffs’ evidence that Costco itself regarded

9 evidence of gender disparities in the company as a company-wide issue, “Costco’s treatment of

10 gender disparities in promotion to Senior Staff as well as AGM and GM positions as a company-

11 wide issue establishes a common question of fact.” Id. (discussing Costco’s companywide BOLD

12 Initiative and efforts to increase diversity in the ranks of management companywide). Accordingly,

13 the court determined that Plaintiffs had demonstrated “common issues of fact and theories of law as

14 to gender disparities in promotions to AGM and GM, the nature of Costco’s culture and its effect on

15 women.” Id.

16

Relevant to the court’s analysis of commonality, the court largely denied Defendant’s motion

17 to strike Plaintiffs’ experts under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

18 (1993). The court found that each of Plaintiffs’ experts met the Daubert test, with one partial

19 exception. The court struck “Dr. Drogin’s analysis of the average years to reach AGM found in ¶ 22

20 and Table 8 of the Drogin Declaration,” because he had improperly “truncated the time period

21 analyzed in order to reach the conclusion that a statistically significant disparity exists in the average

22 number of years men and women take to be promoted from Senior Staff positions to AGM

23 positions.” Ellis I, 240 F.R.D. at 648. The court rejected Defendant’s remaining Daubert challenges

24 to Plaintiffs’ experts’ conclusions. Defendant did not challenge the court’s Daubert findings on

25 appeal, and the Ninth Circuit specifically noted that the court’s rulings on this issue survived review.

26 Ellis II, 657 F.3d at 981 n.6 (“[W]e affirm the district court’s decision to not strike Plaintiffs’

27 experts’ declarations and consider Costco’s challenges to Plaintiffs’ experts only in our review of

28 the district court’s Rule 23(a) analysis.”).

12

United States District Court For the Northern District of California

1

4. Typicality

2

Fourth, the district court determined that Plaintiffs had satisfied the typicality requirement.

3 The court “reject[ed] Costco’s contention that the named plaintiffs have unique claims,” such as

4 sexual harassment or breach of contract claims that would differ from the class as a whole. Ellis I,

5 240 F.R.D at 641. The court further concluded that “Costco’s allusions to unique defenses [are not]

6 sufficient to defeat typicality. The court need not address the merits of each of the proposed

7 defenses; rather, it is enough to say that as a general matter, individualized defenses do not defeat

8 typicality.” Id. (citing Hanon v. Dataproducts Corp., 976 F.2d 497, 508-09 (9th Cir. 1992)).

9

5. Adequacy

10

Fifth, the court concluded that the Named Plaintiffs were adequate representatives of the

11 class. Id. at 641-42. As discussed further below, although the Ninth Circuit vacated this finding in

12 part, adequacy is no longer at issue in this case based on Plaintiffs’ new proposed 23(b) class

13 structure.

14

6. Rule 23(b)(2)

15

Sixth, the court found that Plaintiffs met the requirements for certification under Rule

16 23(b)(2). The court concluded that Plaintiffs’ injunctive relief claims predominated, and that

17 therefore Plaintiffs’ compensatory and punitive damages claims could properly be considered within

18 a (b)(2) class as well. Id. at 642-43. The court found that “[t]he need for individualized

19 determinations of compensatory damages need not defeat certification under Rule 23(b)(2); rather,

20 the court can accommodate this need by bifurcating the trial into different phases.” Id. at 643. The

21 court further concluded that “[p]unitive damages claims are suitable for certification under Rule

22 23(b)(2) because such a claim focuses on the conduct of the defendant and not the individual

23 characteristics of the plaintiffs.” Id. (citation omitted).

24 C. Ninth Circuit’s Opinion

25

On appeal, the Ninth Circuit affirmed in part and vacated in part Judge Patel’s decision.

26 Ellis II, 657 F.3d 970. As relevant to the current motions, the Ninth Circuit vacated the district

27 court’s findings regarding commonality, finding that the district court had not engaged in the

28 required “rigorous analysis” of Plaintiffs’ contentions regarding commonality, including considering

13

United States District Court For the Northern District of California

1 the merits as necessary, but instead had erroneously applied a Daubert standard to the parties’

2 proffered evidence without examining its persuasiveness. Id. at 981. The court further found that

3 the district court had erred in its typicality analysis by failing to address Defendant’s purported

4 unique defenses to the Named Plaintiffs’ claims. Id. at 984-85. Under Rule 23(b), the Ninth Circuit

5 found that the district court had erred in certifying the class under Rule 23(b)(2) because Dukes had

6 called into doubt the notion that monetary relief could be available through a (b)(2) class. Id. at 986.

7 Accordingly, the Ninth Circuit vacated the district court’s (b)(2) finding and remanded for the court

8 to apply the Dukes standard and determine whether the class could be certified under (b)(2) and/or

9 (b)(3). Id. at 987. Because these specific rulings are crucial to the Court’s task on remand, the

10 Court will describe the Ninth Circuit’s rationale with respect to each decision in more detail in the

11 sections below.

12

The Ninth Circuit made other rulings that are not directly raised by the parties in the current

13 round of motions. First, it found that at least one plaintiff, Elaine Sasaki, had standing. Id. at 974.

14 As noted above, Defendant does not raise any challenge regarding standing before this Court.

15 Second, it found that Ms. Sasaki was an adequate class representative to pursue injunctive relief, but

16 that the other two Named Plaintiffs could not adequately represent an injunctive relief class because

17 they were former employees. Id. at 974-75. However, Defendant does not currently challenge the

18 adequacy of any Plaintiff before this Court, because Plaintiffs now seek certification of a (b)(2)

19 injunctive relief class represented by Sasaki, and a (b)(3) damages class represented by all three

20 Named Plaintiffs. Accordingly, adequacy is not at issue in the parties’ current motions.

21 D. Plaintiffs’ New Class Certification Proposals

22

On remand, Plaintiffs have made certain changes to their class certification proposals.

23 Specifically, Plaintiffs propose a hybrid class certification approach under Rule 23(b), and request

24 that the Court certify (1) an injunctive relief class of current employees only under (b)(2)

25 represented by Plaintiff Sasaki, through which the Court would determine liability and injunctive

26 relief; and (2) a monetary relief class of both current and former employees under (b)(3) represented

27 by all Named Plaintiffs, through which the Court would adjudicate all remedies, including punitive

28

14

United States District Court For the Northern District of California

1 damages. Plaintiffs alternatively request that the Court certify injunctive and classwide liability

2 claims as “particular issues” under 23(c)(4).

3

Plaintiffs propose the following trial plan. In Stage One (Part One) of the proceedings,

4 Plaintiffs propose that the jury decide: (1) Whether Costco has engaged in a pattern or practice of

5 discrimination (liability for classwide disparate treatment); (2) Whether Costco’s conduct meets the

6 standard for an award of punitive damages; (3) If liable for punitive damages, the aggregate amount

7 of punitive damages owed to the class (with the Court retaining discretion to adjust said damages

8 after Stage Two); and (4) Whether Costco is liable to the named Plaintiffs for gender discrimination

9 and, if so, in what amount. Plaintiffs propose that the Court will then decide whether Costco’s

10 employment practices have had an adverse impact on the class (prima facie case of disparate

11 impact). In Stage One (Part Two) of the proceedings, Plaintiffs propose for the Court to determine

12 (1) Whether Costco’s employment practices were justified by business necessity (defense to the

13 disparate impact claim), and if so, whether there was a less discriminatory alternative; and (2) In the

14 event of a liability finding, appropriate injunctive relief. Finally, in Stage Two, Plaintiffs propose

15 individual hearings to determine back pay and compensatory damages and to adjudicate individual

16 defenses. The Court would then adjust the punitive damages award to reflect any due process

17 concerns as to its proportionality to actual damages awarded.

18

Defendant challenges Plaintiffs’ proposed class certification (or recertification) on several

19 grounds. First, Costco argues that Plaintiffs cannot meet the commonality or typicality requirements

20 of Rule 23(a). Defendant does not raise a challenge as to numerosity or adequacy. Second, it argues

21 that Plaintiffs do not meet the requirements of either (b)(2) or (b)(3) for class certification. Third, it

22 argues that Plaintiffs’ punitive damages claims are not certifiable. Finally, it argues that certification

23 under 23(c)(4) would be inappropriate.

24

III. DISCUSSION

25 A. Evidentiary Dispute Re Costco’s Declarations

26

As a preliminary matter, the Court notes that Costco submits numerous declarations from its

27 employees in support of its motion to eliminate class claims. However, Plaintiffs inform the Court

28 that such declarations were the subject of considerable dispute during the prior round of class

15

United States District Court For the Northern District of California

1 certification briefing before Judge Patel. See Plfs’ Cross-Mot., Docket No. 664, at 3 n.1.

2 Specifically, Defendant procured these declarations after discovery had closed and without notice to

3 counsel or disclosure of the declarants. In response to Plaintiffs’ motion to strike the declarations,

4 Judge Patel ordered Defendant to produce the declarants for cross-examination or withdraw them.

5 The parties subsequently stipulated that Defendant would withdraw portions of the declarations and

6 that the remaining portions would be considered for Rule 23 purposes only. Specifically, the parties

7 stipulated, in relevant part, to the following:

8

(1) Language in putative class member declarations (including the heading “NO

9 GENDER DISCRIMINATION”) stating the conclusion that the declarant or anyone else has never

10 experienced or observed gender discrimination or that Costco has never discriminated against

11 women or words to that effect is withdrawn and will not be considered by the Court.

12

(2) Language in putative class member declarations that plaintiffs do not represent the

13 declarant’s interests or that she does not wish to represented by plaintiffs or their counsel or words

14 to that effect is withdrawn and will not be considered by the Court.

15

(3) The remainder of the declarations may be cited for Rule 23 purposes only, and

16 neither side waives the right to argue the weight to be given to said declarations. In particular, the

17 declarations may not be used to impeach the testimony of any class member or to limit her remedies

18 or representation in this case.

19 Stipulation Re: Plfs’ Mot. to Strike, Docket No. 484. Judge Patel accepted the stipulation and

20 further ordered that the court may require testimony from the declarants if necessary, and that it may

21 order testimony from a Costco 30(b)(6) witness regarding the preparation of Costco’s declarations.

22 Order Re: Plfs’ Mot. to Strike, Docket No. 486, at 2.

23

Despite this stipulation, Defendant cites to withdrawn portions of these declarations in its

24 briefing and in other declarations by, e.g., Defense counsel. Plaintiffs request that the Court strike

25 those portions of the declarations already withdrawn under the parties’ previous stipulation.

26 Defendant does not respond to Plaintiffs’ argument. Accordingly, the Court STRIKES those

27 portions of the declarations Defendant was already ordered to withdraw, and will not consider

28 Defendant’s references to declarants’ statements denying discrimination.

16

United States District Court For the Northern District of California

1 B. Motion for Class Certification

2

Rule 23 of the Federal Rules of Civil Procedure permits Plaintiffs to sue as representatives of

3 a class only if

4

(1) the class is so numerous that joinder of all members is

impracticable;

5

(2) there are questions of law or fact common to the class;

6

(3) the claims or defenses of the representative parties are typical of

7

the claims or defenses of the class; and

8

(4) the representative parties will fairly and adequately protect the

interests of the class.

9

10 Fed. R. Civ. P. 23(a). In addition, a purported class must be certified under Rule 23(b) by satisfying

11 any one of its prongs. The two alternative prongs under which Plaintiffs seek certification permit

12 classwide treatment if

13

(2) 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

14

corresponding declaratory relief is appropriate respecting the class as a

whole; or

15

(3) the court finds that the questions of law or fact common to class

16

members predominate over any questions affecting only individual

members, and that a class action is superior to other available methods

17

for fairly and efficiently adjudicating the controversy.

18 Fed. R. Civ. P. 23(b).

19

As noted above, Plaintiffs seek a hybrid certification of both a Rule 23(b)(2) (for liability and

20 injunctive relief) and (b)(3) (for monetary relief) class. Plaintiffs seek to utilize a multi-staged

21 bifurcated trial system, in which the parties would first litigate classwide liability and injunctive

22 relief based on Plaintiffs’ claims for pattern-or-practice intentional discrimination, as well as

23 disparate impact.

24

As the Supreme Court reaffirmed in Dukes, pattern-or-practice cases alleging disparate

25 treatment under Title VII typically follow a bifurcated, burden-shifting structure laid out by Int’l

26 Broth. of Teamsters v. United States, 431 U.S. 324 (1977):

27

In a pattern-or-practice case, the plaintiff tries to “establish by a

preponderance of the evidence that ... discrimination was the

28

company’s standard operating procedure[,] the regular rather than the

17

United States District Court For the Northern District of California

1

unusual practice.” [Teamsters, 431 U.S. at 336]; see also Franks v.

Bowman Transp. Co., 424 U.S. 747, 772 (1976). If he succeeds, that

2

showing will support a rebuttable inference that all class members

were victims of the discriminatory practice, and will justify “an award

3

of prospective relief,” such as “an injunctive order against the

continuation of the discriminatory practice.” Teamsters, supra, at 361,

4

97 S. Ct. 1843.

5

. . . .

6

We have established a procedure for trying pattern-or-practice cases

that gives effect to [Title VII’s] statutory requirements. When the

7

plaintiff seeks individual relief such as reinstatement or backpay after

establishing a pattern or practice of discrimination, “a district court

8

must usually conduct additional proceedings ... to determine the scope

of individual relief.” Teamsters, 431 U.S., at 361, 97 S. Ct. 1843. At

9

this phase, the burden of proof will shift to the company, but it will

have the right to raise any individual affirmative defenses it may have,

10

and to “demonstrate that the individual applicant was denied an

employment opportunity for lawful reasons.” Id., at 362, 97 S. Ct.

11

1843.

12 Dukes, 131 S. Ct. at 2552 n.7, 2561. Using this framework, Plaintiffs propose to adjudicate liability

13 for their pattern-or-practice disparate treatment claim in Stage One of the proceedings.

14

Similarly, Plaintiffs propose to adjudicate the initial phase of their disparate impact claim in

15 Stage One, in which they would seek to “‘establish by a preponderance of the evidence that the

16 employer “uses a particular employment practice that causes a disparate impact on the basis of race,

17 color, religion, sex, or national origin.”’” United States v. City of New York, 276 F.R.D. 22, 34

18 (E.D.N.Y. 2011) (discussing Teamsters approach for both disparate impact and disparate treatment

19 claims) (quoting Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir. 2001),

20 abrogated on other grounds by Dukes, 131 S. Ct. at 2560-62; 42 U.S.C. § 2000e–2(k)(1)(A)(i)).

21 Defendant would then have the opportunity to demonstrate that the challenged practices are

22 “consistent with business necessity” and that there was no less discriminatory alternative. §§

23 2000e–2(k)(1)(A)(i)-(ii).

24

If Plaintiffs prevail on either claim, the Court could fashion classwide injunctive relief. In

25 addition, in Stage Two of the case, if Plaintiffs prevail on either of their claims, Plaintiffs propose

26 ///

27 ///

28 ///

18

United States District Court For the Northern District of California

1 Teamsters hearings in order to adjudicate individual claims for backpay or particularized injunctive

2 relief and compensatory damages, as well as the individual’s share of any punitive damages.6

3

Plaintiffs contend that each of their claims satisfies the Rule 23(a) factors and either the Rule

4 23(b)(2) or (b)(3) factors.

5

1. Rule 23(a)

6

Rule 23(a) requires a purported class to satisfy four criteria for certification: numerosity,

7 commonality, typicality, and adequacy of the representatives. Fed. R. Civ. Pro. 23(a). Failure to

8 meet any of the criteria defeats the motion. Rutledge v. Elect. Hose & Rubber Co., 511 F.2d 668,

9 673 (9th Cir. 1975) (citation omitted).

10

a. Numerosity

11

Plaintiffs satisfy the numerosity requirement if “the class is so large that joinder of all

12 members is impracticable.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). In

13 this case, Plaintiffs easily meet the numerosity requirement. See Wang v. Chinese Daily News, 231

14 F.R.D. 602, 607 (C.D. Cal. 2005), vacated on other grounds, 132 S. Ct. 74 (2011) (100 or more

15

6 While Defendant challenges Plaintiffs’ citation to Teamsters and attempts to distinguish it

16

on the basis that it “is a government-initiated case that did not implicate Rule 23,” Teamsters has frequently been employed in the Title VII class action context, with the Supreme Court’s approval.

17

See, e.g., Dukes, 131 S. Ct. at 2552 & n.7, 2556, 2561 (discussing Teamsters in the context of Rule 23 analysis); Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 n.9 (1984)

18

(“Although Teamsters involved an action litigated on the merits by the Government as plaintiff under § 707(a) of the Act, it is plain that the elements of a prima facie pattern-or-practice case are

19

the same in a private class action.”) (citation omitted); Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 147 (2d Cir. 2012) (describing “the burden-shifting framework set out in

20

Teamsters and available both to the government in § 2000e–6 litigation and to class-action plaintiffs in private actions alleging discrimination” as recognized by Dukes and previous cases) (citations

21

omitted); Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 179 n.11 (3d Cir. 2009) (“Since Cooper, courts of appeals have used the Teamsters two-stage framework to analyze pattern-or-

22

practice claims brought as private-plaintiff class actions under Title VII.”) (internal citations omitted); Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir. 2001) (using

23

Teamsters approach in connection with Rule 23 motion for class certification); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760 (4th Cir. 1998) (“The courts of appeals have . . . permitted

24

pattern or practice class action suits using the Teamsters method of proof.”), vacated on other grounds, 527 U.S. 1031 (1999); Easterling v. Connecticut Dept. of Correction, 278 F.R.D. 41, 48

25

(D. Conn. 2011) (using Teamsters framework in disparate impact class action); Karp v. CIGNA Healthcare, Inc., CIV.A. 11-10361-FDS, 2012 WL 1358652, at *8 (D. Mass. Apr. 18, 2012)

26

(describing Teamsters pattern-or-practice claims as “a method of proof [under Title VII] with two components: an evidentiary component (that is, a plaintiff may prove unlawful discrimination

27

through evidence that the company engaged in a pattern or practice of discrimination, and that the pattern or practice caused her injury) and a burden-shifting component (that is, when a plaintiff has

28

proved the existence of a pattern or practice and an adverse employment action, the burden shifts to the defendant to disprove causation)”).

19

United States District Court For the Northern District of California

1 plaintiffs leads to a presumption of numerosity); Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258,

2 262 (S.D. Cal. 1998) (finding a purported class of forty members sufficient to satisfy numerosity)

3 (citation omitted). Defendant does not contest this factor.

4

b. Commonality

5

Plaintiffs must demonstrate that there are “questions of law or fact common to the class” in

6 order to satisfy Rule 23(a)(2). Plaintiffs need not demonstrate that all questions are common to the

7 class; rather, it is sufficient if either “shared legal issues with divergent factual predicates” or “a

8 common core of salient facts coupled with disparate legal remedies within the class” are present.

9 Hanlon, 150 F.3d at 1019-20; see also, e.g., Johnson v. Gen. Mills, Inc., 278 F.R.D. 548, 551 (C.D.

10 Cal. 2012) (citing above passage from Hanlon post-Dukes). “Even a single [common] question”

11 will suffice to satisfy Rule 23(a). Dukes, 131 S. Ct. at 2556 (citation omitted). However, Plaintiffs

12 must “demonstrate that the class members have suffered the same injury,” not “merely that they

13 have all suffered a violation of the same provision of law.” Id. at 2551. Moreover, “What matters to

14 class certification . . . is not the raising of common ‘questions’ – even in droves – but, rather the

15 capacity of a classwide proceeding to generate common answers apt to drive the resolution of the

16 litigation.” Id. (internal quotation omitted) (emphasis in original).

17

In order to assess commonality, “it may be necessary for the court to probe behind the

18 pleadings before coming to rest on the certification question.” General Tele. Co. of S.W. v. Falcon,

19 457 U.S. 147, 160 (1982) (“[T]he class determination generally involves considerations that are

20 enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.”) (quotation

21 omitted); see also Dukes, 130 S. Ct. at 2551. “Here, the question of commonality overlaps with

22 Plaintiffs’ claim that Costco’s system of promotion and corporate culture constitutes a pattern or

23 practice of discrimination.” Ellis II, 657 F.3d at 980. Thus, the court must consider the merits to the

24 extent necessary to determine commonality. However, in peeking at the merits to determine whether

25 commonality is present, “[t]he court may not go so far . . . as to judge the validity of these claims.”

26 USW v. ConocoPhillips Co., 593 F.3d 802, 808-09 (9th Cir. 2010) (quoting Staton v. Boeing Co.,

27 327 F.3d 938, 954 (9th Cir. 2003)); Ellis II, 657 F.3d at 983 n.8 (“The district court is required to

28 examine the merits of the underlying claim in this context, only inasmuch as it must determine

20

United States District Court For the Northern District of California

1 whether common questions exist; not to determine whether class members could actually prevail on

2 the merits of their claims. . . . To hold otherwise would turn class certification into a mini-trial.”)

3 (internal citations omitted); In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 678

4 F.3d 409, 417-18 (6th Cir. 2012) (“[A] district court must resolve factual disputes necessary to class

5 certification, but [] ‘the court should not turn the class certification proceedings into a dress

6 rehearsal for the trial on the merits.’”) (quoting Messner v. Northshore Univ. HealthSystem, 669

7 F.3d 802, 811 (7th Cir. 2012)); see also id. (citing Third Circuit decision post-Dukes articulating

8 same principle).

9

Because the parties’ central dispute concerns the impact of Dukes on the viability of

10 Plaintiffs’ class claims, the Court first reviews Dukes’s holding on commonality. The Court then

11 reviews the Ninth Circuit’s instructions in Ellis II to be applied on remand before proceeding to

12 examine the parties’ competing arguments as to commonality.

13

i. Dukes

14

Dukes addressed “one of the most expansive class actions ever.” 131 S. Ct. at 2546. The

15 Dukes class consisted of “one and a half million plaintiffs, current and former female employees of

16 petitioner Wal–Mart who allege that the discretion exercised by their local supervisors over pay and

17 promotion matters violates Title VII by discriminating against women.” Id. These employees were

18 spread across thousands of stores, in varying positions inside and outside of management. Indeed,

19 Plaintiffs purported to represent all female Wal-Mart employees and challenged Wal-Mart’s pay and

20 promotion policies throughout its hierarchy. Id. at 2557 (commenting that class members “held a

21 multitude of different jobs, at different levels of Wal–Mart’s hierarchy, for variable lengths of time,

22 in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female),

23 subject to a variety of regional policies that all differed”) (quoting Dukes, 603 F.3d at 652 (Kozinski,

24 J., dissenting)). Plaintiffs’ theory of commonality was “that a strong and uniform ‘corporate culture’

25 permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of

26 each one of Wal–Mart’s thousands of managers – thereby making every woman at the company the

27 victim of one common discriminatory practice.” Id. at 2548.

28

21

United States District Court For the Northern District of California

1

Addressing the standard courts must apply in assessing commonality, the Supreme Court

2 explained that “[c]ommonality requires the plaintiff to demonstrate that the class members have

3 suffered the same injury. This does not mean merely that they have all suffered a violation of the

4 same provision of law.” Id. at 2551 (internal citations and quotation marks omitted). Instead,

5 plaintiffs’ “claims must depend upon a common contention . . . of such a nature that it is capable of

6 classwide resolution – which means that determination of its truth or falsity will resolve an issue that

7 is central to the validity of each one of the claims in one stroke.” Id. Thus, “[w]hat matters to class

8 certification . . . is not the raising of common ‘questions’ – even in droves – but, rather the capacity

9 of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.

10 Dissimilarities within the proposed class are what have the potential to impede the generation of

11 common answers.” Id. (internal quotation omitted) (emphasis in original).

12

In other words, “[w]ithout some glue holding the alleged reasons for all those decisions

13 together, it will be impossible to say that examination of all the class members’ claims for relief will

14 produce a common answer to the crucial question why was I disfavored.” Id. (emphasis in original).

15 In the context of pattern-or-practice discrimination cases alleging disparate treatment, the Supreme

16 Court specifically identified the “glue” that might create commonality as relevant to this case:

17 “[s]ignificant proof that an employer operated under a general policy of discrimination conceivably

18 could justify a class of both applicants and employees if the discrimination manifested itself in

19 hiring and promotion practices in the same general fashion, such as through entirely subjective

20 decisionmaking processes.” Id. at 2553 (quoting Falcon, 457 U.S. at 159 n.15).

21

In Dukes, the Court found such “significant proof” “entirely absent,” because the “only

22 evidence of a ‘general policy of discrimination’ respondents produced was the testimony of” their

23 sociological expert as to Wal-Mart’s “strong corporate culture.” Id. at 2553. Instead, the Court

24 found that the only common “policy” the plaintiffs had demonstrated was one of allowing discretion,

25 which was merely “a policy against having uniform employment practices.” Id. at 2554 (emphasis

26 in original). The Court reasoned that the exercise of discretion itself is not evidence of any

27 discriminatory policy. While such a policy could, in certain instances, constitute a discriminatory

28 practice, “the recognition that this type of Title VII claim ‘can’ exist does not lead to the conclusion

22

United States District Court For the Northern District of California

1 that every employee in a company using a system of discretion has such a claim in common.” Id. at

2 2554. Because some people may exercise discretion in permissible ways and others may not,

3 Plaintiffs must “identif[y] a common mode of exercising discretion that pervades the entire

4 company.” Id. at 2554-55.

5

The Court found that the Dukes class had failed to identify such a “common mode” because

6 “[i]n a company of Wal–Mart’s size and geographical scope, it is quite unbelievable that all

7 managers would exercise their discretion in a common way without some common direction.” Id. at

8 2555 (emphasis added). Plaintiffs presented no direct evidence of such a “common direction,” nor

9 did they produce any persuasive statistical or anecdotal evidence indicating such common direction.

10 Specifically, because decisions were made at the store level (and not directed from higher levels of

11 the management hierarchy), the Court found that statistical evidence of regional disparities were not

12 probative of commonality because such disparities might be explained by only a small subset of

13 stores within each region. In addition, the Court found that even if there was a disparity in every

14 store, “that would still not demonstrate that commonality of issue exists” unless plaintiffs

15 successfully identified a “specific employment practice” or “common direction” from upper

16 management that tied the claims of all members of the class together. Id.

17

As Dukes acknowledged, the Supreme Court’s own prior precedent has recognized that the

18 exercise of discretion may provide the basis of a Title VII claim. This is especially so in the context

19 of a disparate impact claim. The disparate impact context highlights the rationale behind such a

20 claim, as an employer’s policy allowing for discretion could lead to lower-level managers’

21 discriminatory implementation of said discretion without any proven animus on the part of those

22 who granted the discretion. Dukes acknowledged that “in appropriate cases,’ giving discretion to

23 lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory – since

24 ‘an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same

25 effects as a system pervaded by impermissible intentional discrimination.’” 131 S. Ct. at 2554

26 (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91 (1988) (“If an employer’s

27 undisciplined system of subjective decisionmaking has precisely the same effects as a system

28 pervaded by impermissible intentional discrimination, it is difficult to see why Title VII’s

23

United States District Court For the Northern District of California

1 proscription against discriminatory actions should not apply. . . . We conclude, accordingly, that

2 subjective or discretionary employment practices may be analyzed under the disparate impact

3 approach in appropriate cases.”)). However, even in the disparate impact context, the Court

4 concluded, a mere “policy” of allowing discretion is insufficient to raise a common question for

5 class action purposes. Instead, a proposed class must identify a “specific employment practice”

6 under which said discretion operates to state a disparate impact claim. Dukes, 131 S. Ct. at 2555

7 (citing Watson, 487 U.S. at 994 (“[T]he plaintiff’s burden in establishing a prima facie case goes

8 beyond the need to show that there are statistical disparities in the employer’s work force. The

9 plaintiff must begin by identifying the specific employment practice that is challenged.”). Without

10 such a specific challenged practice, nothing ties the discretionary decisions together. Id. at 2556.

11

Thus, Dukes concluded that the plaintiffs had demonstrated no common issues with respect

12 to either their pattern-or-practice disparate treatment or their disparate impact claims. Id. at 2557.

13

As explained further below, the proposed classes in the instant case differ from that

14 examined in Dukes in several material ways. First, the size of the class at issue is a mere fraction of

15 that in Dukes. Although class size has no per se bearing on commonality, when the claims focus in

16 part on the exercise of managerial discretion, it is reasonable to suspect that the larger the class size,

17 the less plausible it is that a class will be able to demonstrate a common mode of exercising

18 discretion. See Chen-Oster v. Goldman, Sachs & Co., 10 CIV. 6950 LBS JCF, 2012 WL 2912741,

19 at *3 (S.D.N.Y. July 17, 2012) (“The Supreme Court suggested (when not explicitly stating) that the

20 sheer size of the [Dukes] class and the vast number and diffusion of challenged employment

21 decisions was key to the commonality decision. This makes a great deal of sense when the purpose

22 of the commonality enquiry is to identify ‘some glue holding the alleged reasons for all of [the

23 challenged] employment decisions together.’”) (quoting Dukes, 131 S. Ct. at 2552) (emphasis

24 omitted)); Ross v. RBS Citizens, N.A., 667 F.3d 900, 909 (7th Cir. 2012) (“In Dukes, 1.5 million

25 nationwide claimants were required to prove that thousands of store managers had the same

26 discriminatory intent in preferring men over women for promotions and pay raises.”). As this case

27 only involves applicants to GM and AGM positions, the class size of approximately 700 is a fraction

28 of the 1.5 million claimants in Dukes.

24

United States District Court For the Northern District of California

1

Second, the scope of the proposed class is far more limited and focused than that in Dukes.

2 Here, the class covers only two closely-related, management-level positions (AGM and GM) that

3 share a uniform job description across the class, and presents a targeted challenge to the failure to

4 promote women into those positions. In contrast, Dukes covered women in all positions at Wal-

5 Mart in thousands of stores and raised claims based on both pay and promotion policies. Thus, the

6 scope of this class and its claims are worlds away from Dukes.

7

Third, and most important, Plaintiffs in this case identify specific employment practices

8 Costco implements companywide under the influence and control of top management. Unlike in

9 Dukes, which the Supreme Court concluded merely identified the delegation of discretion (i.e., the

10 absence of a policy), here Plaintiffs identify specific practices and a common mode of guided

11 discretion directed from the top levels of the company. Cf. Dukes, 131 S. Ct. at 2555 (“In a

12 company of Wal–Mart’s size and geographical scope, it is quite unbelievable that all managers

13 would exercise their discretion in a common way without some common direction.”) (emphasis

14 added). It is this “common direction” and the identification of specific practices (other than the

15 mere general delegation of authority), in addition to the smaller size and scope of the class, that

16 separates this case from Dukes. The Court details Plaintiffs’ persuasive evidence of these practices

17 that distinguish Dukes below.

18

ii. Ellis II

19

In Ellis II, the Ninth Circuit vacated Judge Patel’s holding regarding commonality and

20 remanded for the Court to conduct the required “rigorous analysis” under Rule 23 to determine

21 whether Plaintiffs have provided significant proof of common employment practices. The Ninth

22 Circuit directed the district court to determine whether Plaintiffs had identified “a common question

23 that will connect many individual promotional decisions to their claim for class relief,” examining

24 the merits as necessary to make that determination. Ellis II, 657 F.3d at 981. The court also

25 identified some points of agreement with Judge Patel’s decision in Ellis I. Specifically, the court

26 stated, “we agree that the district court was not required to resolve factual disputes regarding: (1)

27 whether women were in fact discriminated against in relevant managerial positions at Costco, or (2)

28

25

United States District Court For the Northern District of California

1 whether Costco does in fact have a culture of gender stereotyping and paternalism.” Id. at 983.

2 Nonetheless,

3

the district court was required to resolve any factual disputes

necessary to determine whether there was a common pattern and

4

practice that could affect the class as a whole. If there is no evidence

that the entire class was subject to the same allegedly discriminatory

5

practice, there is no question common to the class. In other words, the

district court must determine whether there was “significant proof that

6

[Costco] operated under a general policy of discrimination.”

7 Id. (emphasis in original) (quoting Dukes, 131 S. Ct. at 2553 (alteration omitted)). The court found

8 that, in examining this evidence, “the district court seems to have confused the Daubert standard it

9 correctly applied to Costco’s motions to strike with the ‘rigorous analysis’ standard to be applied

10 when analyzing commonality. . . . [T]o the extent the district court limited its analysis of whether

11 there was commonality to a determination of whether Plaintiffs’ evidence . . . was admissible, it did

12 so in error.” Id. at 982. Instead, “the district court was required to resolve any factual disputes

13 necessary to determine whether there was a common pattern and practice that could affect the class

14 as a whole.” Id. at 983 (emphasis in original).

15

A key factual question on remand, the Ninth Circuit noted, was whether disparities existed

16 across Costco’s eight regions or whether such disparities were merely confined to a few regions.

17 Disparity across the regions would lend credence to Plaintiffs’ allegations that “promotion decisions

18 are based on the biased attitudes of the CEO and upper management.” Id. Because the parties’

19 experts disputed the existence of disparities across regions, the Ninth Circuit instructed the district

20 court on remand to “examin[e] the merits to decide this issue.” Id. at 984. The Court’s task on

21 remand is therefore to “judg[e] the persuasiveness of the evidence presented” on the issue of

22 commonality. Id. at 982.

23

The Ninth Circuit’s opinion did not explicitly consider any differences between Plaintiffs’

24 disparate treatment and disparate impact claims as they relate to commonality. However, because

25 there are differences with respect to the way Dukes might be applied to disparate treatment, as

26 opposed to disparate impact claims, the Court will address these claims separately below. First, the

27 Court concludes that, with respect to the Plaintiffs’ disparate treatment claim, Plaintiffs have

28 provided “significant proof” that Defendant operates under a general policy of discrimination and

26

United States District Court For the Northern District of California

1 that Defendant’s management utilizes a “common mode of exercising discretion,” and have

2 therefore satisfied the standard for certification under Rule 23(a). Dukes, 131 S. Ct. at 2553, 2554.

3 Second, the Court further concludes that commonality is even clearer with respect to disparate

4 impact, as Plaintiffs have identified specific employment practices they allege have caused the

5 gender disparity in promotions to AGM and GM positions.

6

iii. Disparate Treatment

7

Plaintiffs argue that the Ninth Circuit only vacated and remanded for reconsideration of the

8 specific issue it mentioned in the context of commonality: whether the gender disparity in

9 promotions is consistent across the company, rather than a problem isolated to certain regions. See

10 Plfs’ Cross-Mot., Docket No. 664, at 20. Thus, Plaintiffs contend the following finding from Judge

11 Patel still stands and demonstrates that Costco has uniform personnel and promotion policies:

12

Defendants argue that promotion decisions to AGM and GM vary by

region and that promotion decisions to AGM are made at the store

13

level. However, these assertions are unsupported and do not

undermine commonality. Rather, the evidence before the court

14

indicates that officers at the regional and corporate levels are involved

in promotion decisions. The absence of written criteria for promotion

15

as well as other evidence that the process is subjective satisfies the

court that there is a policy common to the class in this regard. See

16

Bates v. UPS, 204 F.R.D. 440, 448 (N.D. Cal. 2001) (Henderson, J.).

17 Ellis I, 240 F.R.D. at 639. Although one could read Ellis II to support Plaintiffs’ argument – indeed,

18 the fact section of Ellis II indicates that Costco operated under common, companywide promotion

19 policies and practices – other portions of the Ninth Circuit’s opinion suggest this Court should

20 reexamine commonality more broadly than simply the regional-versus-national disparity debate.

21 See Ellis II, 657 F.3d at 983 n.7 (commenting on the parties’ dispute over “whether promotional

22 decisions for AGMs were made by the GM of the local warehouse, or were made or strongly

23 influenced by upper management at Costco headquarters” as relevant to commonality). Thus, out of

24 an abundance of caution, the Court will examine the parties’ evidence pertaining to commonality as

25 a whole without treating Judge Patel’s disputed findings as conclusive on this question except where

26 affirmed by the Ninth Circuit.

27

In the instant case, Plaintiffs have produced “significant proof” that “the entire class was

28 subject to the same allegedly discriminatory practice[s].” Ellis II, 657 F.3d at 983. This proof

27

United States District Court For the Northern District of California

1 comes in three general categories. First, Plaintiffs produce persuasive evidence of numerous

2 common policies and practices under which Costco conducts promotions to AGM and GM. Second,

3 Plaintiffs similarly demonstrate a pervasive companywide culture that, along with the common

4 policies and practices, guide Costco managers’ discretion in making promotion decisions. Plaintiffs

5 allege that this culture generates and reinforces discriminatory outcomes. Third, Plaintiffs

6 demonstrate classwide effects purportedly caused by said policies and practices affecting all regions

7 (the specific question identified by the Ninth Circuit for the Court to address on remand).

8

A. Classwide Policies & Practices – Costco’s Promotion System

9

1. High Level Management Involvement

10

As to the first category, Plaintiffs identify a common, companywide promotion system

11 within Costco that is made up of numerous common components. Specifically, reviewing the record

12 as a whole, there are several companywide policies and practices that comprise Costco’s promotion

13 system, most of which Defendant concedes.

14

First, Costco imposes the same recruitment and selection process for promotion to AGM and

15 GM across the company, both in terms of the persons generally involved in promotion decisions and

16 the process by which they make those decisions. Costco has a policy and practice of promoting

17 “virtually 100%” from within. Sinegal Depo., Docket No. 665, Ex. 8, at 42. Further, it has imposed

18 a conscious policy and practice against job posting for AGM and GM openings. Matthews Depo.,

19 Docket No. 665, Ex. 5, at 150-51 (in response to recommendation that company impose job posting

20 for all positions, company established posting only for positions below AGM and GM); Sinegal

21 Depo., Docket No. 665, Ex. 8, at 123-24 (CEO Sinegal has “always felt very . . . strongly and very

22 adamantly, that [AGM and GM positions] were not the types of jobs that should be up for posting”);

23 id. at 128 (acknowledging having described the idea of posting for AGM and GM positions as “bull

24 shit”).7 Costco similarly does not post for rotations within Senior Staff Manager (“SSM”) positions,

25

7 Unlike in Dukes, which addressed the mere absence of a posting requirement – and the fact

26

that local discretion led to inconsistent job posting – here Plaintiffs offer unrebutted evidence that Costco has an affirmative companywide policy against posting for the jobs at issue. Compare Dukes

27

v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 149 (N.D. Cal. 2004) (describing the lack of consistent job posting), with Salaried Job Posting Policy, Docket No. 665, Ex. 27 (Costco job posting policy

28

stating, “All salaried positions in the warehouse EXCEPT the [AGM] and the [GM] must be posted”).

28

United States District Court For the Northern District of California

1 the positions from which AGM candidates are promoted. Posting is only required to fill an open

2 SSM position. See, e.g., Salaried Job Posting Policy, Docket No. 665, Ex. 27. Costco does not use

3 an application or interview process for AGM and GM positions; employees are tapped on the

4 shoulder for advancement. See, e.g., Glenn Depo., Docket No. 665, Ex. 3, at 22; see also Petty

5 Decl., Docket No. 615, ¶¶37-38; Sasaki Decl., Docket No. 143, ¶ 15. Costco does not use internal

6 written procedures for selecting promotion candidates. See, e.g., Zook Depo., Docket No. 665, Ex.

7 11, at 78-79.

8

Top management’s involvement in the promotion process is also consistent, and pervasive,

9 classwide. For GM promotions, the Regional and Senior VPs are the primary sources of candidate

10 recommendations, but the decisions must be approved all the way up the chain of command. See

11 Sinegal Depo., Docket No. 665, Ex. 8, at 23-24 (CEO reviews candidates for GM and “in most

12 instances I know who they are”); DiCerchio Depo., Docket No. 665, Ex. 1, at 48-50 (COO and CEO

13 approve GM selections, with input from district manager, regional manager, and EVP); Portera

14 Depo., Docket No. 544, Ex. O, at 84-85 (the regional and senior VPs provide EVP recommendations

15 for GM promotions); Schutt Depo., Docket No. 544, Ex. U, at 74-75 (EVP receives

16 recommendations from Senior VPs for GM promotions, discusses possible alternative candidates,

17 and reports recommendation to his boss and to Sinegal); Zook Depo., Docket No. 544, Ex. X, at

18 133-35 (EVP receives notice of GM promotions, along with DiCerchio and Sinegal); Zook Decl.,

19 Docket No. 653, ¶ 14 (EVP “oversee[s] the promotion process involving both GMs and AGMs”);

20 Larkin Decl., Docket No. 665, Ex. 20, ¶ 8 (Letter from Defense counsel to Plaintiffs’ counsel

21 stating, “For GM promotions, the persons personally informed before final decision would be

22 District VP, Senior VP, Executive VP, CEP”). As part of upper management’s involvement, the

23 company uses a GM “promotables” list, generated and maintained at the regional level and reviewed

24 at higher executive levels, as the pool from which candidates are chosen. See Def’s Mot. to

25 Eliminate Class Claims, Docket No. 543, at 7; Portera Depo., Docket No. 544, Ex. O, at 84 (EVP

26 requests lists of promotables from AGM to GM once or twice a year); id. at 108-09 (evaluation

27 process for GM candidates is ongoing at all levels of the company, and “these individuals are

28 constantly monitored”); Zook Decl., Docket No. 653, ¶ 19; Booth Decl., Docket No. 558, ¶ 3;

29

United States District Court For the Northern District of California

1 Hoover Decl., Docket No. 586, ¶ 11; Omoss Decl., Docket No. 611, ¶¶ 5, 14. Candidates for GM

2 are also displayed in the Green Room at company headquarters. Sinegal Depo., Docket No. 665, Ex.

3 8, at 38-39, 65-69. More broadly, Costco senior management, including the CEO and EVPs as well

4 as District and Senior VPs, maintains a constant ongoing dialogue with warehouse-level

5 management about candidates for promotion, and CEO Sinegal reviews lists of promotable

6 candidates. Matthews Depo., Docket No. 665, Ex. 5, at 148-50.8

7

With respect to AGM selection, Costco characterizes these decisions as made locally, and

8 reviewed regionally. Based on the Court’s review of the record, this understates the extent of

9 regional and senior executives’ involvement in such decisions and the consistency of the challenged

10 policies across AGM and GM positions. See Ellis II, 657 F.3d at 985 (“The Costco policies and

11 culture challenged by Plaintiffs apply equally to AGM and GM promotion decisions.”). Instead, the

12 weight of the evidence supports the view that senior management oversees and directs the promotion

13 process for AGM candidates. First, and most importantly, senior executives – including EVPs and

14 the CEO – describe their continued oversight of and involvement in the AGM promotion process.

15 See, e.g., Sinegal Depo., Docket No. 544, Ex. V, at 41-42 (AGM decisions are made at the regional

16 level, and as CEO he has given “[a] lot” of instructions as to how to fill AGM positions); Schutt

17 Depo., Docket No. 544, Ex. U, at 76, 95-96 (AGM decision made at the regional level, with the GM,

18 regional manager, regional VP, and Senior VP involved, and “[m]any times” the Senior VP will

19 approve it); Portera Depo., Docket No. 544, Ex. O, at 122 (GM makes the “decision and

20 recommendation” for AGM promotions “in conjunction with their regional vice presidents, and

21 then the ultimate approval is given by a senior vice president of the region”); Zook Depo., Docket

22 No. 544, Ex. X, at 132, 135 (characterizing AGM promotions as being made by GM and District

23 Manager, but also stating that EVP has a role in making sure his regional managers and GMs have a

24 good pool of people promotable to AGM); Zook Decl., Docket No. 653, ¶¶ 7, 14-15 (stating that

25 EVP is informed of the decision and EVP “oversee[s] the promotion process involving both GMs

26

27

8 Although Mr. Matthews does not specify, the context of his testimony as to upper management’s “ongoing dialogue” regarding personnel who may be ready for promotion indicates

28

that he was testifying about management’s involvement in the promotion process as a whole, including both AGM and GM candidates. See Matthews Depo., Docket No. 665, Ex. 5, at 148-50.

30

United States District Court For the Northern District of California

1 and AGMs”); Hoover Depo., Docket No. 544, Ex. I, at 91-92 (GM, regional VP, and Senior VP are

2 involved in the AGM promotion decision, and the EVP is informed of the decision; stating further

3 that “[b]y the time you’re appointed assistant manager, everybody knows that person really well”);

4 Omoss Decl., Docket No. 611, ¶ 5 (characterizing GMs as the primary decisionmakers with respect

5 to AGM promotions, but admitting that as Texas VP he is “actively involved in the promotions of

6 both GMs and AGMs,” that GMs consult with him about candidates for promotion as he knows

7 them from his visits to the warehouses, and that he keeps and updates lists of promotable candidates

8 for AGM based on his own observations as well as those of GMs and other Costco employees); see

9 also Larkin Decl., Docket No. 665, Ex. 20, ¶ 8 (Letter from Defense counsel to Plaintiffs’ counsel

10 stating that the District VP, Senior VP, and Executive VP are all personally informed before a final

11 AGM decision).

12

Second, promotable lists for AGMs are maintained at the regional level, indicating regional

13 executives’ involvement in the process of identifying and selecting candidates for those positions.

14 Def’s Mot. to Eliminate Class Claims, Docket No. 543, at 7 (“Costco has written lists to identify

15 managers promotable to GM and AGM (as well as other positions).”); Mar Decl., Docket No. 598, ¶

16 15 (Regional VP used an AGM promotable list); Hickey Decl., Docket No. 583, ¶ 23 (as a GM,

17 provides list of promotables for AGM and GM to higher ups); Gaherty Depo., Docket No. 665, Ex.

18 2, at 58-59 (promotable list for AGM maintained in the region); Zook Decl., Docket No. 653, ¶ 19(f)

19 (promotable list for AGM maintained at regional level).

20

Third, class member declarations submitted by Costco indicate that decisions occur at the

21 regional level and that upper management is involved in the promotion process. See, e.g., Morgan

22 Decl., Docket No. 608, ¶ 20 (promoted to AGM by her Regional VP in Bay Area); Hagemeyer

23 Decl., Docket No. 580, ¶ 17 (GMs and VPs evaluate candidates for promotion to AGM during floor

24 walks); Mendoza Decl., Docket No. 604, ¶ 24 (GMs and VPs evaluate AGM promotables);

25 Loveland Decl., Docket No. 594, ¶ 20 (AGM decision made by Regional Manager or VP based on

26 GM’s recommendation); D’Agostino Decl., Docket No. 565, ¶ 30 (VPs make final decisions for

27 AGM promotions); Bolger Decl., Docket No. 557, ¶ 10 (received rotation to MM position after

28 conversation with District VP/Regional Operations Manager about advancement into AGM

31

United States District Court For the Northern District of California

1 position); Peterson Decl., Docket No. 614, ¶ 15 (did not make final decision as GM about AGM

2 promotions; decision occurred at the regional level); Ward Decl., Docket No. 631, ¶¶ 32, 35 (SVP

3 was informed of her interest in AGM position; GMs report information about people who are

4 interested in warehouse management (AGM or GM) to SVPs); Hickey Decl., Docket No. 583, ¶¶ 3-

5 4, 15, 23 (selected for AGM by District and Regional VPs; senior management team evaluates

6 candidates); Laureano Decl., Docket No. 592, ¶¶ 12, 20 (Regional VP is involved in AGM

7 promotions); Greek Decl., Docket No. 578, ¶ 17 (Regional Managers evaluate AGM candidates).

8

Moreover, Costco management repeatedly describe the fact that they are part of a close-knit,

9 centralized management team, and that regional personnel work closely with each other and with

10 national management. See, e.g., Portera Depo., Docket No. 665, Ex. 6, at 110-11 (“The way we run

11 our organization, although it’s a more regional and division oriented, work closely together as a

12 group and a team in developing policies and procedures, in developing individuals. There is quite a

13 bit of interaction between the [EVPs] and the [SVPs] of the company.”); Zook Depo., Docket No.

14 665, Ex. 11, at 21 (operations meetings are held every four weeks at headquarters with everyone

15 from Senior VP and up). As discussed further below, this close collaboration results in uniform

16 standards for both AGM and GM promotions, according to the CEO himself. See Sinegal Depo.,

17 Docket No. 665, Ex. 8, at 42-44.

18

Indeed, as part of senior management’s participation in, and influence over the promotion

19 process to both AGM and GM, Costco uses “floor walks” as an additional opportunity for senior

20 management to assess possible promotion candidates in stores on a regular basis and to engage in

21 informal mentorship. See, e.g., Cafiso Decl., Docket No. 559, ¶ 18; Cline Decl., Docket No. 563, ¶

22 21; Rosolino Decl., Docket No. 618, ¶ 32; Ward Decl., Docket No. 631, ¶ 29; Bejarano Decl.,

23 Docket No. 640, ¶ 25; Alvarez Decl., Docket No. 551, ¶ 9; Asch Decl., Docket No. 554, ¶ 15;

24 D’Agostino Decl., Docket No. 565, ¶ 25. Top executives – including VPs and up to and including

25 the CEO –participate in these walks to meet and evaluate store-level management. See, e.g., Def’s

26 Mot. to Eliminate Class Claims, Docket No. 543, at 7 (regional managers “visit warehouses

27 frequently”); see, e.g., Matthews Depo., Docket No. 665, Ex. 5, at 148-50 (the CEO and COO

28 “travel with each of the regionals and their district VP’s, and the EVP’s are usually along in that

32

United States District Court For the Northern District of California

1 same process, [through which they are] not only getting to meet and talk with the individuals that

2 they’re referring to, but in addition dealing with the district VP’s about who it is that is most

3 prepared at that point in time for additional responsibilities”); Eringer Decl., Docket No. 567, ¶¶ 44-

4 45 (regional and district managers, VPs, and CEO participated); Evans Decl., Docket No. 568, ¶ 30

5 (floor walks “are conducted by various levels of management, from the warehouse level all the way

6 up to the CEO”); Hinds Decl., Docket No. 584, ¶ 24 (VPs and CEO participated in walks).

7 Executives explain that Costco’s process of continual evaluation negates the need for formal, written

8 selection processes because candidates are well-known to upper management by the time they are

9 ready for promotion. See, e.g., Portera Decl., Docket No. 617, ¶ 5; Omoss Decl., Docket No. 611, ¶¶

10 7-8; Hoover Decl., Docket No. 586, ¶ 12.

11

2. Common Criteria

12

Beyond the procedural ground rules governing promotion decisions, Costco imposes

13 consistent substantive criteria for promotion into the AGM and GM positions that are well-known at

14 least among those making the promotion decisions. For example, candidates for GM must be

15 AGMs, and candidates for AGM must be SSMs. Sinegal Depo., Docket No. 665, Ex. 8, at 44; Zook

16 Depo., Docket No. 544, Ex. X, at 69-71. Potential AGMs typically must have merchandising

17 experience in the MM position, and generally should have experience in most if not all of the four

18 SSM positions. See, e.g., Mulligan Decl., Docket No. 647, ¶ 31 (Defendant’s expert asked to

19 assume MM experience was most valuable for promotion); Kadue Declaration, Docket No. 544, ¶¶

20 3, 4 (describing merchandising as positions that are critical to advancement, and listing declarations

21 in support); Zook Decl., Docket No. 653, ¶ 13; Drogin Decl., Docket No. 666, ¶ 12 (over 85% of

22 people promoted to AGM have MM experience). Costco also places a premium on schedule

23 flexibility and the ability and willingness to relocate. See, e.g., Mulligan Decl., Docket No. 647, ¶

24 32 (asked to so assume for purposes of defense expert report); Vachris Decl., Docket No. 627, ¶¶ 6,

25 9; Bolger Decl., Docket No. 557, ¶¶ 8, 16; Eringer Decl., Docket No. 567, ¶ 43; Evans Decl., Docket

26 No. 568, ¶ 31; Hagemeyer Decl., Docket No. 580, ¶¶ 14-15; Moore Decl., Docket No. 607, ¶¶ 18-

27 19; Spence Decl., Docket No. 624, ¶ 17; Ward Decl., Docket No. 631, ¶ 39; Whitney Decl., Docket

28 No. 632, ¶ 25.

33

United States District Court For the Northern District of California

1

CEO Sinegal personally instructs his staff as to the criteria they should employ in making

2 promotion decisions for AGM and GM and states that said criteria is uniform. Sinegal Depo.,

3 Docket No. 665, Ex. 8, at 29-30, 42-43 (describing criteria for both AGM and GM positions as

4 mandating candidates with “people skills,” “merchandising skills,” and “the ability to be adroit with

5 the numbers”); id. at 45 (criteria for AGMs “are the same throughout Costco in the United States”);

6 id. at 30 (standards for GM promotion are “generally the same” throughout the company, and “we

7 have a pretty clear understanding of what is required to be a” GM); see also Matthews Depo.,

8 Docket No. 665, Ex. 5, at 150 (stating that management rejected a recommendation to establish

9 clearer guidelines of job criteria for warehouse positions because the positions were already well-

10 defined throughout the company). Indeed, Defendant’s senior executives dispute any assertion that

11 the promotion process is undisciplined, haphazard, or varied based on the whims of local managers.

12 See, e.g., Schutt Decl., Docket No. 623, ¶¶ 7-11 (describing orderly process and stating in paragraph

13 11, “Plaintiffs falsely suggest that promotions to GM and AGM are decided without any consistent

14 standards at all. . . . [A]s I testified, Costco’s standards are straightforward, readily evaluated, and

15 well understood throughout the Company.”); Matthews Decl., Docket No. 600, ¶ 3 (disputing idea

16 that there is no guidance on promotions and averring that there are “various forms of guidance and

17 instruction Costco’s Human Resources Department provides to its employees regarding promotions .

18 . . , including the Costco Employee Agreement and the code of ethics therein, the Rothman

19 Workplan, and employee newsletters, which describe the company culture, and career paths and

20 opportunities”); Zook Decl., Docket No. 653, ¶ 19 (describing uniform promotion criteria).

21

Senior management’s involvement in AGM and GM promotions makes sense given the

22 importance of these positions and their placement in the upper echelons of Costco. Far from mere

23 mid-level supervisors, AGMs and GMs oversee warehouses with an average of over 200 employees

24 and over $120 million of merchandise sales per year. See Mulligan Decl., Docket No. 647, ¶ 24;

25 Nelson Decl., Docket No. 609 (describing the characteristics of warehouses and importance of

26 warehouse management). CEO Sinegal confirms that he “consider[s] the jobs of assistant manager

27 and manager to be top management jobs” because of the responsibility involved. Sinegal Depo.,

28 Docket No. 544, Ex. V, at 124; see also id. at 42-43 (describing “how important we consider

34

United States District Court For the Northern District of California

1 growing warehouse managers” in the context of a discussion about AGM promotions, and noting

2 that “[w]e want the same strengths that we would find in a warehouse manager” in an AGM); Schutt

3 Depo., Docket No. 544, Ex. U, at 75 (“[I]t’s a big job being a warehouse manager for Costco, so it’s

4 a very well thought out, fully evaluated decision, and it’s important enough to require the ultimate

5 approval of the [CEO] of the company.”); Vachris Decl., Docket No. 627, 7 (“The AGM positions

6 also involve a tremendous amount of responsibility, as these people run the warehouse when the GM

7 is not there.”). Thus, the record reflects that the level of scrutiny by top executives is commensurate

8 with the importance Costco attaches to these positions.

9

3. Costco’s Own Evidence

10

Indeed, Costco’s own anecdotal evidence and admissions further evidence the existence of

11 common practices that apply to the class as a whole. For example, Costco’s internal diversity

12 studies, focusing on barriers to women’s advancement, treat its promotion process (and the gender

13 disparities therein) as a common, companywide problem with a companywide solution. In 2001,

14 Costco convened a series of focus groups under the BOLD9 Initiative to examine the company’s

15 recruitment and promotion process. See, e.g., Matthews Depo. at 111-13, 129, 145; Larkin Decl.,

16 Ex. 18 (BOLD Initiative memo to Steering Committee regarding recruitment and promotion

17 recommendations).10 The Recruitment and Promotion Project Team found that while the current

18 employee base overall reflected the U.S. population by race and gender, “serious breakdowns occur

19 at the management level.” Larkin Decl., Docket No. 665, Ex. 18, at 1. In response to a series of

20 team recommendations for companywide policies and initiatives, Costco implemented some

21 proposals and declined to implement others. See, e.g., Matthews Depo. at 145-46. Importantly, for

22 example, Costco rejected the team’s recommendation to implement job posting “for all positions

23 regardless of level.” Matthews Depo. at 150. Instead, the company limited posting to positions

24 below the AGM level. Id. at 151. The company’s actions through the BOLD Initiative and

25 subsequent efforts demonstrate that “Costco’s senior management had knowledge of the gender

26

9 BOLD denotes Business Opportunities Leadership Diversity. See Matthews Depo., Docket

27 No. 665, Ex. 5, at 111-13.

28

10 Notes from some of those focus groups support Plaintiffs’ allegations of bias as a barrier to advancement. See, e.g., Larkin Decl., Docket No. 665, Ex. 12.

35

United States District Court For the Northern District of California

1 disparity in the AGM and GM promotion processes and treated this disparity as a company-wide

2 issue.” Ellis I, 240 F.R.D. at 640. Indeed, Costco’s own briefing touts its companywide efforts as

3 effective in increasing diversity through various companywide policies. See Def’s Mot. to Eliminate

4 Class Claims, Docket No. 543, at 8. Costco thus implicitly concedes that its promotion practices are

5 subject to companywide control and adjustment depending upon senior management’s goals and

6 instructions.11

7

As for other anecdotal evidence of commonality, Mr. Kadue’s Declaration, Docket No. 544,

8 summarizes Defendant’s proffered declarations from putative class members and identifies several

9 common characteristics of Costco’s promotion process that, Defendant asserts, hold true across

10 regions, including the fact that: (1) Merchandising positions are critical to advancement, id. ¶¶ 3, 4;

11 (2) GMs make recommendations as to promotions, but those decisions are ultimately made or

12 reviewed by higher executives at the regional and VP level, id. ¶ 5 (stating that local managers

13 recommend promotion candidates, but that regional executives actually make the decisions); (3)

14 Employees sometimes forego promotional opportunities for personal reasons, id. ¶ 6; (4) Promotion

15 criteria are clear to Costco employees, id. ¶ 7 (describing criteria such as schedule flexibility,

16 warehouse experience, hard work, and people management); and (5) Costco fosters the promotion of

17 women across all regions, id. ¶ 8. The Court has already addressed issues 1, 2, and 4 above, and

18 concluded that they support commonality. In addition, factor 5 (to the extent it is not based solely

19 ///

20 ///

21 ///

22 ///

23

24

11 The company’s decisions that came out of the BOLD process were memorialized in the Rothman Workplan. Matthews Depo. at 113. However, by design, the bulk of Costco’s

25

implemented changes did not directly affect the AGM/GM promotion system. Ellis II, 657 F.3d at 979 n.5 (“[T]he Rothman Workplan only changed promotion practices as to the four Senior Staff

26

jobs, but not as to AGM or GM positions.”); Docket No. 548-49 (Rothman Workplan in Costco Today magazine). Thus, as a result of a conscious decision, Costco’s practices have remained

27

largely consistent with respect to AGM and GM promotion practices during the measured time period for which the parties have data. Given Costco’s decision to standardize lower-level

28

promotion practices, it seems implausible to suggest that Costco exercises no centralized control over such important, high-level positions as AGM and GM.

36

United States District Court For the Northern District of California

1 on withdrawn evidence),12 while introduced to negate a finding of discrimination, actually supports

2 commonality as it indicates that Costco acts with respect to the class as a whole.

3

As for factor 3, Costco argues that its anecdotal evidence of women “defer[ring]

4 advancement for family reasons . . . refutes . . . any defensible notion of commonality.” This

5 argument is unavailing. While Costco presents personal/family obligations and their potential

6 hindrance on career advancement as an issue unique to isolated, individual class members (and

7 therefore incapable of classwide resolution), Costco’s own proffered evidence suggests the issue of

8 family obligations and its effect on career advancement is universal, far from being an isolated

9 concern. See Kadue Decl., ¶ 6 (summarizing dozens of declarants’ testimony on the subject).

10 Costco’s internal documents substantiate this. See, e.g., Larkin Decl., Ex. 14 (Diversity in the

11 Workplace presentation identifying “Managing Work & Family” as a barrier to achieving

12 merchandising experience that “affects both genders”).13 Indeed, testimony from Costco executives

13 and employees indicates that not only is such a concern not unique to a mere isolated subset of

14 women, but it is common to people in general, regardless of gender.14

15

12 The Court notes it is questionable whether this characteristic should be included here, as

16

the bulk of declarations to which Costco points in support of this claim would appear to be covered by the parties’ previous stipulation to withdraw portions of the class member declarations Costco

17

obtained. See Docket Nos., 484, 486. Nonetheless, to the extent any of the language to which Costco points in support of this claim have not been stricken by the parties’ stipulation, such a claim

18

remains a common, classwide claim that does not undermine commonality. Rather, it is simply a classwide denial of the merits of Plaintiffs’ claims that Costco does not foster the promotion of

19 women and indeed, hinders their advancement.

20

13 As discussed below in the context of the parties’ expert evidence, some of the parties’ experts – including Defense expert Dr. Saad – offer common, classwide theories purporting to

21

explain the gender disparity in promotions as caused in whole or in part by such family obligations. These again support, rather than undermine, commonality.

22

14 Omoss Decl., Docket No. 611 (“I testified at length that the challenges facing employees,

23

including their personal family situations, are not gender-specific.”) (Regional VP); Vachris Decl., Docket No. 627, ¶ 9 (“His commitment to his family or his current living situation is greater than his

24

commitment to his career advancement.”) (emphasis added); Johnson Decl., Docket No. 588, ¶ 34 (describing male GM’s personal hardship as being similar to hers); Arredondo Decl., Docket No.

25

553, ¶ 14 (she and husband both face work-family conflict and “stagger their fulltime hours to accommodate childcare needs”); Auerbach Decl., Docket No. 555, ¶ 13 (husband stayed home with

26

kids); Cline Decl., Docket No. 563, ¶ 3 (she and husband took opposite work shifts to share childcare responsibilities); Evans Decl., Docket No. 568, ¶ 26 (both parents work fulltime, use

27

family help for childcare); Foster Decl., Docket No. 569, ¶ 13 (coordinated work hours with husband); Gonzales Decl., Docket No. 576, ¶¶ 3, 5, 7 (described give-and-take between husband’s

28

career priorities and hers, and that husband eventually stayed home); Manooa Decl., Docket No. 597, ¶¶ 7-9 (both husband and wife received promotions and transfers to new location); Moore

37

United States District Court For the Northern District of California

1

In any event, to the extent Defendant argues that women are, on average, less interested in

2 the positions that lead to promotion, less interested in promotion in general, or less able to perform

3 any of the duties necessary for promotion based on personal circumstances, such arguments are

4 premised on general assertions about the Class as a whole and how it differs, on average, from men

5 employed at Costco.15 Indeed, Plaintiffs argue that in advancing these justifications, Costco’s

6 rationale itself evidences sexist stereotypes and assumptions about women’s personal obligations

7 relative to their professional ambition. See, e.g., Plfs’ Cross-Mot., Docket No. 664, at 8 (arguing

8 that the view that “the shortfall of women in higher level warehouse management positions is not

9 attributable to any failing of Costco’s decision-making process but instead results from women’s

10 preference for jobs that allow them to accommodate their families” reflects “stereotyped perceptions

11 about the roles for women and men”) (citing Sinegal Depo., Docket No. 665, Ex. 8, at 141, 146-47

12 (describing women as “hav[ing] a tendency to be the caretakers and have the responsibility for the

13 children and for the family” and as tending to fill administrative positions at Costco “since the

14 beginning of time”). Regardless of the merits of this argument, the generality of this assertion in the

15 record demonstrates that any defensive rationale based on family or personal circumstances is a

16 common issue best resolved through classwide treatment, rather than one that undermines

17 commonality.16

18 Decl., Docket No. 607, ¶ 17 (“Although I have never deferred or declined a position because of my

19

family responsibilities, I’ve factored it in. I’ve never had to say no, though, because my husband (who is also in Costco Management) and I have always worked together to figure out a solution to

20

any issues which arise.”); Vlady Decl., Docket No. 629, ¶¶ 10, 14-15 (described husband’s accommodation of her schedule); Borgner Decl., Docket No. 636, ¶ 20 (neither she nor husband,

21

also a Costco employee, wants to relocate); Bejarano Decl., Docket No. 640, ¶ 12 (she and husband, who also works at Costco, work opposite shifts); Churillo Decl., Docket No. 642, ¶ 35 (husband also

22

works for Costco, describes challenge of coordinating their shifts); Cruz Decl., Docket No. 643, ¶ 29 (describes working with husband to coordinate responsibilities); Poser Decl., Docket No. 646, ¶ 21

23

(“[M]y husband worked for (and still works for) Costco, and the company has allowed us to work opposite schedules so that we could raise our family.”); id. ¶ 29 (husband worked evenings while

24 she worked MM shifts).

25

15 Indeed, Defendant offers supporting expert testimony and statistical analysis on this subject, including job posting and application data, discussed below in the context of the Court’s

26 evaluation of the parties’ expert reports.

27

16 The Court notes that even post-Dukes, class members need not be identical with no distinctions in their personal employment history in order to present common issues affecting the

28

class as a whole. Were that the standard, Rule 23 would cease to exist altogether. See Stinson v. City of New York, 10 CIV. 4228 RWS, 2012 WL 1450553, at *8 (S.D.N.Y. Apr. 23, 2012),

38

United States District Court For the Northern District of California

1

Furthermore, Costco’s employee declarations actually support Plaintiffs’ claim that

2 employment and promotion practices are uniform throughout the company. Many of these

3 declarations describe several transfers to various stores in each of the eight regions throughout the

4 country, yet they do not describe significant differences between stores and the way they operate.

5 See, e.g., Ellis Decl., Docket No. 654, ¶ 25 (“During my career at Costco, I worked in five buildings

6 in two states (Michigan and Colorado). From my experience, Costco policies were the same in all

7 five warehouses.”); Barnwell Decl., Docket No. 674, ¶ 21 (six locations in three states); Laureano

8 Decl., Docket No. 592, ¶ 5 (worked in three of eight regions). Accordingly, the Court concludes that

9 each of the issues described in the Kadue Declaration and accompanying employee declarations

10 identify common, classwide issues relevant to Plaintiffs’ claims of discrimination.17

11

4. Discretion

12

Defendant further argues that its challenged practices allow for a certain degree of discretion

13 among managers in making promotion decisions, and that this negates commonality. This argument

14 is not persuasive. Even under Dukes, the fact that some degree of discretion is exercised among

15 managers does not in and of itself preclude class certification. In fact, under the Teamsters pattern

16 or practice method of proof, a prima facie case of a pattern or practice of discrimination is

17 established by evidence that “racial discrimination was the company’s standard operating procedure

18 – the regular rather than the unusual practice.” Cooper, 467 U.S. at 876 (quoting Teamsters, 431

19 U.S. at 336). Thus, Plaintiffs need not prove absolute uniformity, but only a “regular” practice.

20

21

reconsideration denied, 10 CIV. 4228 RWS, 2012 WL 2952840 (S.D.N.Y. July 19, 2012) (“A court may find a common issue of law even though there exists some factual variation among class

22

members’ specific grievances.”) (quoting Dupler v. Costco Wholesale Corp., 249 F.R.D. 29, 37 (E.D.N.Y.2008)). Far from defeating commonality, Defendant’s proffered class member

23

declarations affirm and reinforce Plaintiffs’ argument that common issues of fact and law exist in this case, the answers to which will drive the litigation forward toward resolution.

24

17 Costco’s own briefing further highlights this fact, as it summarizes the common practices

25

it employs in the promotion process with no attempt to argue regional or local variation. See, e.g., Def’s Mot. to Eliminate Class Claims, Docket No. 543, at 7 (“Costco has written lists to identify

26

managers promotable to GM and AGM (as well as other positions). The managers evaluating GM and AGM candidates do so on the basis of regular interactions, spanning several years. Costco

27

exemplifies ‘management by walking around’: GMs and AGMs walk their warehouses daily, and ROMs [Regional Operations Managers] visit warehouses frequently. They acquire evaluative data

28

on promotion candidates, formally memorialized at least annually in written performance reviews.”) (emphasis in original) (internal citations omitted).

39

United States District Court For the Northern District of California

1 Accordingly, “at the liability stage of a pattern-or-practice trial the focus often will not be on

2 individual hiring decisions, but on a pattern of discriminatory decisionmaking.” Id. (citations

3 omitted) (emphasis added); see also Karp v. CIGNA Healthcare, Inc., CIV.A. 11-10361-FDS, 2012

4 WL 1358652, at *6 (D. Mass. Apr. 18, 2012) (“A plaintiff can establish a pattern or practice of

5 discrimination by relying on statistical evidence and other similarly situated employees’ accounts of

6 discrimination.”) (citing, e.g., Dukes, 131 S. Ct. at 2555-56). As demonstrated above, the focus of

7 Plaintiffs’ claims – and Defendant’s refutation of those claims – is on Defendant’s companywide

8 policies and practices. Even though there is, of course, some degree of residual discretion when

9 individual hiring decisions are made, the common practices and policies challenged herein affect

10 and guide that discretion. There is, as discussed herein, persuasive evidence of a “common mode of

11 exercising discretion that pervades the entire company.” Dukes, 131 S. Ct. at 2554-55. In addition,

12 there are specific employment practices affecting the recruitment as well as selection processes that

13 tie the claims of class members together. Id. at 2555.

14

Given the extensive involvement by senior management in the promotion process for these

15 positions described above, Plaintiffs have produced significant and persuasive proof that the

16 discretion exercised within that process occurs “under the rubric of a company-wide employment

17 practice.” Chen-Oster v. Goldman, Sachs & Co., --- F. Supp. 2d ----, 10 CIV. 6950 LBS JCF, 2012

18 WL 2912741, at *3 (S.D.N.Y. July 17, 2012) (citing, e.g., Dukes, 131 S. Ct. at 2554). Indeed, as

19 described above, CEO Sinegal and other senior executives view Costco’s promotion practices as a

20 cohesive whole, and opine that criteria for candidates are clear and readily applied by local

21 management with the input and oversight of the senior team. See Floyd v. City of New York, 82 Fed.

22 R. Serv. 3d 833, at *4 (S.D.N.Y. 2012) (fact that policy and stop-and-frisk program was discussed

23 regularly at top-level management meetings and Chief of Police’s office discussed the program with

24 lower-level staff supported commonality). Unlike in Dukes, in which “Wal–Mart permits store

25 managers to apply their own subjective criteria when selecting candidates,” Dukes, 131 S. Ct. at

26 2547, here the criteria Plaintiffs allege to be subjective and unvalidated derive from top

27 management’s own instructions, and senior management oversees the exercise of discretion in

28 implementing said criteria. Costco’s promotion system guides discretion, and thus differs from the

40

United States District Court For the Northern District of California

1 “fragmented discretion untethered to any companywide policy and procedure” the Supreme Court

2 found problematic in Dukes. Chen-Oster, 2012 WL 2912741 at *3;18 see Floyd, 82 Fed. R. Serv. 3d

3 833 at *13 (“[D]efendants confuse the exercise of judgment in implementing a centralized policy [–

4 here, a police department stop and frisk policy –] with the exercise of discretion in formulating a

5 local store policy or practice.”) (emphasis in original); Stinson v. City of New York, 10 CIV. 4228

6 RWS, 2012 WL 1450553, at *9 (S.D.N.Y. Apr. 23, 2012), reconsideration denied, 10 CIV. 4228

7 RWS, 2012 WL 2952840 (S.D.N.Y. July 19, 2012) (“Unlike in Dukes where the plaintiffs alleged a

8 corporate policy of discretion to local managers and a corporate culture hostile to the advancement

9 of women, Plaintiffs here have alleged a specific policy promulgated by Defendants, namely, that

10 Defendants have established a practice by which NYPD officers issue summonses without probable

11 cause in order to meet a summons quota.”); Morrow v. Washington, 277 F.R.D. 172, 192 (E.D. Tex.

12 2011 (finding commonality based in part on the fact that the challenged practice “was conceived and

13 implemented by a small number of Tenaha police officers and city officials working in concert

14 during a specified time period”); Cf. Bolden v. Walsh, 688 F.3d 893, 896 (7th Cir. 2012) (finding no

15 commonality between workers at different worksites where supervisors and policies differed and

16

17

18 In Chen-Oster, the court found that a companywide policy or policies incorporating discretion may nonetheless satisfy Dukes in a pattern-or-practice case. In considering a motion to

18 strike class allegations in a pattern-or-practice and disparate impact case, the court found that

19

Plaintiffs have identified a number of specific, companywide “employment practices” and “testing procedure[s].” These include the

20

“360–degree review” process, the forced-quartile ranking of employees, and the “tap on the shoulder” system for selecting

21

employees for promotion. R & R at 13. As opposed to hiring and promotion at Wal–Mart, which was committed to “local managers’

22

broad discretion,” based on managers’ “own subjective criteria,” and “exercised in a largely subjective manner,” Dukes, 131 S. Ct. at 2547,

23

the employment practices in this case, together or individually, might well – with the benefit of discovery – comprise a “common mode of

24

exercising discretion that pervades the entire company,” Id. at 255455.

25 Chen-Oster at *2. The employment practices to which Chen-Oster referred are similar to some at

26

issue in this case. For example, the “tap on the shoulder” system identified in Chen-Oster is similar to Plaintiffs’ described practice here, in which executives choose a list of promotables without

27

objective criteria and without an application process through which employees can indicate interest in promotion opportunities. As in Chen-Oster, managers employed a closed system where

28

promotion decisions are made by a select group of higher ranking managers applying criteria that allegedly disfavors women.

41

United States District Court For the Northern District of California

1 “[d]ifferent sites had materially different working conditions, as most plaintiffs conceded in their

2 depositions”).

3

5. Summary

4

Independently viewing the record as a whole, the Court rejects Defendant’s argument “that

5 promotion decisions to AGM and GM vary by region and that promotion decisions to AGM are

6 made at the store level.” Ellis I, 240 F.R.D. at 639. “Rather, the evidence before the court indicates

7 that officers at the regional and corporate levels are involved in promotion decisions.” Id.19

8 Furthermore, the fact that the scope of this suit is confined to the selection of GMs and AGMs by a

9 much smaller group of decisionmakers than in Dukes – decisionmakers who form a relatively small

10 coherent group – makes it far less “unbelievable” that these managers would exercise their

11 discretion in a common way. Dukes, 131 S. Ct. at 2555. To the contrary, Plaintiffs have offered

12 persuasive evidence of a common direction emanating from Costco’s upper management.

13

B. Costco’s Culture

14

In addition to the above-identified policies and practices, Plaintiffs contend through their

15 sociological expert, Dr. Reskin, that Costco’s culture fosters and reinforces stereotyped thinking,

16 which allows gender bias to infuse the promotion process from the top down. See Reskin Decl.,

17 Docket No. 670, ¶ 9 (summarizing findings). Dr. Reskin conducted a social framework analysis,

18 examining Costco’s personnel and promotion policies and practices in the context of social science

19 literature and her expertise in workplace discrimination and “organizational policies and practices

20 that can mitigate conscious and unconscious stereotyping, automatic and conscious ingroup

21 favoritism, and sex bias.” Reskin Decl., Docket No. 670, ¶ 5. Such bias includes, as noted above,

22 Plaintiffs’ and Dr. Reskin’s charge that the CEO and other top executives employ stereotyped

23 thinking regarding women’s roles in society. See Reskin Decl., Docket No. 670, ¶¶ 53-60 (citing

24 testimony from CEO Sinegal and others that women’s caretaking role causes them to be less

25 interested in promotion opportunities, as well as other stereotyped assumptions about, e.g., women’s

26

19 Although the Court identifies specific components of this process, Plaintiffs need not

27

separate each component part from the overall promotion process on the merits if they “can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable

28

of separation for analysis,” in which case “the decisionmaking process may be analyzed as one employment practice” for purposes of causation. See 42 U.S.C.A. § 2000e-2(k)(1)(B)(i).

42

United States District Court For the Northern District of California

1 ability to be forklift drivers). She concluded that “[c]entralized control, reinforced by a strong

2 organizational culture, creates and sustains uniformity in the personnel policies and practices

3 throughout Costco’s operational units. This common culture is characterized by unwritten rules and

4 informal, undocumented personnel practices featuring discretion by decision makers.” Reskin Decl.,

5 Docket No. 670, ¶ 9. Dr. Reskin opined that these informal, yet cohesive, practices are “likely to be

6 tarnished by biases that operate against women.” Id. Dr. Reskin contrasted Costco’s practices with

7 the more formal practices that, social science research indicates, “sustain or reduce barriers to

8 women’s career success.” Id. ¶ 10. Costco has rejected such policies. Id.

9

The Court finds Dr. Reskin’s testimony persuasive. It is consistent with and provides further

10 support for Plaintiffs’ claim that Costco operates under a common, companywide promotion system.

11 See Price Waterhouse v. Hopkins, 490 U.S. 228, 235-36 (1989) (accepting expert testimony on

12 gender stereotyping and its “likely influence[]” on partnership selection process).

13

This evidence of corporate culture also underscores the fact that adjudication of Plaintiffs’

14 claims will require answering common questions with respect to the class as a whole. In this regard,

15 Defendant does not disagree – or at least, presents no evidence – that Costco has no strong corporate

16 culture that guides managers’ promotion decisions companywide. See Landy Decl., Docket No.

17 655, at 51 (“It is neither remarkable, nor the subject of expert opinion that Costco has a culture. Fact

18 witnesses for Costco have repeatedly acknowledged and described the Costco culture.”). To the

19 contrary, CEO Sinegal and other Costco employees and documents place strong weight on Costco’s

20 culture as an important influencer for its promotion practices. See, e.g., Matthews Decl., Docket No.

21 600, ¶ 3 (disputing the notion that promotion requirements have been passed down only through oral

22 culture because such an argument “falsely impl[ies] that Costco has no written documentation

23 regarding promotions”; contending instead that numerous written documents provide guidance by

24 “describ[ing] the company culture, and career paths and opportunities”); Sinegal Depo., Docket No.

25 665, Ex. 8, at 30 (describing the Costco culture as important for potential GMs to understand,

26 including the open door policy and merchandising concepts); id. at 123-24 (rejecting job posting for

27 AGM and GM because Costco has a strong “system in our company, we had a culture built into our

28 company that was recognizing on a regional basis who was qualified” for those jobs); see also, e.g.,

43

United States District Court For the Northern District of California

1 April 2005 Costco diversity report, Docket No. 665-13 (Costco’s internal report on diversity, which

2 leads with a description of its culture – including its open door policy and commitment to, inter alia,

3 trust, personal initiative, and mutual respect – and is infused with references to the Costco way of

4 doing business). Defendant and its experts merely disagree with Dr. Reskin as to the characteristics

5 of that culture. See Sinegal Depo., Docket No. 544, Ex. V, at 155 (disputing the idea that managers

6 might be discriminating in certain employment decisions because “[i]t’s so clearly ingrained in the

7 culture of our company, I can’t imagine how they would miss that message”). In other words,

8 Defendant disagrees as to “whether Costco does in fact have a culture of gender stereotyping and

9 paternalism,” an issue the Ninth Circuit explicitly held the Court need not resolve at the class

10 certification stage. Ellis II, 657 F.3d at 983. While the Court finds Dr. Reskin’s testimony

11 persuasive for purposes of Rule 23(a) analysis, regardless of which party is correct on the merits, the

12 content of the companywide culture is a common question amenable to resolution on a classwide

13 basis.

14

Similarly, Defense psychological expert Dr. Landy’s attack on Dr. Reskin’s testimony is

15 unpersuasive. While Dr. Landy purports to highlight regional differences in HR and promotion

16 practices, the variations he highlights are largely unconnected to the AGM and GM promotion

17 process. See Landy Decl., Docket No. 655, at 44-47. Nor does Dr. Landy’s testimony negate

18 commonality. To the extent his collected quotes reveal certain collateral differences between

19 regions (e.g., whether a region implements a Manager-in-Training program), such differences do not

20 negate the overarching uniformity of the process, as well as senior management’s involvement in

21 that process, as discussed at length above. In addition, while Dr. Landy criticizes Dr. Reskin’s

22 description of Costco’s culture, his argument challenges her conclusions on the merits about the

23 characteristics and effects of that culture. See Landy Decl., Docket No. 655, at 53 (“What is missing

24 from Dr. Reskin’s observations about the Costco culture is any evidence that the culture is somehow

25 pathological and devoted to discriminating against women. On the contrary, various depositions of

26 Costco representatives and the exhibits to those depositions confirm an organization determined to

27 directly address any possible barriers to the advancement of women and minorities.”); see also id. at

28 53-58 (describing further the influential aspects of Costco’s culture and concluding that their effects

44

United States District Court For the Northern District of California

1 are positive, not negative). Again, as to commonality, both sides do not dispute that there are

2 policies and practices common to the class as a whole. See Landy Decl., Docket No. 655, at 69-89.

3 Thus, the experts’ dispute as to the merits and impact of Defendant’s promotion policies merely

4 confirm that such a dispute is one that has an impact on the class as a whole, and its resolution on a

5 classwide basis is apt to drive the litigation.

6

The Court finds Plaintiffs’ evidence of culture is persuasive in light of the CEO’s admitted

7 direct involvement in company promotion practices, the relatively high level of seniority for the

8 positions at issue in this case, and the small number of top executives involved in GM and AGM

9 recruitment and selection. However, the Court does not place undue or dispositive weight on this

10 factor. Unlike in Dukes, the evidence of Costco’s culture is just one component among many pieces

11 of persuasive evidence of companywide practices and policies that support a finding of

12 commonality. Cf. Dukes, 131 S. Ct. at 2553 (rejecting social framework analysis where it was “[t]he

13 only evidence of a general policy of discrimination”) (quotation marks omitted).

14

C. Classwide Effects – Statistical Evidence

15

1. National vs. Regional

16

Finally, Plaintiffs provide persuasive statistical evidence of gender disparities throughout

17 Costco sufficient to refute the notion that “[d]issimilarities within the proposed class . . . [might]

18 impede the generation of common answers.” Dukes, 131 S. Ct. at 2551 (quotation omitted). As

19 noted by both Judge Patel and the Ninth Circuit, a key dispute between the parties is whether there is

20 a nationwide gender disparity in promotions to AGM and GM positions within Costco, or whether

21 any purported disparity is merely confined to certain regions and therefore not common to the class

22 as a whole. Plaintiffs’ expert, Dr. Drogin, “concluded that there were statistically significant

23 internal gender-based disparities in both the AGM and GM positions based on his analysis of

24 aggregate, nationwide data.” Ellis I, 240 F.R.D. at 639 (citing Drogin Decl. ¶ 25). In contrast,

25 Defendant’s expert, Dr. Saad, found no gender disparity in AGM and GM promotions when he

26 conducted a study by region, rather than in the aggregate, and controlled for certain variables for

27 which Dr. Drogin did not control.

28

45

United States District Court For the Northern District of California

1

On balance, the Court finds that Plaintiffs’ expert testimony is more persuasive at least

2 insofar as it pertains to commonality. With respect to AGM promotions, Dr. Drogin demonstrates

3 that, although women form nearly 27.7% of the available pool of SSMs from which AGMs are

4 drawn, they received only 18.4% of AGM promotions during the pre-filing period. Drogin Decl.,

5 Docket ¶ 19, Table 7a. The gender disparity in promotions was statistically significant for each

6 year from 1999 to 2004 (before the lawsuit was filed), and highly significant for the period as a

7 whole. Id. Indeed, in raw numbers, the comparison is stark: women received only 103 of the 561

8 promotions to AGM between 1999 and August 2004. Id. Dr. Drogin also concluded that the results

9 were statistically significant even when he controlled for the employee’s number of years experience

10 at the SSM level, as well as the region in which the promoted person worked. Id. ¶ 20 & Table 7b, ¶

11 21 & Table 7c.

12

Dr. Saad, Defendant’s expert, challenges Dr. Drogin’s disparity findings, arguing that one

13 must separate out the promotion numbers by region and evaluate each region separately. Using this

14 formula, Dr. Saad concludes that there is no statistically significant disparity within most of the

15 regions. See Saad Supp. Decl., Docket No. 620, Exs. R2-R8 (showing statistically significant

16 disparity in only Los Angeles and the Northeast).20 However, looking at the tables Dr. Saad

17 provides for each region, the number of promotions per year is so small per region that it would be

18 difficult to attach much importance to the lack of statistical significance. For example, for most

19 regions in most years, the total number of promotions to AGM is under 20, and frequently under 10.

20 Compounding the problem, women are already underrepresented in the pool of AGM candidates,

21 averaging under one-third of the employees in the SSM pool from which AGMs are promoted.

22 Thus, to demonstrate statistical significance as to promotions from SSM to AGM within such a

23 small pool for each region would require a severe disparity in raw numbers.21

24

25

20 Dr. Drogin contends there is a statistically significant disparity in the Southeast as well,

26

but Dr. Saad’s table indicates that region is just shy of statistical significance. See Saad Supp. Decl., Docket No. 620, Ex. R8.

27

21 For example, the LA region yields a statistically significant gender disparity because

28

women received only 7 promotions to AGM out of 53 between 1999 and July 31, 2004. See Saad Supp. Decl., Docket No. 620, Ex. R3.

46

United States District Court For the Northern District of California

1

Therefore, Dr. Drogin persuasively explains that given the small number of total promotions

2 to AGM companywide, only 659 in total and 561 before the lawsuit was filed,22 separating the data

3 by region “would tend to obscure the overall pattern of promotion rates.” Drogin Decl., Docket No.

4 641, at 14 n. 21; see also Drogin Supp. Decl., Docket No. 667, ¶ 16.23 Dr. Reskin similarly opines

5 that the lack of apparent statistically significant disparity in certain regions can be the result of a

6 small number of cases, which increase the chance that random error has an effect on the data.

7 Reskin Depo., Docket No. 680, Ex. 1, at 213. Courts have recognized that aggregate data can be

8 more probative in these circumstances. See Paige v. California, 291 F.3d 1141, 1148 (9th Cir.

9 2002) (aggregation “is particularly appropriate where small sample size may distort the statistical

10 analysis and may render any findings not statistically probative.”); Compare, e.g., Coates v. Johnson

11 & Johnson, 756 F.2d 524, 541-42 (7th Cir. 1985) (explaining that pooling data is sometimes

12 warranted where small sample sizes can tend to obscure disparities, citing case in which pooling was

13 appropriate given sample sizes from 2 to 39 per category, and describing sample sizes of 490, 509,

14 and 815 as sufficiently large for analysis), with Saad Supp. Decl., Docket No. 620, Exs. R2-R8

15 (listing regional data in which total promotions from 1999-2004 range from 8 to 150).24 Defendant

16

17

18

19

22 Dr. Saad’s data indicate only 553 promotions during the pre-lawsuit period from 1999 to July 31, 2004, which does not change the above point. See Saad Supp. Decl., Docket No. 620, Ex.

20 5.

21

23 Contrary to Defendant’s suggestion, Dr. Drogin did not “admit” in deposition that the regional sample sizes were large enough for meaningful analysis that would be equally probative to

22

the aggregate data. Instead, he merely discussed the fact that three regions yielded statistically significant gender disparities based on his calculations, while the remaining four yielded raw

23

disparities that did not reach statistical significance. See Drogin Depo., Docket No. 544-1, Ex. B, at 27-30 (stating that regional samples are “not a very large number,” and stating that certain regions

24

produce statistically significant results while others do not). This is consistent with his overall conclusion, which the Court finds persuasive, that the small numbers per region make it difficult to

25

draw meaningful conclusions from that data as compared to the nationwide pool. As discussed infra, Dr. Saad similarly acknowledges this difficulty with small sample sizes in a different context. Dr.

26

Drogin also bases his nationwide statistics on the companywide locus of decisionmaking, which the Court addresses below.

27

24 While neither Coates nor this Court purports to specify a floor under which sample sizes

28

are per se too small (or a ceiling over which samples are per se large enough), the Court lists the sample sizes described in Coates as an example of what courts have considered sufficient.

47

United States District Court For the Northern District of California

1 offers no persuasive response as to the issue of sample size.25 Thus, the lack of statistically

2 significant disparities at the regional level says little about the classwide nature of Defendant’s

3 practices given the small sample sizes.

4

The Court finds there is good reason to rely on nationwide statistics. Not only do the larger

5 aggregate numbers allow for a robust analysis and yield more reliable and more meaningful

6 statistical results, Costco’s own promotion practices support a nationwide statistical analysis. As

7 discussed above, CEO Sinegal avers that promotion policies and practices are uniform across the

8 company. Costco executives are informed of and involved in the recruitment and selection process

9 from the top levels of the company. Thus, unlike in Dukes, here Plaintiffs’ statistical analysis

10 conforms to the level of decision for the challenged practices, including the adoption of the many

11 companywide policies described above. Cf. Dukes, 131 S. Ct. at 2555. In addition, the fact that

12 candidates are often promoted from across regions lends further support to treating the gender

13 disparity as a national, rather than regional, issue, and adjusting the level of focus for statistical

14 analysis accordingly. See, e.g., Mulligan Decl., Docket No. 647, ¶ 32 (asked to assume for defense

15 expert report that willingness to relocate is a factor in promotions); Kadue Decl., ¶ 7 (describing

16 willingness to move as a factor in promotions based on class member declarations); Vachris Decl.,

17 Docket No. 627, ¶¶ 6, 9.

18

Even if the data were examined strictly on a region by region basis, the fact that all seven

19 non-Texas regions show a raw gender disparity in promotions is telling. Drogin Depo., Docket No.

20 544, Ex. B, at 27; Saad Supp. Decl., Docket No. 620, Exs. R2-R8. Examining the data by region,26

21 the data supports Plaintiffs’ contention that gender disparities extend across all regions, and the

22

25 Indeed, Defendant appears to largely offer a tautology – that disaggregated data is more

23

probative simply because it yields results favorable to Costco. The Court is not persuaded. Similarly, the mere fact that certain regions yielded statistically significant results does not

24

demonstrate that the sample size for each region is sufficient to meaningfully compare them and draw conclusions as to their purported differences. Indeed, elsewhere in his report, Dr. Saad

25

acknowledged that small sample sizes might call into question the meaning of certain disparities, even when they technically yield statistically significant results. See Saad Decl., Docket No. 619, ¶

26

72 & n.12, Ex. 25 (listing applications to Meat Manager position as yielding a statistically significant gender disparity, but stating that “given the relatively small sample of total applicants . . .

27

, the statistics may not be reliable indicators of differential job preferences or economic constraints”); see also id. ¶ 76 & n.13, Ex. 28 (same).

28

26 Both experts agree Texas is too small in terms of promotions to produce reliable data.

48

United States District Court For the Northern District of California

1 absence of statistical significance within each individual region is of limited value for the reasons

2 discussed above. See Watson, 487 U.S. at 997 n.3 (“We have emphasized the useful role that

3 statistical methods can have in Title VII cases, but we have not suggested that any particular number

4 of ‘standard deviations’ can determine whether a plaintiff has made out a prima facie case in the

5 complex area of employment discrimination. . . . Instead, courts appear generally to have judged the

6 ‘significance’ or ‘substantiality’ of numerical disparities on a case-by-case basis.”); Chin v. Port

7 Auth. of New York & New Jersey, 685 F.3d 135, 153 (2d Cir. 2012) (upholding jury’s reliance on

8 non-statistically significant disparity based on small sample size and non-statistical evidence of

9 discrimination and noting that “[c]ourts should take a case-by-case approach in judging the

10 significance or substantiality of disparities, one that considers not only statistics but also all the

11 surrounding facts and circumstances”) (internal citations and quotation marks omitted).

12

Thus, in answer to the Ninth Circuit’s directive to determine whether disparities exist across

13 all regions such that Plaintiffs may be able to “show that ‘discrimination manifested itself in . . .

14 promotion practices in the same general fashion’ . . . throughout Costco,” the Court finds that

15 Plaintiffs have demonstrated such a companywide disparity for purposes of establishing

16 commonality under Rule 23. Id. (quoting Dukes, 131 S. Ct. at 2553). See Ellis II, 657 F.3d at 983

17 (“If, as Plaintiffs allege, promotion decisions are based on the biased attitudes of the CEO and upper

18 management, one would expect disparities in all, or at least most, regions.”).

19

In sum, the Court finds there is good and persuasive evidence of disparities in all regions and

20 that the lack of a statistically significant disparity in each region does not disprove the companywide

21 nature of the disparity, given the small sample sizes. Further, Dr. Drogin’s decision to aggregate the

22 data nationwide is reasonable because the larger sample size allows for more robust statistical

23 analysis and matches the relevant level of decisionmaking within Costco. Thus, the Court finds

24 there is persuasive evidence that gender disparities are present classwide, not just in isolated regions.

25

2. Competing Explanations for Statistical Disparity

26

Beyond the debate over regional differences, Defendant’s general attacks on Plaintiffs’

27 statistical evidence are largely unpersuasive at least insofar as they bear generally on commonality.

28 The theme of Costco’s arguments addressed in this section is that Costco offers competing control

49

United States District Court For the Northern District of California

1 variables to explain the observed gender disparity in promotions, variables Costco contends refute

2 any claim of discrimination. However, such classwide variables are precisely the sorts of arguments

3 subject to classwide resolution. As discussed below, these disputes amount to competing classwide

4 explanations for the observed raw disparity and therefore support, rather than undermine, a finding

5 of commonality.

6

For example, for GM promotions, both experts agree there is no statistically significant

7 disparity in the rate of promotion from AGM to GM. Dr. Drogin provides a persuasive explanation

8 for why that is so. He explains that the pool of women is already artificially low due to the low rates

9 of women promoted into the AGM position. Drogin Decl., Docket No. 641, ¶ 23. In other words,

10 the representation of women as AGMs is itself a tainted variable, and because virtually all GMs

11 come from the AGM pool, the lack of statistical significance does not detract from the overall

12 gender disparity in both positions. See Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459,

13 470 (8th Cir. 2004) (“Regression analyses in discrimination cases attempt to control for the

14 legitimate reasons for pay disparities through the use of explanatory variables. But, illegitimate

15 reasons-reasons themselves representative of the unlawful discrimination at issue-should be

16 excluded from the regression (or otherwise dealt with) to avoid underestimating the significance of a

17 disparity.”) (emphasis added). Defendant’s response on this point is unpersuasive and irrelevant to

18 commonality. It does not argue that there are any intra-class differences in the rate of AGM or GM

19 promotions; rather, it makes a classwide argument that there is in fact no disparity in the promotion

20 rate to GM. The Court need not resolve this factual question at the certification stage; rather, it

21 presents a common question suitable for classwide resolution. See Ellis II, 657 F.3d at 983 n.8

22 (court may not “determine whether class members could actually prevail on the merits of their

23 claims”); see also id. (rejecting Costco’s argument that “[t]here is no commonality absent (a)

24 statistical proof of under-promotion of women and (b) a plausible link between the practice and the

25 impact,” because it would essentially “turn class certification into a mini-trial”) (emphasis omitted).

26

Similarly, Defendant offers competing explanations for the gender disparity in promotions to

27 the AGM position from the Senior Staff (SSM) positions, and for the disparity in placement in

28 merchandising positions within the Senior Staff level which feed the AGM promotion. Yet, each of

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United States District Court For the Northern District of California

1 Defendant’s competing variables are classwide variables, subject to common resolution. For

2 example, Dr. Saad advocates for, and implements in his report, a control variable for the four

3 specific types of SSMs from which AGMs receive promotions, rather than merely using the SSM

4 category as a whole as the pool from which AGMs are drawn. See, e.g., Saad Decl., Docket No.

5 619, ¶¶ 21, 31-50. Dr. Saad argues that given the importance of the Merchandise Manager (“MM”)

6 position among the four SSM positions, controlling for experience in this position yields more

7 reliable results as to whether there is any discrimination in promotion. His data indicate that once he

8 controls for MM experience, there is no remaining gender disparity in AGM promotions. See id. Ex.

9 8.

10

Like the AGM-to-GM promotion discussed above, however, Plaintiffs dispute this method as

11 merely concealing the disparity through a tainted variable, as the rate of promotion into the MM

12 position is much lower for women than any other SSM position. Plaintiffs also introduce qualitative

13 evidence that women have been blocked from the MM position due to gender bias, to support their

14 theory that MM experience is a tainted variable. See, e.g., Larkin Decl., Docket No. 665, Ex. 23;

15 Ellis I, 240 F.R.D. at 648 (“Plaintiffs have presented substantial evidence, beyond mere allegations,

16 that raises the inference that MM is tainted by Costco’s preference for hiring men for that

17 position.”). Moreover, Costco’s senior management is aware of the gender disparity in

18 merchandising experience and the fact that reliance on such experience prevents women from

19 ascending the management ranks. See, e.g., Sinegal Depo., Docket No. 665, Ex. 8, at 146-47

20 (opining that women tend not to be in merchandising positions); Larkin Decl., Docket No. 665, Ex.

21 23 (2005 Rothman Workplan Session Comments describing stereotypes that women cannot do

22 merchandising positions), at CRE 0142527, CRE 0142538; id., Ex. 21, at CRE 0142691 (2006

23 Diversity Meeting notes describing dearth of women rotating into merchandising positions). See

24 generally Stender v. Lucky Stores, Inc., 803 F. Supp. 259, 333 (N.D. Cal. 1992) (findings of fact and

25 conclusions of law, finding “that the lack of statistically significant disparities in promotions of

26 women to Third Person, Assistant Store Manager and Store Manager is caused by women being

27 blocked from upper management positions at the lower rungs of the promotional ladder”); Segar v.

28 Smith, 738 F.2d 1249, 1283 (D.C. Cir. 1984) (finding plaintiffs had presented sufficient evidence to

51

United States District Court For the Northern District of California

1 demonstrate liability for discriminatory promotions where there was a statistically significant

2 disparity in promotions from GS-11 to GS-12 and, although disparity for promotions above GS-12

3 was not statistically significant, there was other evidence to raise an inference of discrimination). In

4 any event, this dispute is a quintessential example of a common question: whether MM experience

5 is properly included as a control in a statistical analysis of gender disparities in promotions to AGM.

6 Costco thus offers a generalized defense applicable to classwide allegations. This dispute does not

7 require individualized treatment, but instead is subject to a classwide resolution.

8

As another example, Dr. Saad recommends additional changes to the data as a whole, such as

9 removing employees who were on leaves of absence at the time of promotion. See Saad Decl.,

10 Docket No. 619, ¶¶ 41 n.8, 43, 50, Ex. 9; Saad Supp. Decl., Docket No. 620, ¶¶ 40-43, Exs. 6, R1-9.

11 Dr. Saad contends that doing so yields promotion disparities that are not statistically significant for

12 the class as a whole in all years, although the results are still statistically significant for the measured

13 time period as a whole. Saad Decl., Docket No. 619, Ex. 6. While the proper composition of the

14 data pool is certain to be a contested topic on the merits, Dr. Saad’s contention is not one that affects

15 commonality as he makes no argument, nor does his data demonstrate, any divergent effects

16 between regions. Instead, Dr. Saad’s argument presents another common question capable of

17 classwide analysis. See also Saad Decl., Docket No. 619, ¶¶ 78-85 (presenting statistical analysis of

18 women’s leaves of absence as compared to men’s across the company).27

19

Defendant next argues Dr. Saad’s study of job posting data across the company (for positions

20 below the AGM level) demonstrates that women are less interested in the merchandising positions

21 (such as MM) that make one promotable to AGM and GM. Costco Reply at 20-21; see Saad Decl.,

22

23

27 The Court also notes that excluding any employee who had taken a leave of absence at any point during the year prior to the promotion year from the pool of eligible promotees, as Dr.

24

Saad has done, would appear to unnecessarily remove people eligible for promotion during much, if not all, of the year the promotion actually occurred. See Saad Decl. ¶¶ 43, 50 (explaining that the

25

leave of absence control removes people who took a leave of absence in the year prior to the promotion year). In addition, as Dr. Saad’s own data suggests people who take leaves of absence do

26

so for much less than a full year. Id. ¶ 30 (describing average duration of leave by female SSMs as 136.2 days). Thus, it is unclear why, for example, a woman who took a leave of absence from

27

January-March of 2002 should be excluded from the pool of eligible candidates for a promotion occurring in September 2003. In any event, while the parties are free to debate the merits of this

28

control variable on summary judgment or at trial, inclusion or exclusion of this control variable is a classwide issue subject to classwide resolution, as Defendant’s own data demonstrate.

52

United States District Court For the Northern District of California

1 Docket No. 619, ¶¶ 63-77. Therefore, Defendant argues, inclusion of the MM control variable is

2 warranted, and once included, the purported gender disparity in promotions to AGM disappears.

3 However, the merits of Dr. Saad’s job posting analysis and its implications for the persuasiveness of

4 Plaintiffs’ evidence of gender disparities is a merits question that does not defeat commonality.

5 Again, Defendant has identified a quintessential common question of fact: Did Costco’s practices

6 cause the gender disparity in promotions, or did women’s differential preferences as a group

7 determine that disparity? Costco proposes a classwide, common method of proving its proposed

8 answer to that question, as it claims job posting data reveals that “differential gender preferences

9 affected the number of females interested in merchandising management jobs.” Costco Reply at 21.

10 In other words, it claims that women, on average, are less interested in the prerequisites for

11 promotion, and if this fact were controlled for, there would be no gender disparity. This is precisely

12 the kind of “common answer[] apt to drive the resolution of the litigation.” Dukes, 131 S. Ct. at

13 2551 (internal quotation omitted) (emphasis in original).28

14

Beyond the dispute between Drs. Drogin and Saad as to AGM and GM promotion data, the

15 parties also dispute the merits of Dr. Bendick’s benchmarking analysis on behalf of Plaintiffs. Dr.

16 Bendick compared the representation of women in Costco management with women’s

17 representation in other purportedly comparable retail establishments. Bendick Decl., Docket No.

18 668; Bendick Supp. Decl., Docket No. 669. The utility of benchmarking is that, as Dr. Dr. Bendick

19 explains, it can help to isolate an employer’s unique policies and practices from general societal

20 factors affecting women’s representation in certain positions. Because such factors would be

21 expected to affect all employees and employers not unique to Costco (e.g., personal or family

22 constraints, or differential interest in certain positions cause by factors outside Costco’s control),

23 benchmarking allows one to isolate internal from external effects. Dr. Bendick opines that using

24 several benchmarks based on different assumptions about the relevant comparable labor pool, each

25 benchmark yields a disparity between women’s representation at Costco and their representation in

26

27

28 Indeed, it is telling that the only cases Defendant cites in support of this argument, see

28

Costco Reply at 20 n. 111, 112, concern the sufficiency of plaintiffs’ substantive allegations and evidence at the motion to dismiss, summary judgment, or trial stage, not class certification.

53

United States District Court For the Northern District of California

1 other retail establishments. See generally Bendick Decl., Docket No. 669, ¶¶ 29-34.29 Dr. Bendick

2 concludes that Costco’s personnel and promotion policies and practices are responsible for the

3 disparity. Id. ¶ 35. The Court finds such benchmarking analysis persuasive insofar as it illuminates

4 the common question of whether Costco’s companywide policies are responsible for the gender

5 disparity in promotions to AGM and GM.

6

Dr. Saad provided rebuttal testimony arguing, inter alia, that Dr. Bendick’s analysis was

7 flawed because it does not control for earnings, and does not use the appropriate comparison

8 retailers. Saad Decl., Docket No. 619, ¶¶ 99-100; see also Saad Supp. Decl., Docket No. 620, ¶¶ 13-

9 25. Dr. Bendick’s comparison pool therefore, according to Dr. Saad, compares the relevant Costco

10 positions to the wrong positions in the labor market. He also contends Dr. Bendick uses the wrong

11 Census code to compare Costco SSMs, and the wrong subset of comparison retailers. Saad Supp.

12 Decl., Docket No. 620, ¶¶ 26-32. Using Dr. Saad’s choice of a comparison data pool, Dr. Saad

13 generates benchmarks that are favorable to Costco and show that women’s representation in the

14 relevant positions at Costco is actually higher than in comparable retailers. Saad Decl., Docket No.

15 619, ¶ 105, Exs. 43-44.30 Another defense expert, Dr. Mulligan, faults Dr. Bendick’s benchmarking

16 analysis because, she contends, it fails to properly account for the different characteristics of female

17 workers that affect their labor supply (for example, their greater family responsibilities). See, e.g.,

18 Mulligan Decl., Docket No. 647, ¶¶ 16-21, 34-35, 45, 51-56, 61-62, 96, 103, 106.

19

The Court finds all experts’ arguments illuminate a common question of fact relevant to

20 Plaintiffs’ claims of discrimination. Contrary to Defendant’s suggestion, the Court’s task at this

21 juncture is not to determine which expert’s benchmarks (Dr. Saad’s or Dr. Bendick’s) are correct on

22 the merits. To do so would run afoul of the Ninth Circuit’s clear instruction that the Court examine

23 the merits only insofar as it is “necessary to determine whether there was a common pattern and

24

25

26

29 Each individual benchmark is inherently imperfect, as no data pool provides a perfect comparison. This is the reason, as Dr. Bendick explains, for diversifying among several different

27

benchmarks and synthesizing their results, so as to account for their relative strengths and weaknesses. Bendick Supp. Decl., Docket No. 669, ¶¶ 33-38.

28

30 Dr. Bendick, of course, disputes Dr. Saad’s competing methodology.

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United States District Court For the Northern District of California

1 practice that could affect the class as a whole.” Ellis II, 657 F.3d at 983 (emphasis in original).

2 Instead, the issue is whether there are common questions and answers that will drive the litigation.31

3

In short, Defendant offers numerous competing explanations for the observed gender

4 disparity in promotions. None of these explanations undermine the companywide nature of the

5 challenged policies and their disparate effects discussed above. Moreover, Defendant’s remaining

6 challenges present common proposed answers to Plaintiffs’ common questions; these disputes are

7 subject to generalized proof and “capable of classwide resolution.” Dukes, 131 S. Ct. at 2545.

8 These questions are therefore not “factual disputes necessary to determine whether there was a

9 common pattern and practice that could affect the class as a whole.” Ellis II, 657 F.3d at 983

10 (emphasis omitted). To the contrary, they provide further support for the Court’s conclusion that

11 Plaintiffs have demonstrated “the capacity of a classwide proceeding to generate common answers

12 apt to drive the resolution of the litigation.” Id. at 981 (quoting Dukes, 131 S. Ct. at 2551)

13 (emphasis omitted).

14 ///

15 ///

16

17

31 In this instance, all experts’ opinions regarding Dr. Bendick’s benchmarking analysis support commonality. For example, Dr. Saad does not fault Dr. Bendick for failing to account for

18

internal differences among Costco’s regions or stores; nor does he opine that benchmark analysis is inappropriate on the whole because Costco’s internal differences preclude any useful classwide

19

comparison. Instead, Dr. Saad simply disagrees as to the proper classwide benchmark to use in the analysis. Nor does Dr. Mulligan contend that intra-class differences among women at Costco

20

prevent an examination of the gender disparity in promotions; rather, Dr. Mulligan argues Dr. Bendick failed to attempt a “residual method” of analysis that would account for differences in

21

women’s labor supply that can affect their overall representation in the positions at issue. See Mulligan Decl., Docket No. 647, ¶¶ 96, 103, 106. Dr. Mulligan presents a competing theory to

22

answer “[t]he relevant economic question for purposes of analyzing Plaintiffs’ claims in this case”: “whether the observed statistical composition of Costco’s managerial workforce results from

23

employer discrimination against women.” Id. ¶ 45. Dr. Mulligan’s opinions are, according to her, derived from comparisons between women at Costco and women in the labor force in general, and

24

are capable of classwide analysis. See, e.g., Mulligan Decl., Docket No. 647, ¶ 55 (defending her opinions based on broad national economic studies as to women’s different characteristics because

25

“it is reasonable to assume that Costco’s workforce has family situations that are typical of those in America in general, and the economy-wide studies are applicable to Costco’s labor force”); id. ¶ 55

26

n.18 (noting that she has seen no data suggesting that regional weighting of the economic statistics “would affect [her] opinion”); id. ¶¶ 109-113 (describing characteristics unique to Costco that make

27

it less likely discrimination is responsible for the gender disparity, without differentiating within Costco). Thus, all three experts’ arguments on this point demonstrate that there are common

28

questions and highlight “the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Dukes, 131 S. Ct. at 2551.

55

United States District Court For the Northern District of California

1

3. Challenges to Methodology

2

The parties also dispute whether Plaintiffs should be permitted to use pre-statute of

3 limitations data to demonstrate the disparity in promotions. Again, this is a dispute common to the

4 class as a whole and unlike the statistical challenge based on purported regional differences, goes

5 directly to the merits of Plaintiffs’ classwide claims based on a defense that would apply to the class

6 as a whole. Disputes over “whose statistical findings and observations are more credible . . . [are]

7 relevant only to the merits of plaintiffs’ claim – whether plaintiffs actually suffered disparate

8 treatment – and not to whether plaintiffs have asserted common questions of fact or law.” Ellis II,

9 657 F.3d at 983 n.8 (internal citations and quotation marks omitted). Indeed, nothing about

10 Defendant’s statute of limitations argument concerns “[d]issimilarities within the proposed class.”

11 Dukes, 131 S. Ct. at 2551. Instead, this argument concerns only the merits of Plaintiffs’ claims and

12 what evidence they may use to meet their burden of proof.

13

In any event, as Dr. Saad concedes, there is still a statistically significant disparity during the

14 limitations period if one uses Dr. Drogin’s data pool. See Saad Supp. Decl., Docket No. 620, ¶ 84,

15 Exs. R38, R39. It is only once Dr. Saad implements other classwide manipulations to the data pool

16 (e.g., removing employees on leaves of absence, and other changes discussed above) that the results

17 lose statistical significance. As the Court concluded above, these classwide disputes over how to

18 manipulate the data pool to generate various classwide results present common questions subject to

19 a common resolution, and the Court need not (and should not) resolve those disputes on the merits at

20 this juncture.

21

Moreover, with respect to the merits of the disputed methodology, as Judge Patel previously

22 found (and the Ninth Circuit did not challenge), there is “no legal bar to the use of pre-liability

23 period evidence in this case, and . . . Dr. Drogin’s analysis [is] relevant to plaintiffs’ claims.” Ellis I,

24 240 F.R.D. at 647.32 As the Second Circuit has recently explained, pre-statute of limitations data is

25 generally both relevant and frequently used in such matters as evidence of the alleged discriminatory

26 practice, even when a plaintiff may not directly recover as to events occurring outside the applicable

27

28

32 Indeed, more than simply “relevant,” the Court finds his analysis persuasive for purposes of establishing commonality.

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United States District Court For the Northern District of California

1 time period. See, e.g., Chin, 685 F.3d at 150 (“It is well established . . . that so long as at least “one

2 alleged adverse employment action ... occurred within the applicable filing period[,] ... evidence of

3 an earlier alleged [discriminatory] act may constitute relevant ‘background evidence in support of

4 [that] timely claim.’”) (quoting, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113

5 (2002) (“Nor does the statute bar an employee from using the prior acts as background evidence in

6 support of a timely claim.”)); see Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185,

7 1192 (9th Cir. 2003), opinion amended on denial of reh’g, 00-35999, 2003 WL 21027351 (9th Cir.

8 May 8, 2003) (“[W]hile these claims are not independently actionable, evidence about the District’s

9 refusal to hire Raad for a full-time teaching position in 1991 and 1992 is relevant and admissible

10 insofar as it bears on her claim that she was discriminatorily refused a full-time position in August

11 1993.”); Lyons v. England, 307 F.3d 1092, 1108 (9th Cir. 2002) (“[A]ppellants are permitted to offer

12 evidence of the pre-limitations discriminatory detail assignment scheme in the prosecution of their

13 timely claims.”). Although Defendant challenges Plaintiffs’ use of pre-limitations data in

14 combination with data during the limitations period, Lyons explicitly affirmed that “appropriate

15 background evidence will be evidence, either direct or circumstantial, that, when combined with

16 evidence of the employer’s present conduct, give[s] rise to an inference of unlawful discrimination.”

17 Lyons, 307 F.3d at 1111 (internal citations and quotation marks omitted). “In particular, . . .

18 statistical studies may include data from outside the statute of limitations to prove timely

19 discriminatory acts.” Chin, 685 F.3d at 150 (citation omitted). The Court notes that such data is

20 similarly permissible for a disparate impact claim. Paige v. California, 291 F.3d 1141, 1149 (9th

21 Cir. 2002) (“[I]t is appropriate to admit pre-liability data into evidence in a disparate impact case if

22 promotional practices remain similar over a long period of time, as they have in this case.”)

23 (citations omitted).

24

Pre-limitations evidence is especially warranted as a supplement to limitations data where, as

25 here, Defendant itself contends that the promotion process for any given candidate takes place over

26 the course of many years. See, e.g., Hoover Decl., Docket No. 586, ¶ 12 (explaining that regional

27 management receives recommendations from GMs as to promotable candidates and develop a

28 familiarity with potential candidates over the course of years); Omoss Decl., Docket No. 611, ¶ 8

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United States District Court For the Northern District of California

1 (“[T]he walks by me as a regional manager are but one of several sets of many observations, made

2 over many years, regarding the candidate’s job performance.”). Indeed, Defendant itself provides a

3 volume of evidence stemming from before the statute of limitations in the form of the over 80

4 declarations from Class Members describing their employment histories, which sometimes stretch

5 back into the 1980s. Defendant offers no basis for why its proffered evidence outside the limitations

6 period should be considered to rebut Plaintiffs’ charges, while Plaintiffs’ evidence should be

7 confined to the limitations period.

8

In reply, Defendant offers a new challenge to the use of pre-limitations data, arguing that

9 there was a change in Defendant’s promotion practices under the Rothman Workplan that renders

10 pre-limitations data inapposite. Setting aside the fact that Defendant failed to raise this argument

11 until its reply, the Ninth Circuit expressly found to the contrary. Ellis II, 657 F.3d at 979 & n.5

12 (“Costco’s challenged promotion practices for GM and AGM positions have not changed. . . .

13 Costco’s adoption of the Rothman Workplan does not change this result.”). Judge Patel also noted

14 that while Defendant made certain changes in response to its BOLD initiative, such changes largely

15 did not extend to the AGM and GM promotional process. Ellis I, 240 F.R.D. at 640.

16

Based on the Court’s own review of the record, the Court agrees with these findings.

17 Accordingly, the Court rejects Defendants’ challenge to Plaintiffs’ evidence on the basis of the

18 statute of limitations and finds Dr. Drogin’s analysis persuasive. In addition, apart from the merits,

19 Defendant’s argument – essentially, that its companywide changes to its previous practices through

20 the Rothman Workplan negates Plaintiffs’ evidence of discriminatory promotions – further confirms

21 the commonality finding of this Court. See Ellis II, 657 F.3d at 983 n.8 (“The district court is

22 required to examine the merits of the underlying claim in this context, only inasmuch as it must

23 determine whether common questions exist; not to determine whether class members could actually

24 prevail on the merits of their claims.”) (emphasis added).

25

Defendant also challenges Plaintiffs’ evidence on the basis of post-lawsuit data showing a

26 decrease in disparities between the promotion of men and women to AGM and GM positions.

27 However, “post-charge hiring behavior is less probative than pre-charge conduct because a business

28 may be improving its hiring practices to avoid liability or large damages in their pending

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United States District Court For the Northern District of California

1 discrimination case.” E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1277 n.14 (11th Cir. 2000)

2 (citing James v. Stockham Valves & Fittings Co., 559 F.2d 310, 325 n. 18 (5th Cir. 1977); Rowe v.

3 General Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972)); see also Stender v. Lucky Stores, Inc., C

4 88-1467 MHP, 1991 WL 127073, at *4 (N.D. Cal. Apr. 4, 1991) (“The court agrees that ‘[a]ctions

5 taken in the face of litigation are equivocal in purpose, motive and permanence.’”) (quoting James,

6 559 F.2d at 325 n.18); see generally Teamsters, 431 U.S. at 341-42 (1977) (“The company’s later

7 [post-suit] changes in its hiring and promotion policies could be of little comfort to the victims of the

8 earlier . . . discrimination, and could not erase its previous illegal conduct or its obligation to afford

9 relief to those who suffered because of it.”); E.E.O.C. v. Goodyear Aerospace Corp., 813 F.2d 1539,

10 1544 (9th Cir. 1987) (“An employer that takes curative actions only after it has been sued fails to

11 provide sufficient assurances that it will not repeat the violation to justify denying an injunction.”).

12 The Court rejects Defendant’s contention that post-filing data negates the disparity shown by

13 Plaintiffs.

14

In any event, regardless of its probative value on the merits, Defendant’s argument is once

15 again premised on a common contention regarding the class as a whole, and therefore actually

16 supports the finding of commonality. Indeed, the substantial increase in women promoted to AGM

17 and GM post-filing, if anything, provides further support for Plaintiffs’ claim that Defendant

18 exercises companywide control over its promotion practices and implements a “common mode of

19 exercising discretion.” Dukes, 131 S. Ct. at 2554. If promotional decisions were truly localized and

20 outside upper management’s control, it would be implausible to suggest that each local manager

21 suddenly decided to promote more women after Plaintiffs filed this lawsuit. See, e.g., Saad Supp.

22 Decl., Docket No. 620, Ex. R40 (showing that women’s promotions to AGM underperformed

23 relative to their proportions in the candidate pool each year pre-filing, while their promotions

24 overperformed relative to their proportions in the candidate pool post-filing); Drogin Decl., Docket

25 No. 666, ¶ 20 (“In the period after the lawsuit was filed, the percent of women among those

26 promoted nearly doubled, from 18.4% during 1999 through July 2004 to 34.7% in the period from

27

28

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United States District Court For the Northern District of California

1 August 2004 forward.”).33 Thus, far from undermining commonality, the Court concludes that

2 Defendant’s evidence of post-filing changes in the proportion of women hired into the positions at

3 issue supports commonality.

4

In sum, the Court rejects Defendant’s arguments regarding the time period for measuring

5 gender disparity insofar as those arguments bear on commonality.

6

D. Conclusion

7

Although Defendant likens this case to Dukes, this case is distinguishable from Dukes. First,

8 as described above, the putative class in this case is smaller and the scope of the claims far narrower

9 than in Dukes. Second, unlike in Dukes, here Plaintiffs point to several companywide policies and

10 practices allegedly responsible for the disparity in promotions to AGM and GM. In Dukes, “because

11 there was no company-wide policy to challenge . . . – the only relevant corporate policies were a

12 policy forbidding sex discrimination and a policy of delegating employment decisions to local

13 managers – there was no common issue to justify class treatment.” McReynolds, 672 F.3d at 488.

14 The instant case presents not simply the absence of a policy, as in Dukes, but discrete companywide

15 policies guided and supervised by a relatively small and coherent group of company executives.

16 These policies and practices, set and enforced by upper management, provide the “glue” the

17 Supreme Court sought – but did not find – in Dukes, sufficient to “say that examination of all the

18 class members’ claims for relief will produce a common answer to the crucial question why was I

19 disfavored.” Dukes, 131 S. Ct. at 2552. Third, while the Supreme Court found that Dukes had

20 attempted to rely only on a contention that there was a common culture within the company, here

21 Plaintiffs’ cultural and cognitive bias evidence provides a supplement to their concrete evidence of

22 companywide policies and practices. Fourth, Plaintiffs’ statistical evidence demonstrates classwide

23 – as opposed to fragmented or localized – gender disparities supporting its contention that

24 Defendant’s classwide practices yield classwide effects.

25

26

33 Similarly, the post-filing change cuts against Defendant’s other purported explanations for

27

the gender disparity in promotions, such as MM experience, leaves of absence, and other indicators of women’s purported lower interest in promotion. There is no indication that these indicators

28

changed drastically from pre-filing to post-filing. Thus, the post-filing change renders Defendant’s challenges to Plaintiffs’ statistical evidence even less persuasive.

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1

In sum, although this case bears some superficial factual resemblance to Dukes, it is in reality

2 a much different case. Because Plaintiffs have presented significant proof of companywide policies

3 and companywide gender disparities – essentially, purported common “causes” and common

4 “effects” – the Court finds Plaintiffs have satisfied the requirement for commonality under Rule

5 23(a)(2) for purposes of their disparate treatment claim.

6

iv. Disparate Impact

7

Although the above analysis applies with equal force to Plaintiffs’ disparate impact claim,

8 the Court briefly addresses disparate impact separately because under Dukes, the disparate impact

9 analysis is even clearer. Because the question under this theory is whether Defendant’s policies and

10 practices have a discriminatory impact on the Class as a whole without regard to intent, the Dukes-

11 identified problem of decentralized and discretionary individual managers’ decisions presents less of

12 a hurdle to certification if the plaintiffs identify specific companywide employment practices

13 responsible for the disparate impact. See Dukes, 131 S. Ct. at 2554 (“‘[I]n appropriate cases,’ giving

14 discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact

15 theory – since ‘an employer’s undisciplined system of subjective decisionmaking [can have]

16 precisely the same effects as a system pervaded by impermissible intentional discrimination.’”)

17 (quoting Watson, 487 U.S. at 990-91); id. at 2555 (conditioning the ability to bring such a claim on

18 “‘identifying the specific employment practice that is challenged’”) (quoting Watson, 487 U.S. at

19 994).

20

As described above, Plaintiffs have identified such specific employment practices within

21 Costco’s promotion system for AGMs and GMs. This system includes inter alia, a tap-on-the-

22 shoulder appointment process (without an application or interview), the mandated lack of posting for

23 open positions, promotion exclusively from within, a requirement of MM experience (for AGM) and

24 AGM experience (for GM), reliance on unwritten and informal evaluation of candidates by senior

25 management (e.g., floor walks), reliance on promotable lists of desired candidates, reliance on

26 common but unvalidated criteria for assessing candidates (supplied by the CEO and other top

27 executives), and placing a premium on schedule flexibility and ability to relocate. Plaintiffs’

28

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United States District Court For the Northern District of California

1 argument – that such companywide practices lead to disparate outcomes – is a common question

2 subject to classwide proof and rebuttal.

3

The Seventh Circuit’s recent decision in McReynolds is particularly instructive on this point.

4 In McReynolds, the Seventh Circuit considered whether 700 black Merrill Lynch brokers could

5 present claims for racially discriminatory impact and injunctive relief through class treatment.34 672

6 F.3d 482. The plaintiffs challenged two company-wide practices that gave brokers autonomy within

7 their respective branch offices. First, the company’s “teaming” policy allowed brokers to self-select

8 into teams that “share clients, and the aim in forming or joining a team is to gain access to additional

9 clients, or if one is already rich in clients to share some of them with brokers who have

10 complementary skills that will secure the clients’ loyalty and maybe persuade them to invest more

11 with Merrill Lynch.” Id. at 488. Branch managers and regional directors did not have authority to

12 direct brokers in how they selected team members. The plaintiffs argued that this policy permitted

13 brokers to discriminate in who they selected to be team members, with an adverse disparate impact

14 on black brokers. Second, the plaintiffs challenged Merrill Lynch’s account distribution policy,

15 which provided the process by which brokers competed for a departing broker’s accounts. “The

16 company establishes criteria for deciding who will win the competition[, . . .] includ[ing] the

17 competing brokers’ records of revenue generated for the company and of the number and

18 investments of clients retained.” Id. at 489. The plaintiffs argued that this account distribution

19 policy fed on and reinforced the discriminatory effects of the team policy; because black brokers

20 were less likely to gain admittance onto good teams, they were also less likely to be in a position to

21 win the account distribution competitions.

22

The Seventh Circuit reversed the district court’s denial of class certification, and found that

23 Merrill Lynch’s company-wide policies presented common issues proper for classwide adjudication

24

25

34 Although the McReynolds plaintiffs sought certification of their disparate impact claim

26

only under Rule 23(c)(4) (which provides for class action treatment “with respect to particular issues”), the court’s analysis is nonetheless highly relevant for purposes of commonality, as it

27

considered whether Merrill Lynch’s employment practices presented an issue common to the class as a whole and whether resolving questions as to the alleged disparate impact of the defendant’s

28

practices in a class action would be an efficient and effective means of moving the litigation forward. These are precisely the questions raised by Dukes and by the parties in this case.

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1 despite the fact that such policies permitted discretion on the part of brokers. In so doing, it

2 provided a useful hypothetical:

3

Suppose a police department authorizes each police officer to select an

officer junior to him to be his partner. And suppose it turns out that

4

male police officers never select female officers as their partners and

white officers never select black officers as their partners. There

5

would be no intentional discrimination at the departmental level, but

the practice of allowing police officers to choose their partners could

6

be challenged as enabling sexual and racial discrimination – as having

in the jargon of discrimination law a “disparate impact” on a protected

7

group – and if a discriminatory effect was proved, then to avoid an

adverse judgment the department would have to prove that the policy

8

was essential to the department’s mission. 42 U.S.C. §

2000e–2(k)(1)(A)(i); Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct.

9

2658, 2672–73 (2009); Bryant v. City of Chicago, 200 F.3d 1092,

1098–99 (7th Cir. 2000). That case would not be controlled by

10

Wal–Mart (although there is an undoubted resemblance), in which

employment decisions were delegated to local managers; it would be

11

an employment decision by top management.

12 McReynolds, 672 F.3d at 489.

13

McReynolds also acknowledged that the derivative effects of a companywide policy could

14 themselves present issues common to the class. For example, in that case, the fact that the team

15 policy had an adverse impact on black brokers generated a derivative additional disadvantage to the

16 class, because their inability to benefit from the team process made them also less able to benefit

17 from the account distribution policy. See id. at 489-90 (“[I]f as a result of racial preference at the

18 team level black brokers employed by Merrill Lynch find it hard to join teams, or at least good

19 teams, and as a result don’t generate as much revenue or attract and retain as many clients as white

20 brokers do, then they will not do well in the competition for account distributions either; and a kind

21 of vicious cycle will set in.”). The court concluded that “[t]his spiral effect attributable to company-

22 wide policy and arguably disadvantageous to black brokers presents another question common to the

23 class, along with the question whether, if the team-inflected account distribution system does have

24 this disparate impact, it nevertheless is justified by business necessity.” Id. at 490.

25

The same could be said of the GM promotion process and its dependency on AGM

26 experience at Costco as well as the AGM depending on MM experience. Because the process for

27 reaching these positions is tainted, according to Plaintiffs, it results in a dwindled pool of female

28 candidates who would be eligible for the higher-level promotion. In McReynolds, the discriminatory

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1 selection processes turned on the fact that those who choose “tend to base decisions on emotions and

2 preconceptions, for want of objective criteria,” and that those preconceptions lead them to choose

3 “people who are like themselves.” Id. at 489. The claim of discrimination in the case at bar is even

4 stronger than McReynolds. Here the exercise of discretion is confined and guided by companywide

5 policies and practices and directed by upper management, and there is evidence of a specific

6 corporate culture that disfavors women compared to men. More is alleged (and supported by

7 evidence) than in McReynolds where the discrimination resided in the exercise of discretion by and

8 personal preferences of brokers.

9

Furthermore, the court in McReynolds found commonality sufficient for certification based

10 on the policy which merely authorized the exercise of brokers’ discriminatory preferences based on

11 the contribution effect of that structure. The court explained:

12

[T]he defendant’s brief states that “any discrimination here would

result from local, highly-individualized implementation of policies

13

rather than the policies themselves.” That is too stark a dichotomy.

Assume that with no company-wide policy on teaming or account

14

distribution, but instead delegation to local management of the

decision whether to allow teaming and the criteria for account

15

distribution, there would be racial discrimination by brokers or local

managers, like the discrimination alleged in Wal–Mart. But assume

16

further that company-wide policies authorizing broker-initiated

teaming, and basing account distributions on past success, increase the

17

amount of discrimination. The incremental causal effect (overlooked

by the district judge) of those company-wide policies – which is the

18

alleged disparate impact – could be most efficiently determined on a

class-wide basis.

19

20 Id. at 490 (emphasis added).

21

Again the case at bar presents an even more compelling case. Not only did Costco’s policy

22 authorize the exercise of discretion at particular levels which has (allegedly) effectively “increase[d]

23 the amount of discrimination,” id., there is substantial and persuasive evidence that the discretion

24 was guided and influenced by discrete policies, practices, and culture which disfavored women.

25

Accordingly, consistent with Dukes and McReynolds, the Court concludes that along with

26 Plaintiffs’ disparate treatment described above, Plaintiffs’ disparate impact claim also satisfies the

27 commonality requirement.

28

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United States District Court For the Northern District of California

1

c. Typicality

2

Rule 23(a)(3) requires that the “claims or defenses of the representative parties [be] typical

3 of the claims or defenses of the class.” Courts assess typicality by determining “whether other

4 members have the same or similar injury, whether the action is based on conduct which is not unique

5 to the named plaintiffs, and whether other class members have been injured by the same course of

6 conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992).

7

Judge Patel found that Plaintiffs satisfied the typicality requirement because their claims

8 were typical of the Class’s as a whole, and that Defendant’s purported unique defenses did not

9 change that conclusion because “as a general matter, individualized defenses do not defeat

10 typicality.” Ellis I, 240 F.R.D. at 641 (citing Hanon, 976 F.2d at 508-09). On appeal, the Ninth

11 Circuit vacated this finding because

12

Hanon, however, supports Costco’s position. In Hanon, we stated that

“a named plaintiff’s motion for class certification should not be

13

granted if ‘there is a danger that absent class members will suffer if

their representative is preoccupied with defenses unique to it.’” 976

14

F.2d at 508 (quoting Gary Plastic Packaging Corp. v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir.1990)). We

15

found that the named plaintiff did not satisfy Rule 23(a)’s typicality

requirement because his “unique background and factual situation

16

require[d] him to prepare to meet defenses that [were] not typical of

the defenses which may be raised against other members of the

17

proposed class.” Id.

18 Ellis II, 657 F.3d at 984. The Ninth Circuit did not address Costco’s contentions as to its purported

19 unique defenses on the merits; rather, it remanded for this Court to consider in the first instance

20 “whether these defenses are typical of those that Costco may raise against other members of the

21 class or whether they are unique such that Plaintiffs cannot satisfy Rule 23(a)’s typicality

22 requirement.” Id. at 985. Costco admits that “[a] typical defense would be that the non-selected

23 person lacked the skill or ability, or seniority (if skill and ability were equal) possessed by the

24 individual who got the promotion[, or] that the unsuccessful candidate lacked merchandising

25 experience.” Costco Reply at 26.

26

In Hanon, the Ninth Circuit found that a plaintiff in a securities fraud action would be subject

27 to unique defenses that precluded typicality because he was subject to unique defenses which could

28

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1 “threaten to become the focus of the litigation.” Hanon, 976 F.2d at 508 (quotation omitted).

2 Specifically, the court found that

3

Hanon’s unique background and factual situation require him to

prepare to meet defenses that are not typical of the defenses which

4

may be raised against other members of the proposed class. Hanon’s

reliance on the integrity of the market would be subject to serious

5

dispute as a result of his extensive experience in prior securities

litigation, his relationship with his lawyers, his practice of buying a

6

minimal number shares of stock in various companies, and his

uneconomical purchase of only ten shares of stock in Dataproducts.

7

8 Id. Thus, the court concluded that “[b]ecause of Hanon’s unique situation, it is predictable that a

9 major focus of the litigation will be on a defense unique to him.” Id. at 509.

10

In the instant case, Costco’s purported defenses against the Named Plaintiffs are not unique

11 in such a way that they would create a distraction that will become a “major focus of the litigation.”

12 First, with respect to Plaintiff Horstman, Costco argues “that, due to family reasons, Horstman

13 rejected rotation to Front End Manager and stated several times that she wished to defer her pursuit

14 of promotion for three to five years.” Ellis II, 657 F.3d at 984. As noted above, this defense is far

15 from unique among class members, according to Defendant. Indeed, Costco presents a collection of

16 such examples from numerous class members, and argues that women’s personal choices account

17 for a large portion of any disparity in promotion. See, e.g., Kadue Decl., Docket No. 544, ¶ 6

18 (providing list of dozens of class members Costco argues deferred promotional opportunities for

19 personal or family reasons, and listing such a choice as among the basic factual propositions to be

20 gleaned from Costco’s employee declarations). Thus, far from atypical, Costco’s defense against

21 Horstman represents a key defense typical of claims it will raise against the class as a whole.

22 Costco’s defense as to Plaintiff Horstman thus supports, rather than undermines, typicality.

23

Second, with respect to Plaintiff Sasaki, Costco claims “that Sasaki is not an outstanding

24 performer and that Costco’s expert has concluded that there is no statistical evidence supporting a

25 claim that females are promoted to GM at a lesser rate in Sasaki’s region.” Ellis II, 657 F.3d at 984.

26 Such a claim is indistinguishable from Costco’s own admission that a typical defense would

27 constitute an argument that an employee lacked the skill or ability to obtain the promotion. Costco

28 Reply at 26. Thus, this defense is not unique and does not undermine typicality.

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1

Finally, with respect to Plaintiff Ellis, Costco asserts that “Ellis misrepresented her way into

2 Costco, lacked the Costco experience of other AGMs, transferred to a market with limited

3 promotional opportunities, and was disciplined for abusing subordinates.” Ellis II, 657 F.3d at 984-

4 85; see also Vachris Decl., Docket No. 627, ¶¶ 12-23, 28 (Regional Vice President of Operations for

5 District 2 of San Diego Region, describing Ms. Ellis’s discipline in 2004 for overbearing managerial

6 conduct).35 Ellis, of course, disputes these claims on the merits, and points out especially that she

7 was only disciplined after she filed discrimination charges. See Cross-Mot. at 27 n.17.

8

Ellis’s personal circumstances present a somewhat closer call on typicality. However, the

9 Court agrees that Costco’s defenses against Ellis largely fall into the “typical” categories Defendant

10 has already conceded. For example, her lack of Costco-specific experience is simply another way of

11 saying she lacked seniority, a defense Costco admits is typical. Similarly, her transfer to a limited

12 market fits within Costco’s broader claim that women, on average, choose not to put themselves in

13 promotion positions for various reasons, and that employees willing to relocate have greater

14 promotion potential. See Stockdale Decl., Docket No. 650, at 22-23 (women’s job preferences more

15 likely to be constrained by family demands); Mulligan Decl., Docket No. 647, ¶ 114 (same); Vachris

16 Decl., Docket No. 627, ¶¶ 6, 9.

17

Costco’s other defenses against Ellis present a closer case. Costco argues that Ellis

18 misrepresented her previous job experience and performance at Sam’s Club in order to get her job at

19 Costco, and that had Costco known of such a representation it would not have hired her. Gaherty

20 Decl., Docket No. 571, ¶ 8. In addition, it argues that she was subject to personal discipline for poor

21 behavior that caused her to be removed from the promotable list. Vachris Decl., Docket No. 627, ¶¶

22 12-23. However, at bottom, such claims are merely an extension of the typical claim that Ellis

23 lacked the “skill or ability” necessary for the promotion, based on her job performance. Costco

24 Reply at 26. Courts have rejected challenges to typicality even when alleged misrepresentations are

25 involved, because such claims are merely alternative explanations for the alleged discrimination, and

26

35 Although Costco also argues that Ellis’s retaliation claim would be a distraction, Plaintiffs

27

propose to sever her retaliation claim from the class claims and try it separately. Defendant does not oppose such a severance, and the Court agrees that Ellis’s retaliation claim should be addressed

28

through separate proceedings. Accordingly, the Court does not address whether the retaliation claim would defeat typicality.

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1 it is “always the defendant’s contention in class action discrimination claims[] that the plaintiffs

2 suffered no discrimination, or at least that any discrimination that occurred was isolated rather than

3 systematic.” Velez v. Novartis Pharmaceuticals Corp., 244 F.R.D. 243, 268 (S.D.N.Y. 2007); see

4 also id. (“Defendants cannot rebut typicality by claiming that something other than discrimination

5 explains the named plaintiffs’ experience.”); Duling v. Gristede’s Operating Corp., 267 F.R.D. 86,

6 97-98 (S.D.N.Y. 2010). Moreover, the Court is not convinced that Ellis’s two offenses are likely to

7 become a “major focus” of the litigation especially when compared to the common and typical

8 classwide issues that must be resolved.

9

Accordingly, the Court concludes Defendant’s defenses against the Named Plaintiffs “are

10 typical of those that Costco may raise against other members of the class,” thus satisfying typicality.

11 Ellis II, 657 F.3d at 985.

12

d. Adequacy

13

Rule 23(a)(4) requires that the class representatives “fairly and adequately protect the

14 interests of the class.” “This factor requires: (1) that the proposed representative Plaintiffs do not

15 have conflicts of interest with the proposed class, and (2) that Plaintiffs are represented by qualified

16 and competent counsel.” Dukes, 603 F.3d at 614. As noted above, the Ninth Circuit affirmed in part

17 and vacated in part Judge Patel’s ruling that each of the three Plaintiffs was an adequate

18 representative, but on remand Defendant does not contest that any Plaintiff is adequate under

19 Plaintiffs’ new hybrid class approach. Thus, adequacy is not in dispute.

20

2. Rule 23(b)(2) – Injunctive Relief Class

21

In addition to the threshold requirements of Rule 23(a), plaintiffs seeking class certification

22 must also satisfy one of the prongs of Rule 23(b). In the instant case, Plaintiffs seek to certify a

23 class of current employees under (b)(2), represented by Plaintiff Sasaki, for purposes of adjudicating

24 liability and securing injunctive relief on behalf of this class. Plaintiffs seek to certify a (b)(3) class

25 for purposes of monetary and individualized equitable relief (e.g., “rightful place” relief).

26

Rule 23(b)(2) mandates class certification if “the party opposing the class has acted or

27 refused to act on grounds that apply generally to the class, so that final injunctive relief or

28 corresponding declaratory relief is appropriate respecting the class as a whole.” “The key to the

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United States District Court For the Northern District of California

1 (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted – the notion

2 that the conduct is such that it can be enjoined or declared unlawful only as to all of the class

3 members or as to none of them.” Dukes, 131 S. Ct. at 2557 (internal quotations omitted). However,

4 the Rule does not permit certification of individualized monetary relief claims. See id. (Rule

5 23(b)(2) “does not authorize class certification when each class member would be entitled to an

6 individualized award of monetary damages”).

7

As a preliminary matter, the parties dispute whether the propriety of an injunctive relief class

8 under (b)(2) is properly at issue in this round of briefing. Costco’s initial motion did not address the

9 propriety of an injunctive relief class under 23(b)(2). Nor did the Ninth Circuit address the issue on

10 appeal; rather, Costco’s argument on appeal was that “the district court abused its discretion by

11 certifying the class pursuant to Rule 23(b)(2), because Plaintiffs do not primarily seek injunctive

12 relief.” Ellis II, 657 F.3d at 986 (emphasis added). The Ninth Circuit vacated Judge Patel’s ruling

13 as to certification under (b)(2) not because of any issue with regard to the injunctive relief sought,

14 but rather because the standard it employed regarding the availability of monetary relief under (b)(2)

15 was erroneous in light of Dukes. Id. at 987. That problem has been obviated by the narrowing of

16 relief now sought under (b)(2).

17

In opposition to Plaintiffs’ cross-motion for class certification, Defendant raises for the first

18 time the argument that Plaintiffs’ injunctive relief claims are non-certifiable under (b)(2). First,

19 Defendant argues that any “rightful place” relief would be subject to the same individualized

20 determinations that plague Plaintiffs’ claims for monetary relief, and that therefore such injunctive

21 relief is impermissible because (b)(2) “does not authorize class certification when each individual

22 class member would be entitled to a different injunction or declaratory judgment against the

23 defendant.” Dukes, 131 S. Ct. at 2557. Plaintiffs do not contest this point, and concede that any

24 “rightful place” equitable relief should be covered by (b)(3) and adjudicated during Plaintiffs’

25 proposed Stage 2 hearings along with individualized damages determinations. Plaintiffs’ Reply at

26 12 n.14.

27

Second, Defendant argues that Plaintiffs’ classwide injunctive relief claims fail under (b)(2)

28 because any injunctions requiring, e.g., job posting and interviews, “might help some class

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1 members, while hurting others.” Costco Reply at 29. On this point, Plaintiffs contend that

2 Defendant failed to raise this claim on appeal and that it has therefore waived any claim against

3 certifying such injunctive relief claims at this point. See Ellis I, 240 F.R.D. at 643 (“The injunctive

4 relief sought by the plaintiffs in this case would produce far-reaching changes at Costco and benefit

5 class members in the same way.”); Ellis II, 657 F.3d at 975 (issuing limited ruling that “[i]n light of

6 Wal–Mart’s rejection of the ‘predominance’ test, 131 S. Ct. at 2557–59, the district court must

7 consider whether the claims for various forms of monetary relief will require individual

8 determinations and are therefore only appropriate for a Rule 23(b)(3) class. Thus, we vacate the

9 district court’s certification of the class under Rule 23(b)(2).”). The Court agrees.

10

Even assuming the issue is properly raised, Defendant provides no authority for its argument

11 that injunctive relief applicable to the class as a whole is unwarranted under (b)(2) simply because

12 some women have managed to receive promotions even under the old system. In Rodriguez v.

13 Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010), the Ninth Circuit held, “The fact that some class

14 members may have suffered no injury or different injuries from the challenged practice does not

15 prevent the class from meeting the requirements of Rule 23(b)(2).” See also Floyd v. City of New

16 York, 82 Fed. R. Serv. 3d 833, at *13 (S.D.N.Y. 2012) (“[E]ven after Wal–Mart, Rule 23(b)(2) suits

17 remain appropriate mechanisms for obtaining injunctive relief in cases where a centralized policy is

18 alleged to impact a large class of plaintiffs, even when the magnitude (and existence) of the impact

19 may vary by class member.”) (citations omitted). While Costco points to declarations from certain

20 putative class members who were able to succeed under the current system, and thus may not

21 receive as great a benefit from any changes to that system, it provides no logical or evidentiary

22 support for the proposition that injunctive relief would hurt members of the class. See Costco Reply

23 at 29 & n.166 (listing class members’ declarations describing support they received in promotions

24 process). In any event, Costco’s argument, if accepted, would be far reaching and eviscerate the

25 availability of (b)(2) certification for injunctive relief in virtually all employment cases. Unless a

26 discriminatory practice were to preclude, e.g., all women from receiving any promotion, there would

27 always be employees who succeed despite a discriminatory pattern or practice. The Court rejects

28 Defendant’s argument.

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1

Because Defendant raises no other challenges to certification under (b)(2), and because

2 “class members complain of a pattern or practice that is generally applicable to the class as a

3 whole,” and any classwide injunctive relief would address said pattern or practice, Plaintiffs have

4 met the requirements of (b)(2) for purposes of seeking injunctive relief.36 In addition, because

5 liability turns on Defendant’s alleged patterns or practices, adjudication of liability is also

6 appropriate under (b)(2) in the first stage of trial. See, e.g., United States v. City of New York, 258

7 F.R.D. 47, 67 (E.D.N.Y. 2009) (certifying class at liability stage under (b)(2) and reserving until

8 later whether class treatment of the damages phase would be warranted). Furthermore, liability

9 under Plaintiffs’ disparate impact theory turns on Defendant’s specific employment practices that,

10 Plaintiffs contend, have classwide discriminatory effects. See McReynolds, 672 F.3d at 491-92

11 (certifying (b)(2) class for liability and injunctive relief in disparate impact case). Accordingly, the

12 Court GRANTS Plaintiffs’ motion to certify a Rule 23(b)(2) class for purposes of liability and

13 injunctive relief.

14 ///

15 ///

16

17

36 Indeed, Plaintiffs’ complaint highlights the classwide nature of their requested relief. The complaint seeks “[a] preliminary and permanent injunction against Costco and its officers, owners,

18

agents, successors, employees, representatives, and any and all persons acting in concert with them, that requires the following:

19

a. desisting from engaging in each of the unlawful practices,

20

policies, customs, and usages set forth in this complaint;

21

b. adopting non-discriminatory and objective promotion standards;

22

c. creating a transparent and non-discriminatory job posting and

23

application process for Assistant General Manager and General Manager positions;

24

d. instituting an affirmative action policy to ensure that women

25

receive the share of Assistant General Manager and General Manage positions they would have obtained were it not for Costco’s

26

discriminatory practices; and

27

e. creating a monitoring and reporting system to ensure that injunctive relief is fully implemented.

28 Third Am. Compl., Docket No. 537, at 24-25.

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United States District Court For the Northern District of California

1

3. Rule 23(b)(3) – All Monetary and Individual Equitable Relief

2

“[T]he presence of commonality alone [under 23(a)(2)] is not sufficient to fulfill Rule

3 23(b)(3).” Hanlon, 150 F.3d at 1022. Rather, “[t]o qualify for certification under [Rule 23(b)(3)], a

4 class must satisfy two conditions in addition to the Rule 23(a) prerequisites: common questions must

5 “predominate over any questions affecting only individual members,” and class resolution must be

6 “superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.

7 R. Civ. P. 23(b)(3). In the instant case, Plaintiffs seek to certify a Rule 23(b)(3) class for purposes

8 of monetary and equitable remedies, including back pay, rightful place relief, and compensatory and

9 punitive damages. Because Defendant raises a number of challenges to Plaintiffs’ punitive damages

10 claim, the Court will address punitive damages separately after considering predominance and

11 superiority with respect to the remaining claims.

12

a. Predominance

13

In evaluating whether common issues predominate, the operative question is whether a

14 putative class is “sufficiently cohesive” to merit representative adjudication. Amchem Prod., Inc. v.

15 Windsor, 521 U.S. 591, 623 (1997). Mere allegations of a pattern or practice of discrimination do

16 not per se satisfy the predominance requirement. See Falcon, 457 U.S. 147, 157 (“[T]he allegation

17 that such discrimination has occurred neither determines whether a class action may be maintained

18 in accordance with Rule 23 nor defines the class that may be certified”). Such allegations must, as

19 here, still be subject to generalized proof. Though common issues need not be “dispositive of the

20 litigation,” In re Lorazepam & Clorezepate Antitrust Litig., 202 F.R.D. 12, 29 (D.D.C. 2001), they

21 must “present a significant aspect of the case [that] can be resolved for all members of the class in a

22 single adjudication” so as to justify “handling the dispute on a representative rather than an

23 individual basis.” Hanlon, 150 F.3d at 1022. Courts must thus separate the issues subject to

24 “generalized proof” from those subject to “individualized proof” to determine whether plaintiffs

25 have satisfied the predominance requirement. See In re Dynamic Random Access Memory (DRAM)

26 Antitrust Litig., No. M 02-1486, 2006 WL 1530166, at *6 (N.D. Cal. June 5, 2006) (“Predominance

27 requires that the common issues be both numerically and qualitatively substantial in relation to the

28 issues peculiar to individual class members.”) (internal quotation omitted).

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United States District Court For the Northern District of California

1

In the instant case, the Court concludes that common issues predominate and that the class is

2 sufficiently cohesive to warrant (b)(3) certification. As discussed above with respect to

3 commonality and typicality, Plaintiffs have presented significant proof that Costco operates under a

4 common, nationwide promotion system for its AGM and GM positions and have identified specific

5 employment practices that have caused a disparity in promotions. Plaintiffs contend that this system

6 is discriminatory, both under a disparate treatment and a disparate impact theory. And as noted

7 above, Defendant’s arguments in response largely confirm the classwide nature of the parties’

8 dispute. Resolution of Plaintiffs’ challenge to those practices will resolve significant issues with

9 respect to the class as a whole, and this dwarfs individualized issues as to particular employment

10 decisions. Stinson v. City of New York, 10 CIV. 4228 RWS, 2012 WL 1450553, at *23 (S.D.N.Y.

11 Apr. 23, 2012) (“‘Class-wide issues predominate if resolution of some of the legal or factual

12 questions that qualify each class member’s case as a genuine controversy can be achieved through

13 generalized proof, and if these particular issues are more substantial than the issues subject only to

14 individualized proof.’”) (quoting Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002);

15 citing Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2184–87 (2011)).

16

With respect to the disparate treatment claim, whether Defendant has engaged in a pattern or

17 practice of discrimination such that all class members are entitled to a presumption of discrimination

18 under the Teamsters method of proof is a common issue subject to classwide resolution. This

19 “pattern and practice question predominates because it has a direct impact on every class member’s

20 effort to establish liability and on every class member’s entitlement to . . . monetary relief.” Ingram

21 v. The Coca-Cola Co., 200 F.R.D. 685, 699 (N.D. Ga. 2001) (certifying (b)(3) class of plaintiffs

22 alleging a pattern or practice of race discrimination in employment under Teamsters framework); see

23 also Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1357 (11th Cir. 2009) (“Common issues of

24 fact and law predominate if they ha[ve] a direct impact on every class member’s effort to establish

25 liability and on every class member’s entitlement to injunctive and monetary relief.”) (internal

26 citations and quotation marks omitted). Similarly, with respect to the disparate impact claim,

27 whether Defendant’s facially neutral policies and practices have a disparate impact on class

28 members, and whether those practices are nonetheless justified by business necessity, are similarly

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1 issues best addressed with respect to the entire class.37 Adjudicating these issues on a classwide

2 basis is necessary before any individualized proceeding can occur. See City of New York, 276

3 F.R.D. at 48 (“The [predominance] question is not one of scale; instead it is whether certification

4 ‘would achieve economies of time, effort, and expense, and promote uniformity of decision as to

5 persons similarly situated, without sacrificing procedural fairness or bringing about other

6 undesirable results.’”) (quoting Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010)).38

7

Although this case does present individualized questions with respect to any particular class

8 member’s entitlement to relief, Plaintiffs’ proposed trial plan addresses these concerns by employing

9 the Teamsters framework, in which individual class members will present their claims for relief in a

10 second phase of trial if liability is established, and Defendant will have an opportunity to present

11 individualized defenses with respect to each class member. See, e.g., City of New York, 276 F.R.D.

12 at 34 (“Individual issues arise in disparate impact and pattern-or-practice disparate treatment cases

13 only if the class establishes the employer’s liability and the litigation proceeds to the remedial

14 phase.”). The need for individualized hearings does not, on its own, defeat class certification. See,

15 e.g., Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975) (“The amount of damages is invariably

16 an individual question and does not defeat class action treatment.”); Stearns v. Ticketmaster Corp.,

17 655 F.3d 1013, 1026 (9th Cir. 2011) (citing Blackie in a case decided after Dukes and Ellis II); In re

18 Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 678 F.3d 409, 419 (6th Cir. 2012)

19

37 Because of the hybrid approach – certifying certain portions of Plaintiffs’ claims under

20

(b)(2) and others under (b)(3) – suggested by Plaintiffs and mandated by Dukes, the common issues relevant to Plaintiffs’ claims for monetary and equitable relief overlap with the common issues

21

present for the (b)(2) class. See Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 895 (7th Cir. 2011), cert. denied, 132 S. Ct. 242 (2011) (“[I]n an appropriate case, a Rule 23(b)(2) class and a

22

Rule 23(b)(3) class may be certified where there is a real basis for both damages and an equitable remedy.”) (citations omitted).

23

38 In addition, even with respect to individuals’ claims for monetary relief, there may be

24

additional common questions to resolve before the individual hearings begin. For example, “‘where the number of qualified class members exceeds the number of openings lost to the class through

25

discrimination and identification of individuals entitled to relief would drag the court into a quagmire of hypothetical judgments and result in mere guesswork,’ [citation], a case ‘may require

26

class-wide, rather than individualized, assessments of monetary relief.’ [citation].” City of New York, 847 F. Supp. 2d at 408-09 (quoting Catlett v. Mo. Highway & Transp. Comm’n, 828 F.2d

27

1260, 1267 (8th Cir.1987); Robinson, 267 F.3d at 161 n. 6); see also City of New York, 276 F.R.D. at 44-45. Although Dukes disapproved of a so-called “Trial by Formula” without any individualized

28

proceedings, 131 S. Ct. at 2561, there may be common issues to be resolved before embarking on such individual hearings.

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United States District Court For the Northern District of California

1 (“[N]o matter how individualized the issue of damages may be, these issues may be reserved for

2 individual treatment with the question of liability tried as a class action.”) (internal citations and

3 quotation marks omitted); Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 815 (7th Cir.

4 2012), reh’g denied (Feb. 28, 2012) (“It is well established that the presence of individualized

5 questions regarding damages does not prevent certification under Rule 23(b)(3).”) (citing, e.g.,

6 Dukes, 131 S. Ct. at 2558 (deeming it “clear that individualized monetary claims belong in Rule

7 23(b)(3)”)) (collecting additional cases); see also Johns v. Bayer Corp., 280 F.R.D. 551, 555-56, 560

8 (S.D. Cal. 2012) (certifying (b)(3) class of consumers who purchased a multi-vitamin due to

9 allegedly misleading advertising, even though Bayer argued some consumers “did not place any

10 credence on the” misleading claim) (internal citations omitted); Herrera v. LCS Fin. Services Corp.,

11 274 F.R.D. 666, 680-81 (N.D. Cal. 2011) (“[I]ndividual damages issues typically do not bar class

12 certification where common questions predominate over individual questions as to liability”) (citing

13 5 James W. Moore, Moore’s Federal Practice § 23.45[2][a] (3d ed. 2010); Hazelwood v. Bruck Law

14 Offices SC, 244 F.R.D. 523, 525 (E.D. Wis. 2007) (holding that common questions as to whether a

15 collection letter violated the FDCPA predominated over individual questions regarding class

16 members’ actual damages)). In this case, the Court concludes that the individualized hearings

17 required are narrow in scope and significance when compared to the threshold, classwide issues

18 subject to generalized proof.

19

In short, the multiple and substantial questions on such classwide issues predominate over

20 the claims for individual relief. The Court concludes that Plaintiffs have satisfied the predominance

21 requirement for (b)(3) certification.

22

b. Superiority

23

Rule 23(b)(3) requires that a class action be “superior to other methods for the fair and

24 efficient adjudication of the controversy.” Hanlon, 150 F.3d at 1023. The court considers the

25 following “non-exclusive” factors, id., in evaluating superiority:

26

(A) the class members’ interests in individually controlling the

prosecution or defense of separate actions;

27

(B) the extent and nature of any litigation concerning the controversy

28

already begun by or against class members;

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United States District Court For the Northern District of California

1

(C) the desirability or undesirability of concentrating the litigation of

2

the claims in the particular forum; and

3

(D) the likely difficulties in managing a class action.

4 Fed. R. Civ. P. 23(b)(3).

5

These factors support classwide treatment in the instant case. Given the class’s common

6 questions affecting the class as a whole at the liability stages of this matter, and given class

7 members’ ability to opt out of the monetary relief class or to pursue their claims for relief in the

8 second state of the proceedings under (b)(3), class members have a diminished interest in

9 individually controlling the common portions of this action. At the same time, the (b)(3)

10 certification framework safeguards “the due process rights of those class members, i.e. the right ‘to

11 decide for themselves whether to tie their fates to the class representatives’ or go it alone.’” In re

12 Motor Fuel Temperature Sales Practices Litig., 279 F.R.D. 598, 606 (D. Kan. 2012) (emphasis in

13 original) (quoting Dukes, 131 S. Ct. at 2559). Further, neither party contends other litigation

14 concerning the class herein has already been asserted elsewhere.

15

Moreover, the size of the (b)(3) class (estimated to be approximately 700 in number) is

16 manageable. Cf. Herrera, 274 F.R.D. at 680-81 (certifying (b)(3) class of over 4,000 borrowers

17 subject to allegedly deceptive and unlawful debt collection practices following foreclosure of the

18 homes for which they had borrowed the money at issue). Plaintiffs’ trial plan also presents a

19 manageable way to adjudicate these class members’ claims. Because Plaintiffs point to common,

20 classwide Costco promotion policies they contend are both intentionally discriminatory and cause a

21 disparate impact, judicial economy favors adjudicating their claims together in one proceeding.

22 Indeed, a classwide adjudication is far more manageable than the alternative individual proceedings

23 on all issues, because it has the potential to resolve multiple issues in one proceeding before

24 proceeding to individual hearings on relief. See United States v. City of New York, 276 F.R.D. 22,

25 49 (E.D.N.Y. 2011) (“In deciding whether class certification will achieve substantial efficiencies,

26 the proper comparison is not between class litigation and no litigation at all, but between class

27 litigation and actions conducted separately by individual class members.”). Classwide adjudication

28 on common issues also prevents inconsistent verdicts.

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United States District Court For the Northern District of California

1

Accordingly, the Court concludes that certification is appropriate under Rule 23(b)(3) for

2 Plaintiffs’ monetary and individual equitable relief claims.

3

c. Punitive Damages

4

Defendant separately argues that Plaintiffs cannot obtain certification for their punitive

5 damages claims under either (b)(2) or (b)(3) because it would violate both due process and the Rules

6 Enabling Act. Mot. for Order Elim. Class Claims, Docket No. 543, at 23. See generally State Farm

7 Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426 (2003) (“[C]ourts must ensure that the measure

8 of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the

9 general damages recovered.”); Philip Morris USA v. Williams, 549 U.S. 346, 349 (2007) (holding

10 that due process clause prohibited jury from basing punitive damages award “in part upon its desire

11 to punish the defendant for harming persons who are not before the court (e.g., victims whom the

12 parties do not represent)”) (emphasis in original). On appeal herein, the Ninth Circuit stated the

13 following regarding punitive damages:

14

The district court earlier found that claims for punitive damages are

suitable for certification under 23(b)(2), “because such ... claim[s]

15

focus[ ] on the conduct of the defendant and not the individual

characteristics of the plaintiffs.” Ellis, 240 F.R.D. at 643; see also

16

Dukes, 603 F.3d at 622 (noting that plaintiffs’ claim for punitive

damages did “not require individualized punitive damages

17

determinations”); Kolstad v. Am. Dental Assoc., 527 U.S. 526, 535

(1999) (noting that whether punitive damages are warranted is based

18

on the employer’s state of mind, i.e., if “[t]he employer [acted] with

‘malice or with reckless indifference to the plaintiff’s federally

19

protected rights.’” (quoting 42 U.S.C. § 1981a(b)(1)) (emphasis and

alterations omitted)). The court may consider [on remand] whether

20

punitive damages are an allowable “form[] of ‘incidental’ monetary

relief” consistent with the Court’s interpretation of 23(b)(2) because

21

they do not require an individual determination. See Wal–Mart, 131

S. Ct. at 2560.

22

23 Ellis II, 657 F.3d at 987. Plaintiffs argue the Ninth Circuit explicitly endorsed Judge Patel’s finding

24 that punitive damages did not require any individualized inquiry. However, it is not clear from the

25 court’s order whether it affirmed Judge Patel’s findings on this point or whether (more plausibly) it

26 merely summarized the issues for this Court to consider on remand. The Ninth Circuit’s citation to

27 Dukes suggests that it was not resolving the question of whether punitive damages could constitute

28 damages that do not require individualized assessments, as Dukes merely states that it “need not

77

United States District Court For the Northern District of California

1 decide in this case whether there are any forms of “incidental” monetary relief that are consistent

2 with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process

3 Clause.” 131 S. Ct. at 2560.

4

Assuming, in an abundance of caution, the question whether punitive damages requires some

5 individual inquiry is still present for the Court’s resolution, Defendant raises a number of challenges

6 to Plaintiffs’ proposed plan to adjudicate punitive damages. First, Defendant argues that Plaintiffs’

7 proposal to determine punitive damages during the first phase of trial along with liability and

8 injunctive relief, before any individualized determination as to compensatory damages or equitable

9 monetary relief, would violate the Seventh Amendment and Supreme Court authority. Second,

10 Defendant argues that punitive damages are not certifiable under Rule 23(b)(3) because classwide

11 adjudication would violate the Rules Enabling Act, which prohibits the Federal Rules of Civil

12 Procedure from “abridge[ing], enlarg[ing] or modify[ing] any substantive right.” 28 U.S.C. §

13 2072(b). Defendant also argues that individualized issues predominate. The Court addresses

14 Defendant’s concerns below.

15

First, as to the stage of proceedings at which Plaintiffs can seek punitive damages, there is a

16 debate among courts as to the best course of action for adjudicating such claims. On one side, for

17 example, a district court recently rejected the EEOC’s proposal (similar to Plaintiffs’ here) to

18 adjudicate punitive damages at the first phase of trial:

19

The EEOC’s proposal to determine punitive damages at the conclusion

of Stage I, before compensatory damages are determined, runs afoul of

20

the principles articulated in State Farm and Philip Morris USA. Under

the EEOC’s proposed scheme, the Stage I jury will determine the

21

amount of punitive damages to be awarded. Yet, at the time that the

jury is being asked to make that finding, there will have been no

22

determination as to the number of class members adversely affected by

the discriminatory practice. A finding of liability at the conclusion of

23

Stage I does not necessarily entitle all (or even any) members to

compensatory damages. . . . Rather than ensuring a “proportional

24

relationship” between compensatory and punitive damages, as State

Farm instructs, the EEOC’s plan seeks to completely divorce any

25

relationship between those determinations.

26 E.E.O.C. v. Sterling Jewelers Inc., 788 F. Supp. 2d 83, 89-90 (W.D.N.Y. 2011) (citing State Farm,

27 538 U.S. 408; Philip Morris USA, 549 U.S. 346). There is additional authority in accord. See, e.g.,

28 id. at 90-91 (collecting cases and secondary authority supporting the proposition that punitive

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United States District Court For the Northern District of California

1 damages must be determined after, not before, compensatory damages); Allison v. Citgo Petroleum

2 Corp., 151 F.3d 402, 418 (5th Cir. 1998) (“[P]unitive damages must be determined after proof of

3 liability to individual plaintiffs at the second stage of a pattern or practice case, not upon the mere

4 finding of general liability to the class at the first stage.”); Nelson v. Wal-Mart Stores, Inc., 245

5 F.R.D. 358, 378 (E.D. Ark. 2007) (“Individualized determinations are necessary to fully realize the

6 extent of the harm caused by Wal-Mart’s conduct and properly assess the need for punishment and

7 deterrence.”).

8

Other cases, cited by Plaintiffs, take their suggested approach and determine punitive

9 damages during the first phase. See Satchell v. FedEx Corp., C 03-02659 SI, 2005 WL 2397522, at

10 *12 (N.D. Cal. Sept. 28, 2005) (“The first phase will address liability and relief applicable to the

11 class as a whole, including declaratory and injunctive relief, and whether defendant is liable for

12 punitive damages.”); E.E.O.C. v. Dial Corp., 259 F. Supp. 2d 710, 712 (N.D. Ill. 2003) (dividing

13 trial into four phases, with same jury deciding phase one (liability for pattern or practice of

14 discrimination) and phase two (whether punitive damages are available and how much), and with

15 different juries deciding phase three (compensatory damages for individuals and the amount of

16 punitive damages available to each individual) and the court deciding phase four (apportionment of

17 punitive damages)); Barefield v. Chevron, U.S.A., Inc., 12 Fed. R. Serv. 3d 1232, 1988 WL 188433

18 (N.D. Cal. 1988).

19

These cases base their decision on several factors: (1) the focus of punitive damages is on

20 deterrence and punishment for the defendant’s conduct, so facts unique to each class member are

21 largely irrelevant, see Barefield, 1988 WL 188433 at *4; (2) judicial economy favors adjudicating

22 punitive damages in phase one in order to avoid repetitive proceedings and inconsistent results, see

23 id.; and (3) practical and equitable concerns favor determining punitive damages in phase one,

24 because “[r]equiring each class member to litigate the appropriate amount of punitive damages due

25 him or her in stage two proceedings would not only be inefficient but could also result in claimants

26 with comparable actual damages receiving substantially unequal punitive awards,” which could

27 result in substantially under- or over-compensating class members, id. at *5. As the court in Dial

28 observed, “[A] determination of an amount of punitive damages for all the persons, as a group, who

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United States District Court For the Northern District of California

1 ultimately are found to be aggrieved by the pattern or practice should be decided by the jury in

2 Phase I and II who has heard all the evidence regarding the nature and scope of the pattern or

3 practice. No jury deciding compensatory damages of an individual or small group of individuals can

4 have the same insight on what will be needed to deter the pattern or practice on a plant-wide basis or

5 for punishment as will the Phase I and II jury.” 259 F. Supp. 2d at 712-13.

6

Yet a third category of cases separates the availability of punitive damages (phase one) from

7 the amount of those damages (phase two). For example, another case cited by Plaintiffs explicitly

8 determined that the availability of punitive damages would be adjudicated in phase one because it

9 overlapped substantially with the classwide liability determination, but that the amount of punitive

10 damages would be determined in the second phase. That court explained,

11

Defendants confuse the issue of “the class’s eligibility for award of

punitive damages” with the issue of “determination of the amount of

12

punitive damages in individual cases.” Section “1981a(b)(1) requires

plaintiffs to make a ... ‘demonstrat [ion]’ of their eligibility for

13

punitive damages.” Wal-Mart Stores, 187 F.3d at 1245 (citing

Kolstad, 527 U.S. at 534, 119 S. Ct. at 2124). To demonstrate that an

14

employer is liable for punitive damages, plaintiffs must at least show

that the employer discriminated against them “in the face of a

15

perceived risk that its action [would] violate federal law.” Id. (citing

Kolstad, 527 U.S. at 536, 119 S. Ct. at 2125). Furthermore, and

16

decisively, “[t]he purpose of punitive damages is not to compensate

the victim, but to punish and deter the defendant,” and thus the focus

17

of a punitive damages claim is “not on the facts unique to each class

member, but on the defendant’s conduct toward the class as a whole.”

18

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 172 (N.D. Cal. 2004).

19

Moreover, the Tenth and Ninth Circuits have allowed the same jury to

determine defendant’s liability and plaintiff’s eligibility for punitive

20

damages. Cf. Markham v. Nat’l States Ins. Co., 122 Fed.Appx. 392,

399 (10th Cir. 2004); see also Dukes v. Wal-Mart, Inc., 509 F.3d 1168,

21

1190 n. 16 (9th Cir. 2007) (explaining that the determination of

liability in Phase I includes the determination of liability for punitive

22

damages).

23

. . . .

24

The question of eligibility of Plaintiffs to punitive damages will be

presented to the jury in the liability phase (Phase I). The assessment

25

regarding the amount of compensatory and punitive damages will take

place in Phase II.

26

27 E.E.O.C. v. Outback Steak House of Florida, Inc., 576 F. Supp. 2d 1202, 1205-07 (D. Colo. 2008).

28

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United States District Court For the Northern District of California

1

In the instant case, the Court concludes that while the availability of punitive damages should

2 be adjudicated in Stage One of the trial, determination of the aggregate amount and individual

3 distribution of punitive damages should be reserved for Stage Two. Such an arrangement will take

4 advantage of the bifurcated trial procedure while safeguarding Defendant’s right to ensure that any

5 punitive damages award remains tethered to the compensatory damages actually awarded in Stage

6 Two, consistent with State Farm.

7

Defendant argues that the No Re-Examination Clause of the Seventh Amendment39 bars

8 Plaintiffs’ bifurcation proposal. However, the Seventh Amendment actually favors the Court’s

9 conclusion: separating liability into two different phases (liability and punitive damages) could

10 potentially cause the precise problems Defendant seeks to avoid. That is, the classwide liability

11 question of whether Defendant has engaged in a pattern or practice of intentional discrimination may

12 overlap substantially with the question of whether Defendant acted with malice or reckless

13 indifference to Plaintiffs’ protected rights, as Plaintiffs must show in order to obtain punitive

14 damages. In particular, to obtain punitive damages, Plaintiffs will have to demonstrate that

15 Defendant “engaged in a discriminatory practice or discriminatory practices with malice or with

16 reckless indifference to the federally protected rights of an aggrieved individual.” Kolstad v. Am.

17 Dental Ass’n, 527 U.S. 526, 534 (1999) (emphasis omitted) (quoting 42 U.S.C. § 1981a(a)(1)). As

18 the Supreme Court explained, punitive damages under § 1981a “focus[es] on the employer’s state of

19 mind,” and mere evidence of individual decisions or outrageous conduct is insufficient to obtain

20 punitive damages; rather, “[t]he plaintiff must impute liability for punitive damages to” Costco

21 itself. Id. at 535, 536. Thus, given the nature of Plaintiffs’ claims alleging a pattern or practice of

22 discrimination, the punitive damages inquiry necessarily focuses on Defendant’s conduct with

23 respect to the class as a whole, rather than any individual employment decisions with respect to

24 specific employees. See Ellis II, 657 F.3d at 987 (punitive damages claims “do not require an

25 individual determination”); Barefield v. Chevron, U.S.A., Inc., 12 Fed. R. Serv. 3d 1232, at *3 (N.D.

26

27

39 “[N]o fact tried by jury, shall be otherwise re-examined in any Court of the United States ...” U.S. Const. amend. VII. See generally Matter of Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1303

28

(7th Cir. 1995) (“Of particular relevance here, the judge must not divide issues between separate trials in such a way that the same issue is reexamined by different juries.”).

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United States District Court For the Northern District of California

1 Cal. 1988) (“Because the purpose of punitive damages is not to compensate the victim, but to punish

2 and deter the defendant, any claim for such damages hinges, not on facts unique to each class

3 member, but on the defendant’s conduct toward the class as a whole.”) (citing Jenkins v. Raymark

4 Industries, 782 F.2d 468, 474 (5th Cir.1986), reh. denied, 785 F.2d 1034 (1986) (finding, under

5 Texas law and federal Constitution, that “[w]hile no plaintiff may receive an award of punitive

6 damages without proving that he suffered actual damages . . . the allocation need not be made

7 concurrently with an evaluation of the defendant’s conduct”)); Ellis I, 240 F.R.D. at 643 (same).

8 Thus, trying these potentially overlapping issues of liability and entitlement to punitive damages

9 before a single jury ensures compliance with the Seventh Amendment’s prohibition on re-

10 examination.

11

Conversely, separating all classwide liability determinations (of liability and availability of

12 punitive damages) from any quantification of damages would preserve separate questions for

13 separate fact finders and is thus consistent with the Seventh Amendment. See Arthur Young & Co.

14 v. U. S. Dist. Court, 549 F.2d 686, 697 (9th Cir. 1977) (“[S]eparation of the trial on individual

15 damage issues from the class trial in this securities fraud class action is not a novel procedure, nor in

16 contravention of the Seventh Amendment.”).40 As Judge Illston explained:

17

Courts have routinely adopted the approach advocated by plaintiffs in

which the first phase of the proceedings focuses exclusively on

18

classwide claims, e.g., whether a defendant has in fact engaged in

discriminatory employment practices. A jury verdict in favor of

19

plaintiffs at this phase would result in injunctive and declaratory relief,

and possibly, punitive damages. Individual compensatory damages

20

would be resolved in the second phase of the proceedings which, since

they would adjudicate individual claims, would not involve the “same

21

issues” as did the first phase. As evidenced by the numerous cases

across the country that have addressed this issue, the Seventh

22

Amendment does not mandate that all phases of the litigation be heard

by the same jury.

23

24 Butler v. Home Depot, Inc., C-94-4335 SI, 1996 WL 421436, at *6 (N.D. Cal. Jan. 25, 1996); see,

25 e.g., Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 458-59 (N.D. Cal. 1994)

26 (Henderson, J.) (“According to the authors of the leading treatise on class actions, most courts

27 adjudicating civil rights class actions in the employment discrimination context opt to bifurcate the

28

40 But see, e.g., Castano v. Am. Tobacco Co., 84 F.3d 734, 751 (5th Cir. 1996).

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United States District Court For the Northern District of California

1 liability and damages phases of the trial.”) (collecting citations); see also Robinson v. Metro-N.

2 Commuter R.R. Co., 267 F.3d 147, 169 n.13 (2d Cir. 2001), abrogated in part on other grounds by

3 Dukes, 131 S. Ct. at 2560-62 (“Trying a bifurcated claim before separate juries does not run afoul of

4 the Seventh Amendment, but a given [factual] issue may not be tried by different, successive

5 juries.”) (internal citations and quotation marks omitted).

6

Defendant’s due process rights are adequately protected under this scheme. Defendant will

7 have ample opportunity to present defenses to Plaintiffs’ punitive damages claim on the level of its

8 companywide policies and practices. If the Plaintiffs were to prevail and establish liability and

9 entitlement to punitive damages despite Defendant’s defenses, the remedial phase of the litigation

10 would offer Defendant the opportunity to present evidence as to the proper amount of punitive

11 damages as well as individualized defenses which could defeat any individual class member’s claim

12 to punitive damages. This bifurcated approach will safeguard Defendant’s right to ensure that the

13 amount of punitive damages is not disproportionate relative to compensatory damages.

14

Accordingly, the Court determines that (b)(3) certification of Plaintiffs’ punitive damages

15 claims is appropriate.

16

d. Rule 23(c)(4)

17

Although the Court determines that class certification is appropriate for all of Plaintiffs’

18 claims under a (b)(2)/(b)(3) hybrid approach, even if individualized issues were to predominate with

19 respect to Plaintiffs’ monetary relief claims, the Court would utilize the mechanism under Rule

20 23(c)(4) to adjudicate those issues capable of classwide resolution separately. “When appropriate,

21 an action may be brought or maintained as a class action with respect to particular issues.” Fed. R.

22 Civ. P. 23(c)(4); see generally Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)

23 (“Even if the common questions do not predominate over the individual questions so that class

24 certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate

25 cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these

26 particular issues.”). In the instant case, for the reasons set forth above, certification would be

27 appropriate under (b)(2) for liability and injunctive relief, and under (b)(3) for the availability of

28 punitive damages, even if certification of the remaining issues was premature or inappropriate. See

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United States District Court For the Northern District of California

1 McReynolds, 672 F.3d at 491 (finding certification appropriate under (b)(2) and (c)(4) where “[t]he

2 practices challenged in this case present a pair of issues that can most efficiently be determined on a

3 class-wide basis, consistent with” Rule 23 (c)(4)); City of New York, 276 F.R.D. at 49 (“[E]ven if the

4 individual questions were significant enough to defeat certification under Rule 23(b)(3), the court

5 will isolate those common questions appropriate for class treatment by narrowly certifying the non-

6 hire victim and delayed-hire victim subclasses as to the issues susceptible to classwide proof.”)

7 (citations omitted); Bautista-Perez v. Holder, C 07-4192 TEH, 2009 WL 2031759 (N.D. Cal. July 9,

8 2009) (“[I]n an abundance of caution, the Court will certify the class under Rule 23(b)(2) as to

9 questions of non-monetary injunctive and declaratory relief, and will defer the issue of certification

10 as to monetary relief until after the liability determination.”).

11

4. Rule 23(g) – Class Counsel

12

Having determined that Named Plaintiffs have met Rule 23’s requirements for class

13 certification, the Court must also appoint class counsel. See Fed. R. Civ. P. 23(g) (“Unless a statute

14 provides otherwise, a court that certifies a class must appoint class counsel.”). The record reflects

15 that proposed class counsel have experience in handling complex litigation and have done extensive

16 work prosecuting the claims in this action, including through appeal to the Ninth Circuit. The record

17 also shows that they have a command of the applicable law and are willing to commit resources to

18 representing class members’ claims. Accordingly, the Court appoints Impact Fund, Lewis,

19 Feinberg, Lee, Renaker & Jackson, P.C., Davis, Cowell & Bowe LLP, Lieff, Cabraser, Heimann &

20 Bernstein LLP, and Altshuler Berzon LLP as Class Counsel.

21

IV. CONCLUSION

22

For the foregoing reasons, having conducted a rigorous analysis of the evidence submitted by

23 both sides, the Court finds as follows:

24 1. The proposed class is so numerous that joinder is impracticable.

25 2. There are numerous common questions of fact and law, the answers to which are apt to drive

26 the resolution of this case.

27 3. The claims of the Named Plaintiffs are typical of those of the proposed class.

28

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United States District Court For the Northern District of California

1 4. Named Plaintiffs Shirley “Rae” Ellis, Leah Horstman, and Elaine Sasaki are adequate class

2 representatives.

3 5. Certification of the Injunctive Relief Class under Fed. R. Civ. P. 23(b)(2) is appropriate

4 because Defendant is alleged to have acted and/or refused to act on grounds generally applicable to

5 the class.

6 6. Certification of the Monetary Relief Class (back pay, compensatory, and punitive damages)

7 under Fed. R. Civ. P. 23(b)(3) is appropriate because common questions predominate over

8 individual questions and class treatment is the superior method of resolving the claims.

9 7. Impact Fund, Lewis, Feinberg, Lee, Renaker & Jackson, P.C., Davis, Cowell & Bowe LLP,

10 Lieff, Cabraser, Heimann & Bernstein LLP, and Altshuler Berzon LLP will fairly and adequately

11 represent the interests of the class.

12

Accordingly, the Court hereby ORDERS as follows:

13

The proposed classes are certified under Rule 23(b)(2) and 23(b)(3) and the classes are

14 defined as:

15

Injunctive Relief Class:

16

All women who are currently employed or who will be employed at any Costco

warehouse in the U.S. who have been or will be subject to Costco’s system for

17

promotion to Assistant General Manager and/or General Manager positions.

18

Monetary Relief Class:

19

All women who have been employed at any Costco warehouse store in the U.S. since

20

January 3, 2002 who have been subject to Costco’s system for promotion to Assistant

General Manager and/or General Manager positions.

21

22

The class claims, issues and defenses are those relating to Defendant’s liability and, if

23 appropriate, relief for Plaintiffs and the classes. Third Amended Complaint, Docket No. 537, ¶¶ 86-

24 113, 140.

25

Named Plaintiff Elaine Sasaki is appointed as the class representative for the Injunctive

26 Relief Class defined above. Named Plaintiffs Shirley “Rae” Ellis, Leah Horstman and Elaine Sasaki

27 are appointed as class representatives for the Monetary Relief Class defined above.

28

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United States District Court For the Northern District of California

1

The Impact Fund, Davis, Cowell & Bowe LLP, Lewis, Feinberg, Lee, Renaker & Jackson

2 P.C., Lieff, Cabraser, Heimann & Bernstein LLP, and Altshuler Berzon LLP, are appointed as

3 counsel to the classes defined above pursuant to Fed. R. Civ. P. 23(g).

4

The tentative trial plan, subject to modification as the case progresses, is as follows:

5

Stage One (Part One):

6

The jury decides:

7

•

Whether Costco has engaged in a pattern or practice of discrimination (liability for

classwide disparate treatment);

8

•

Whether Costco’s conduct meets the standard for an award of punitive damages; and

9

•

Whether Costco is liable to the Named Plaintiffs for gender discrimination and, if so,

10

in what amount;

11

The Court decides:

12

•

Whether Costco’s employment practices have had an adverse impact on the

class (prima facie case of disparate impact).

13

14

Stage One (Part Two):

15

The Court would decide:

16

•

Whether Costco’s employment practices were justified by business necessity (defense

to the disparate impact claim), and if so, whether there was a less discriminatory alternative;

17

•

In the event of a liability finding for either pattern-or-practice discrimination or

18

disparate impact, appropriate injunctive relief;

19

Stage Two:

20

•

Individual hearings to determine rightful place, back pay and compensatory damages

and adjudicate individual defenses; and

21

•

If liable for punitive damages, the aggregate amount of punitive damages owed to the

22

class and the share of said damages owed to each class member.

23

This Order disposes of Docket Nos. 543 and 664.

24

IT IS SO ORDERED.

25

26 Dated: September 25, 2012 27 28

_________________________ EDWARD M. CHEN United States District Judge

86

 
 372 F.Supp.2d 530 (2005)
Shirley Rae ELLIS, Leah Horstman, and Elaine Sasaki on behalf of themselves and others similarly situated Plaintiffs, v.
COSTCO WHOLESALE CORPORATION, Defendant.
No. C 043341MHP.
United States District Court, N.D. California.
May 31, 2005.
5312 *531 *532 Bill Lann Lee, James M. Finberg, Karin Kramer, Lexi Joy Hazam, Esq., Nirej S. Sekhon, Leiff Cabraser Heimann & Bernstein LLP, Elizabeth Lawrence, Steve Stemerman, Davis Cowell & Bowe, San Francisco, CA, Brad Seligman, Jocelyn D. Larkin, The Impact Fund, Berkeley, CA, for Plaintiffs.
Gerald L. Maatman, Jr., Seyfarth Shaw LLP, Chicago, IL, David D. Kadue, Ken Youmans, Seyfarth Shaw LLP, Los Angeles, CA, for Defendant.
MEMORANDUM & ORDER
PATEL, District Judge.
533 Shirley Rae Ellis, Leah Horstman, and Elaine Sasaki, current and former employees *533 of defendant Costco Wholesale Corporation, have brought a putative class action alleging gender discrimination in defendant's promotion and management practices. Pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e, et seq., plaintiffs allege that defendant's promotion system has a disparate impact on female employees, that Costco's management discriminates against women in promotions, and that defendant has retaliated against persons seeking redress for discrimination. In addition, plaintiffs bring pendent causes of action alleging gender discrimination in violation of the Fair Employment and Housing Act, California Government Code section 12940, et seq. Now before the court is defendant's motion under 28 U.S.C. section 1404(a) to transfer plaintiffs' complaint to the District of Colorado, or in the alternative, to the Western District of Washington or the Southern District of California. After considering the parties' arguments and submissions, and for the reasons set forth below, the court rules as follows.
BACKGROUND[1]
I. The Parties
A. Plaintiff Shirley Rae Ellis
Plaintiff Ellis has worked as an Assistant Manager at Costco since 1998. Before her employment with defendant, Ellis worked as a General Manager at Wal-Mart's Sam's Club, a position similar in function and duties to Costco's General Manager position. Ellis began her employment with defendant in a Michigan warehouse, but subsequently transferred, upon her request, to a Costco facility in Colorado in 2000. Def's Mot. at 3.
Ellis alleges that throughout her time with the company, she repeatedly advised Costco managers of her interest in a promotion to General Manager, as well as a willingness to consider a promotion located anywhere in the country. Due to defendant's failure to post or otherwise notify employees of management openings, Ellis was unable to apply for specific promotional opportunities. In a letter dated August 29, 2002, Ellis expressed her "burning desire to help the company be successful" and to advance within the company, stating that she wanted to learn how selection of General Managers worked, where she stood as a candidate for promotion, and what she might need to do to become a General Manager. Kadue Dec. (Oct. 18, 2004), Exh. C. She wrote: "If there is not an opportunity [in this region], would you consider recommending me to another Regional VP. I would love to

stay in Colorado, but I love Southern California and Texas as well. I would definitely consider any promotional opportunity." Id. She said that she was "trying to find out where [she] fit in the Costco Wholesale picture." Id. No promotional opportunities surfaced.
Plaintiff filed a charge of discrimination with the EEOC on or about October 30, 2002, alleging failure to promote on the basis of gender. She received a Notice of Right to Sue in relation to the charge. In 2004, she filed a second charge of discrimination with the EEOC, alleging retaliation, including a disadvantageous warehouse transfer, in response to her first EEOC grievance.
B. Plaintiff Leah Horstman
Plaintiff Horstman was hired for the position of "caller" in defendant's warehouses in 1981. She held numerous 534 positions over the course of her twenty-three *534 year employment with defendant, including fifteen years in
management positions. The full span of her employment was within Costco's San Diego Region. Horstman EEOC Aff. at 1. She remained an employee of defendant until 2004, most recently as a Receiving Manager in the La Mesa warehouse.
Horstman alleges that she informed defendant of her availability and interest in promotion to the position of Assistant Manager, and she may have advised Costco of her willingness to relocate outside of the San Diego area or outside of California.[2] Due to defendant's failure to post openings or use a standardized application procedure, she did not apply for specific positions. Plaintiff filed a charge of discrimination with the EEOC and the California Department of Fair Housing and Employment on or about October 11, 2003.
C. Plaintiff Elaine Sasaki
In 1985, plaintiff Elaine Sasaki began her twenty-year career with Costco as a front-end cashier. From 1995-96, Sasaki worked in Livermore, California as an administrative assistant to the Regional Vice Presidents of the Bay Area Region. In 1996, Sasaki was promoted to Assistant Manager, a position she still holds today. Other than a one-year stint at a warehouse in Texas, Sasaki's employment has been within Costco's Bay Area Region, in several different warehouses.
Sasaki alleges that her upward rise at Cosco has been thwarted by gender discrimination. Sasaki has repeatedly expressed her interest in promotion to a General Manager position by speaking to Vice Presidents and Senior Vice Presidents within her region as well as to management in other regions. See Sasaki Dec. at ¶ 3. On the basis of representations that growth in the Texas region promised better prospects for promotion, she transferred there in 2001. She returned to the Bay Area Region one year later, again on the basis of representations that growth would provide greater opportunities for advancement. In September, 2003, plaintiff wrote a letter to Judy Vadney, Director of Human Resources located in Issaquah, Washington, expressing her concern that she was being overlooked for promotion due to her gender. Sasaki Dep. at 19:1-7. Due to defendant's failure to post openings or use an application procedure, she did not apply for specific positions. She filed a discrimination charge with the EEOC on March 1, 2005 and is presently awaiting her Notice of Right to Sue.
D. Costco Wholesale Corporation
Defendant is a corporation headquartered in Issaquah, Washington, which operates "cash-and-carry membership warehouses" throughout the United States. Def's Mot. (Oct. 15, 2004) at 2. Costco's nationwide operations are divided into three divisions (Southwest, Eastern, and Northern/Midwest), each governed by an Executive Vice President. See Zook Dec. at ¶ 2, Zook Dec., Exh. A. These divisions are in turn divided into regions managed by 535 Senior Vice Presidents. Id. Relevant to the present analysis, Costco's Southwest *535 Division, headquartered in San Diego, encompasses the San Diego Region (which includes operations in Southern California, Colorado, Arizona, Utah, Nevada, and New Mexico), the Los Angeles Region, and the Texas Region. Id.; Vachris Dec. ¶ 2. Costco's Northern/Midwest Division, headquartered in Issaquah, Washington, encompasses the Bay Area Region, the Midwest Region, and the Northwest Region. Zook Dec. at ¶ 2-3; Zook Dec., Exh. A. Each Costco region is broken down into districts, led by District Vice Presidents, which are in turn composed of numerous Costco warehouses. Zook Dec., Exh. A.

Each Costco warehouse is staffed with a General Manager, multiple Assistant Managers, and a team of staff level, area, and department managers. Def.'s Mot. (Oct. 15, 2004) at 2-3. Costco does not use postings and/or an application process for open Assistant and General Manager positions, but promotional practices are standardized across the country. Zook Dep. at 131:8-20; 133:1-9; Hoover Dep. at 117:17-23. The decision to promote a lower level manager to an Assistant Manager is made by a warehouse's General Manager, with the District Vice President "also involved." See Zook Dep. at 132:8-16. The Senior Vice Presidents are informed of the choice, though they do not actually make the "actual selection." See Hoover Dep. at 92:5-11 (describing that as Senior Vice President, he "might put my two cents, but basically I just want to make sure they've done their homework"). Executive Vice Presidents in the divisional headquarters need not approve promotions to Assistant Manager. See Zook Dep. at 132:18-20.
The decision to promote an Assistant Manager to a General Manager is made by the General Manager who has overseen the Assistant Manager's work and the District Vice President, with "some input and involvement" from the Senior Vice President overseeing their region. See Zook Dep. at 133:23-134:2; Hoover Dep. at 94:7-10. The Senior Vice President notifies the Executive Vice President overseeing his region when a selection for General Manager has been made, but Executive Vice Presidents are simply "made aware" of the choice in order to "sign off" on the decision. Zook Dep. at 134:8, 135:10-17.
II. Procedural History
Plaintiff Ellis filed the present action on August 17, 2004. Pursuant to stipulations, plaintiff filed an amended complaint on November 2, 2004 adding plaintiff Leah Horstman and a second amended complaint on March 23, 2005 adding plaintiff Elaine Sasaki. On behalf of themselves and a class of similarly-situated employees, plaintiffs charge that defendant has a pattern and practice of gender discrimination, including failing to consider women for promotional opportunities on an equal basis to men; refusing to provide timely and accurate notice of employment opportunities; relying on subjective, arbitrary, and gender-based decisionmaking by a nearly all-male managerial force; promoting similarly-situated and less-qualified males more rapidly; and representing inconsistent requirements for promotion. Plaintiff Ellis also alleges retaliation for filing discrimination charges.
Now before the court is defendant's motion to transfer this action pursuant to 28 U.S.C. section 1404(a). Defendant concedes that the Northern District is a proper venue under 42 U.S.C. section 2000e-5(f)(3), but argues that the convenience of the parties and the witnesses favors transfer to the District of Colorado, or in the alternative, the Western District of Washington or the Southern District of California.
536 The court heard oral arguments in the present motion on November 29, 2004 and *536 ordered short supplemental briefs filed on the relative distribution of class members and evidence in the Northern and Southern Districts of California. On December 23, 2004, the court denied defendant's motion without prejudice to its automatic renewal after limited discovery on the scope and geographic distribution of the proposed class. Plaintiffs subsequently amended the complaint, adding named plaintiff Elaine Sasaki. The court heard oral arguments again on May 16, 2005, following the renewal of defendant's motion, and it enters the present decision in light of the limited discovery conducted to date and the addition of a new named plaintiff.
LEGAL STANDARD
Actions arising under Title VII of the Civil Rights Act of 1964 are subject to a special venue provision, 42 U.S.C. section 2000e-5(f)(3). See 42 U.S.C. § 2000e-16(d) (providing that "the provisions of section 2000e-5(f) through (k) of this title, as applicable, shall govern" employment discrimination actions). The section provides that Title VII actions may be brought (1) in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, (2) in the judicial district in which the employment records relevant to such practice are maintained and administered, or (3) in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(f)(3). The section also provides that "if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office." Id. The Ninth Circuit has construed the venue provision to hold that "venue is proper in both the forum where the employment decision is made and the forum in which that decision is implemented or its effects are felt." Passantino v. Johnson & Johnson Consumer Products, Inc.,

212 F.3d 493, 506 (9th Cir.2000). The transfer provisions of general applicability provide that where venue is improper, a district court must either dismiss the case or transfer it "in the interests of justice" to an appropriate jurisdiction. See Fed. R. Civ. Pro. 12(b)(3); 28 U.S.C. § 1406(a). Where venue is proper, a court may transfer any civil action to another jurisdiction where it may have been brought "for the convenience of parties and witnesses, in the interests of justice." 28 U.S.C. § 1404(a). See Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). In order to upset a plaintiff's choice of forum, a defendant must make a "strong showing of inconvenience." See Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir.1986). Analysis of suitability for transfer involves private factors, such as the ease of access to proof, costs, availability of compulsory process for unwilling witnesses, and other practical considerations for an efficient and expeditious trial. Id. In addition, it considers public factors such as the local public and jury pool's interest in localized controversies. Id. The Title VII special venue provision does not specify changes to the section 1404 or 1406 analysis, except in one respect: for purposes of sections 1404 and 1406, the judicial district of a defendant's principal office constitutes a district in which the action might have been brought. 42 U.S.C. § 2000e-5(f)(3).
DISCUSSION
Pursuant to 28 U.S.C. section 1404(a), defendant has moved to transfer the present action to the District of Colorado, the Western District of Washington, or the Southern District of California. Before turning to the relative 537 merits of these venues, the court addresses two disputed legal *537 issues between the parties: whether the venue provision of Title VII commands greater deference to a plaintiff's choice of forum and affects the section 1404(a) analysis, and whether the venue provision implicitly prohibits, or at least discourages, transfers among districts within a single state.
As a preliminary matter, defendant is correct that the analysis prescribed for section 1404(a) transfers governs in spite of the fact that a case includes Title VII allegations. Title VII codifies a special venue provision "for purposes of sections 1404 and 1406 of title 28," thus confirming the sections' general applicability to Title VII cases. See 42 U.S.C. § 2000e-5(f)(3). While the special venue provision of Title VII broadens the range of appropriate venues available to a plaintiff, ample case law supports the basic proposition that the statute does not prohibit transfers away from a plaintiff's chosen forum. See, e.g., Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 654, n. 13 (11th Cir.1993) (holding that Title VII is subject to the transfer provisions of section 1404(a)); In re Horseshoe Entertainment, 337 F.3d 429, 433 (5th Cir.2003) (applying section 1404(a) to a Title VII action); Harrison v. Int'l Ass'n of Machinists and Aerospace Workers, 807 F.Supp. 1513, 1516-17 (D.Or.1992) (same); Dean v. Handysoft Corp., 2005 WL 362662, *3 (E.D.Pa. Feb. 16, 2005) (same). This court finds that transfers of Title VII actions are thus governed by the well-settled public and private factors relevant to section 1404(a) analysis. See Decker Coal Co., 805 F.2d at 843.
However, plaintiffs are correct that the special venue provision must influence the contours of section 1404(a) analysis. The factors expressly identified as a basis for venue under Title VII 0907 the location of the discriminatory act or decision, the location of relevant employment records, and the location where a plaintiff would have worked but for the unlawful employment practice 0907 should therefore be key factors in analyzing the "interests of justice" prong of section 1404(a) analysis. See In re Horseshoe Entertainment, 337 F.3d 429, 434 (5th Cir.2003) (holding that location of relevant employment records should be given significance because it was expressly stated in the Title VII venue provision).
In addition, a plaintiff's choice of forum is entitled to greater deference where a case arises under Title VII. Congress expanded the available fora to plaintiffs grieving civil rights violations, thereby expressing intent to broaden a Title VII plaintiff's choice of forum. See Passantino, 212 F.3d at 504 (holding that Title VII's broad venue provision "was necessary to support the desire of Congress to afford citizens full and easy redress of civil rights grievances") (citations omitted). Where venue is governed by a more permissive standard, a plaintiff's choice is entitled to greater deference as a matter of law, even where that case is brought as a class action. As plaintiffs point out, in the context of special venue provisions for securities litigation 0907 and specifically, a class action 0907 the Ninth Circuit held that "[w]ithout question, the intent of the venue and jurisdiction provisions of the securities laws is to grant potential plaintiffs liberal choice in their selection of a forum, and unless the balance of factors is strongly in favor of the defendants, the plaintiff's choice of forum should rarely be disturbed." See Sec. Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1317 (9th Cir.1985) (internal citations and quotations

omitted). With similar Congressional intent operational here, the court finds that plaintiffs' choice of forum is 538 indeed entitled to deference in the "interest of the justice" prong of the section 1404(a) analysis, even *538 where
a plaintiff avails herself of liberal venue standards to file in a strategic forum.
The parties also dispute whether the Title VII venue provision prohibits transfers among districts within a single state. The statute protects a finding of venue "in any judicial district in the State in which the unlawful employment practice is alleged to have been committed," however it also explicitly recognizes section 1404 transfers, as discussed. See 42 U.S.C. § 2000e-5(f)(3) (emphasis added). Congress did not include the state-wide access language for any other basis of venue outlined in the statute, including the districts where employment records are kept, or where the employee would have worked but for discriminatory actions. Id. This distinction in the drafting of section 2000e-5(f)(3) would logically be explained by an intent to allow plaintiffs to assert venue outside the district where they experienced discrimination, perhaps on the assumption that Title VII plaintiffs were most likely to face hostile courts or juries in that location. In order to acknowledge this distinction without rendering section 1404(a) functionally inapplicable, and in order to read the "interests of justice" prong of the section 1404(a) analysis through the lens of the special venue provision, this court finds that a plaintiff's choice of forum is entitled to greater deference prior to intrastate transfer in cases where venue is based on allegations that the locus of unlawful employment practices occurred in that state, but not in that district.[3] To hold otherwise would allow section 1404(a) to deprive the "in the State" language of section 2000e-5(f)(3) of any practical effect. See Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (describing the "elementary" canon of construction that statutory interpretation should not render language inoperative or superfluous).
Taking those preliminary findings, the court turns to the section 1404(a) analysis. A "defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff's choice of forum." Decker, 805 F.2d at 843. This analysis requires "an individualized, case-by-case consideration of convenience and fairness." Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 23, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). The court thus considers the private and public factors which might weigh in favor of each of these alternate venues and measures these assets against those of the plaintiffs' chosen forum, the Northern District of California. Private factors to consider include: (1) the state that is most familiar with the governing law, (2) deference to a plaintiff's choice of forum, (3) the respective parties' contacts with the forum, (4) the contacts relating to the plaintiff's cause of action in the chosen forum, (5) the differences in litigation costs between the competing forums, (6) the availability of compulsory process to compel attendance of unwilling non-party witnesses, (7) the ease of access to sources of proof, and (8) the relevant public policy of the forum state. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir.2000). Public factors to consider include the level of congestion of the local docket, the local 539 public interest in the outcome of a case, avoidance of conflict of *539 laws issues, and the unfairness of burdening citizens in an unrelated forum with jury duty. See Decker, 805 F.2d at 843.
I. District of Colorado
Defendant's original motion asserted the District of Colorado as the most appropriate venue for the present case. Plaintiff Ellis is a resident of the state, and the majority of her years of employment with Costco have been in Colorado. Defendant argues that as Ellis's workplace, Colorado is the center of key facts, documents, and witnesses pertinent to her retaliation and failure to promote claims. Def.'s Mot. (Oct. 15, 2004) at 1-2. Witnesses located in Colorado include the hourly and salaried employees and supervising General Managers with whom Ellis worked over the course of her employment. Id. Ellis's core personnel file is located in the district, though records pertaining to employee complaints about her performance and her subsequent discipline are stored in Washington and San Diego. See Seligman Dec. (Nov. 12, 2004), Exh. A at 1-2.
Colorado is not the home of any Costco management above the level of each local warehouse's direct staff. Vachris Dec. ¶¶ 2-3. Colorado is part of defendant's "San Diego Region," and thus supervision of each warehouse in the state is located in San Diego. Id. A decision to promote a person into a General Manager position in Colorado is made in San Diego, subject to approval at the company's Washington state headquarters and after consultation with employees at a promotion candidate's warehouse. Id. at ¶¶ 27-28. Therefore, while there is significant record and testimonial evidence of Ellis's performance in Colorado, relevant to both of her claims, there were no persons in that state with the authority to actually promote her.

Defendant does not argue that Horstman or Sasaki had any contacts with Colorado, nor that there are witnesses, documents, or facts pertinent to their cases housed there. Independent of Ellis's claims, none of the Title VII bases for venue would establish venue for Horstman or Sasaki in Colorado: the alleged unlawful practices did not occur there, their employment records are not kept there, these plaintiffs have not alleged that they sought promotion in Colorado (any more than they sought promotion anywhere in the country), and defendant's principal offices are located elsewhere. See 42 U.S.C. § 2000e-5(f)(3). Furthermore, defendant's contacts with the District of Colorado are weaker than any of the competing venues. Costco has far fewer warehouses in Colorado than in the competing districts, and the state houses none of Costco's district, regional, divisional, or executive management. See Seligman Dec. (Nov. 12, 2004), Exh. 1 at 5; Seligman Dec. (Nov. 12, 2004), Exh. 2 at 1300-1303. Given the nationwide scope of the putative class as well as the distribution of decisionmakers affecting the three named plaintiffs' careers at Costco, Colorado is the least advantageous district in terms of access to proof relating to plaintiffs' causes of action.
In addition, transfer under section 1404 to the District of Colorado (or the Western District of Washington, discussed below), would require application of California's Fair Housing and Employment Act in out-of-state courts. While this is permitted as a matter of federal policy to protect a plaintiff's choice of law when a case is transferred under section 1404, a forum's familiarity with governing law is a private factor to be considered. See Van Dusen, 376 U.S. at 633, 84 S.Ct. 805; GNC Franchising, 211 F.3d at 498-99. The public interest in trying plaintiffs' California claims within this state weighs against transfer to Colorado or Washington.
540 *540 It would not serve the interests of justice, judicial efficiency, or convenience to transfer this action to a district where two of the named plaintiffs have no contacts, defendant has weaker contacts than in competing forums, fewer relevant employment records are stored compared to competing forums, and the putative class is less widely represented.
II. Western District of Washington
Defendant's transfer motion also asserts that the Western District of Washington is a "strong second choice" forum for the present action. See Reply at 21, n. 55. Issaquah, Washington is home to two Costco administrative functions: it is the company's central headquarters for nationwide administration and it is the headquarters of Costco's Northern Division, which encompasses the Bay Area Region. While venue would be technically proper in the district based on the existence of some personnel records pertinent to all three named plaintiffs' claims and the presence of Costco's "principal office," it is not a compelling candidate for section 1404(a) transfer.
Other than high level centralized administration, the Western District is not home to a significant cadre of key witnesses in this case. None of the three named plaintiffs lived, worked, or had contacts with the district. None of the Senior Vice Presidents, District Vice Presidents, or General Managers who had knowledge of any of the three plaintiffs' work performance or expressions of interest in promotion is located in the district. The fact that Issaquah is home to the divisional headquarters encompassing plaintiff Sasaki's Bay Area Region is not a strong basis for transfer, as the divisional management (Executive Vice Presidents) have the limited role of approving, rather than selecting, promotions to General Manager positions within the region. See Hoover Dep. at 94:7-10, 94:21-23; Schutt Dec. at ¶ 3,5. The parties have failed to submit any evidence of warehouses or promotions in the Western District of Washington.
The strongest case to be made for transfer to the Western District is the presence of Judy Vadney, Costco's Director of Human Resources, as well as a few senior managers with general knowledge of Costco's promotion processes and organizational structure.[4] Even coupled with the location of some of plaintiffs' employment records in the district, however, these sources of proof are relatively minor in the geographic distribution of evidence in this case, and they would not outweigh the advantages of other proposed forums or the deference due to the plaintiffs' choice of forum. Key decision-makers who had the authority to evaluate plaintiffs' suitability for promotion and/or select them for promotions are located elsewhere.
A final mark against the district is that the most sound basis for venue in the Western District of Washington is to 541 be found in the residual clause of Title VII's venue provision, which permits venue in *541 the district housing a
respondent's principal office "if the respondent is not found" in the district where the discrimination occurred or its

effects were felt. See 42 U.S.C. § 2000e-5(f)(3). As defendant concedes since several other districts where Costco can be found satisfy the principal grounds for venue in the statute, the site of Costco's principal offices is not a favored district under the terms of the statute. If plaintiffs had brought the case there based on the location of employment records, venue would have been vulnerable to challenge because of the limited central recordkeeping related to warehouse managers.
Plaintiffs rightly assert that section 1404(a) is not a mechanism by which to transfer inconvenience from one party to another. See Van Dusen, 376 U.S. at 646, 84 S.Ct. 805 ("Section 1404(a) provides for transfer to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient"). Thus this court will not require plaintiffs to bring their claims in a district so far removed from the geographic nexus of their claims and sources of proof.
III. Southern District of California
The causes of action of two named plaintiffs in this action are anchored in San Diego, located in the Southern District of California. As Horstman lived and worked in San Diego throughout her career with Costco, all witnesses and employment records pertinent to her case 0907 other than the centralized records stored at Costco's personnel headquarters in Washington 0907 are located in the Southern District. Plaintiffs have not asserted any other residence for Horstman, and this court presumes that the Southern District continues to be her home forum. While a plaintiff's residence is never a basis for venue, it is an indicator of party contacts and convenience captured by section 1404(a). See 42 U.S.C. § 2000e-5(f)(3); 28 U.S.C. § 1404(a).
A key witness to Ellis's claims is also located in San Diego. Since 2004, Ron Vachris has been the Vice President of Operations for District 2 of Costco's San Diego Region, a region which includes all Costco operations in Colorado. Vachris Dec. ¶¶ 1-2. In February 2004, he investigated alleged complaints about Ellis's conduct as Assistant Manager of the Aurora, Colorado warehouse, making him a key witness for Ellis's claims of retaliation. See Vachris Dec. ¶¶ 5-8; Ellis Dec. ¶¶ 6-8. Also relevant to Ellis's case, the San Diego Regional headquarters is home to the chain of management responsible for making and approving Vachris's General Manager promotion decisions for the region, including Bob Hicok, Senior Vice President of the San Diego Region and Dennis Zook, Executive Vice President for the Southwest Division. See Vachis Dec. ¶ 27. Because Ellis specified San Diego as among her most desired locations for a promotion, the hiring of General Managers in the district over the relevant time period will be of special interest in her case. See Kadue Dec. (Oct. 18, 2004), Exh. C.
Named plaintiff Sasaki does not have a significant nexus with the Southern District, however. She spent all but one of her 23-year history with Costco in its Bay Area Region headquartered in the Northern District. For one year, from March 2001 to March 2002, she transferred to the Texas Region, which is headquartered in Texas, overseen by the Southwestern Regional Headquarters based in San Diego. As discussed in reference to the Western District of Washington, divisional headquarters do not represent significant contacts with plaintiffs' 542 causes of action, because Executive Vice Presidents are weak participants in the selection process for *542 promotions to General Managers. See Schutt Dec. at ¶¶ 3, 5; Hoover Dep. at 94:7-10, 94:21-23.
In terms of public factors, the local public and jury pool in the Southern District of California presumably has a strong interest in the treatment of two of the named plaintiffs, due to the connections of two plaintiffs' grievances to the district. In addition, the Southern District is as well situated as this court to consider plaintiffs' pendent claims under California law, and thus to manage and oversee plaintiffs' intended California-based sub-class. The Southern District's interest does not extend as forcefully to the class as a whole, as districts with the largest concentrations of Costco warehouses have an even stronger community interest in trying the class controversy and ensuring non-discriminatory management of the franchise.
Defendant has made a strong showing of the advantages of trying this case in the Southern District of California. This showing, however, must be understood in light of Title VII's grant of venue "in any judicial district in the State in which the unlawful employment practice is alleged to have been committed." See 42 U.S.C. § 2000e-(f)(3) (emphasis added). As discussed, this language aggregates judicial districts within a single state in furtherance of Congress's intent to "afford citizens full and easy redress of civil rights grievances." See Passantino, 212 F.3d at 504. While there is nothing that would bar this court from disaggregating those districts in the application of section 1404(a), the court does interpret the statute to weigh against such transfers and accord plaintiff's chosen

forum greater significance, if (as here) venue is asserted based on unlawful employment action within the state. This is, in effect, simply a reading of section 1404 through the lens of Title VII's special venue provision.
Taking each of these findings into account, the "convenience" and "justice" of litigating this case in the Southern District must be weighed against a section 1404(a) analysis of plaintiff's chosen forum.
IV. Northern District of California
Defendant concedes that the Northern District is a proper venue for this suit. Def.'s Mot. (Oct. 15, 2004) at 2, n. 1. There are three reasons why venue is indeed proper in this district: (1) this is a judicial district where Ellis, Horstman, and Sasaki allege they would have worked but for the alleged unlawful employment practices, (2) this district is within California, a state in which alleged unlawful employment practices related to all three named plaintiffs were located, and (3) this is the district housing the great majority of employment records relating to Sasaki's failure to promote claims. See 42 U.S.C. § 2000e-5(f)(3). Defendant argues that the Northern District should be rejected as mere forum-shopping by plaintiffs. Def.'s Reply (May 2, 2005) at 6.
Named plaintiffs do in fact have meaningful contacts with this district, both in terms of work history and causes of action. This is easily the most appropriate forum for adjudication of Sasaki's claims 0907 in terms of her record and testimonial evidence relating to her promotability as well as the actual decisions to bypass her for promotion.[5] 543 Though Sasaki's *543 warehouse assignments were in the Eastern District of California, it is the Bay Area Region's headquarters which is most pivotal to her failure to promote claims. Livermore, California, which is located in this district, is the home to employment records relating to Sasaki's work performance (promotability), her expressions of interest in promotion, and her consideration for various openings within the district. It is also home of Dennis Hoover, Jeff Abadir, and John Booth 0907 the three most relevant witnesses to Sasaki's cause of action for gender discrimination in promotions. Furthermore, plaintiff worked for Costco's administration in Livermore from 1995-96, such that all documentary and testimonial evidence relating to her employment during that time would be stored in this district.
While plaintiffs Ellis and Horstman have limited contacts here, either of them could independently establish venue in this district. Plaintiff Ellis contacted a Regional Vice President located in the Northern District to express her interest in a promotion to a General Manager position within the Bay Area Region, making this district a place that she allegedly would have worked but for the unlawful promotional practices. See Ellis Dep. at 38:20-39:20. In addition, Ellis's letter specifically requesting promotion is a basis of her assertion of venue here; though it did not specify this region as a place of special interest for Ellis, it is nevertheless within a state in which she sought promotion. See Kadue Dec., Exh. D. As for plaintiff Horstman, her claim of venue relies on unlawful employment practices within the state of California, as well as a general interest in promotion outside San Diego.
Defendant has very strong contacts within this district as well, affecting both the private factor analysis of party convenience and the public factor analysis of local interest in the litigation. Defendant has a high concentration of employees, promotional decision-makers, and managerial openings here. The Northern District is home to 27 Costco warehouses (as opposed to 6 in the District of Colorado and 14 in the Southern District[6]) as well as a regional headquarters governing 38 warehouses. Seligman Dec., Exh. A. at 3-5.[7] While the Southern District is also home to a Costco regional headquarters, the company's Bay Area Region made a total of ten promotions to General Manager since 2002, as compared to only one in the San Diego Region during the same period. Id. at 4.
As a result of Costco's strong presence, this district is home to a proportionately large segment of the putative class, with sixty-eight potential class members as opposed to forty-four in the Southern District. Drogin Dec. ¶ 7. Courts may take into account the distribution of a putative class in assessing transfer requests. See Berenson v. Nat'l Financial Services, LLC, et al, 319 F.Supp.2d 1 (D.D.C.2004) (transferring a plaintiff class out of the named plaintiff's home forum primarily on the basis that the largest percentage of the putative class was located in the 544 alternative *544 forum). As discussed, the fact that this district lacks a divisional headquarters is not significant, because promotions to Assistant Manager do not meaningfully involve this tier of governance, and promotions to General Manager require only that divisional heads are "made aware" of a selection and "sign off" on the choice. See Zook Dep. at 132:8-20; 134:8, 135:10-17; Schutt Dec. at ¶¶ 3,5; Vachris Dec. at ¶¶ 27-28.

If this case is certified as a class action, plaintiffs will no doubt scrutinize the promotional decisions of all Costco regional headquarters and managerial staff in the country. In that sense, this district is similarly-situated to each federal district with a strong presence of defendant's warehouses and management. See Italian Colors Restaurant v. American Express Co., 2003 WL 22682482 (N.D.Cal.2003) (cautioning that due to California's population, "virtually every significant class action case would need to be litigated in California"). However, it has a characteristic that all of these Costco management districts except the Southern District of California lack: it is the most appropriate forum for litigating the claims of at least one named plaintiff. Furthermore, it is a forum for which there has been no showing of inconvenience for Costco, due to defendant's strong contacts here and the agreement of the parties to travel to witnesses' own locales for purposes of discovery.
The Northern District is the plaintiff's chosen forum, and as such it is entitled to some deference. In class actions, this deference is reduced where a plaintiff lacks contacts with the chosen district. See Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir.1987) (holding that "when an individual brings a derivative suit or represents a class, the named plaintiff's chosen forum is given less weight"). In judging the weight to be accorded to the choice of forum, consideration must be given to the named plaintiffs' contacts with the forum, including those relating to plaintiffs' cause of action. Id. "If the operative facts have not occurred within the forum and the forum has no interest in the parties or subject matter, [the plaintiff's] choice is entitled to only minimal consideration." Id. In the present action, deference to the choice of forum for the entire class should be preserved, because a named plaintiff has brought the action in the judicial district with which she has had the most extensive contacts. This is particularly true in the present case where, as discussed, a liberal venue provision provides additional grounds for deferring to the plaintiffs' choice of forum.
Other applicable factors in a section 1404(a) analysis, such as the familiarity of the court with the governing law, are neutral here. This court is as well or better equipped to apply both Title VII and the California Fair Housing and Employment Act as any of the three alternate forums proposed, and plaintiffs have not alleged any pendent claims arising under Colorado or Washington law. While this court's docket is more congested than that of the Western District of Washington and the District of Colorado, those districts are weaker choices for the convenience of the parties generally. Congestion in the civil docket of the Southern District of California is lower than the Northern District, but that district's dramatically heavier criminal docket renders the advantages of transfer on grounds of court congestion at best a marginal note in favor of the Southern District. See Def's Mot. (10-18-04), Exh. (Judicial Statistics); Def's Supp. Mot. (12-1-04), Exh. A.
In sum, the landscape of the parties' contacts with the competing venues is as follows. The District of Colorado is 545 the *545 home of testimonial and record evidence of Ellis's work performance (relevant to both failure to promote
and retaliation claims), six Costco warehouses, and evidence relating to one promotion to General Manager during the relevant time period. The Western District of Washington houses limited personnel records with respect to all three plaintiffs, divisional management of the area encompassing Sasaki's Costco district, and executive and regional management of Costco operations. The Southern District of California is the home of Ellis and Horstman personnel documents, witnesses relating to Ellis and Horstman's failure to promote claims, management of a large region of Costco operations, management of a large division of Costco operations, fourteen warehouses, and evidence relating to one promotion to General Manager during the relevant period. The Northern District is the home of Sasaki's personnel records, witnesses relating to Sasaki's failure to promote claims and work performance, management of a region of Costco operations, twenty-seven warehouses, and testimonial and documentary evidence relating to six promotions to General Manager positions during the relevant period. The Northern District of California is also plaintiffs' choice of forum. The two California districts are better positioned to apply plaintiffs' claims arising under the California Fair Housing and Employment Act. All three forums represent districts where plaintiffs allegedly would have worked but for the defendant's unlawful promotional practices.
While each of these venues contains valuable employment records and party contacts, and each poses advantages and disadvantages in the convenience litigating the present nationwide action, the court finds that plaintiffs are entitled to their choice of forum. None of the three alternative forums satisfies defendant's burden to overcome the presumption in favor of a plaintiff's choice of forum. Despite years of change in the case law of forum non conveniens and section 1404(a) analysis, it remains a principle of the doctrine today that: "It is often

said that the plaintiff may not, by choice of an inconvenient forum, `vex,' `harass,' or `oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). See Ravelo Monegro v. Rosa, 211 F.3d 509, 513 (9th Cir.2000) (referring to the "strong presumption in favor of a domestic plaintiff's forum choice"). Defendant has not made a "strong showing of inconvenience" in this case, and they are not entitled to a transfer disrupting the plaintiff's choice of forum. See Decker Coal Co., 805 F.2d at 843.
CONCLUSION
For the reasons stated above, the court hereby DENIES defendant's motion to transfer this action pursuant to 28 U.S.C. section 1404(a).
IT IS SO ORDERED.
[1] All facts herein have been taken from the plaintiffs' First Amended Complaint, unless otherwise noted.
[2] Whether Horstman was willing to consider relocation in order to be promoted is a matter currently in dispute between the parties. Compare Cardoso Dec. at ¶¶ 5-10 with Horstman Dep. at 51:11-52:1; Horstman EEOC Aff. at ¶ 3. For the purposes of this largely pre-discovery motion concerned with the parties' contacts in competing forums, the court need not resolve this issue. There is nothing in the record to suggest that Horstman sought promotion to positions in the Northern District of California, Western District of Washington, or District of Colorado to any extent greater than her general quest for a promotion anywhere in the country.
[3] Some courts have granted section 1404(a) motions to transfer Title VII cases to districts within a single state. See, e.g., Dhillon v. The Regents of the University of California, 1995 WL 39466 (N.D.Cal. Jan. 31, 1995); In re Horseshoe Entertainment, 337 F.3d 429, 434 (5th Cir.2003); Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 654-55 (11th Cir.1993). However, these courts have failed to address the venue provision's statewide language and its potential effect on section 1404.
[4] Both parties have argued (based on an unpublished order from this district) that the presence of senior management in any given district should not be a persuasive factor in assessing the convenience of the litigation in alternate forums. See Def.'s Supp. Reply (May 2, 2005) at 2; Pls.' Supp. Opp'n (December 13, 2004) at 2. As evident from the very fact that the parties make this contention to diminish the advantages of opposing venues, this is as best a neutral factor. Applying the rule would discount the showing of convenience made by all of the four districts at issue here, and it would overlook the fact that in a failure to promote case, persons in management are arguably more important than hourly employees and other non-party witnesses not subject to compulsory process in the forum district.
[5] This court appreciates defendant's frustration that Sasaki was a late addition to the roster of named plaintiffs in this action. However, defendant stipulated to that addition, and there is no basis for the court to now ignore the locational center of gravity of her claims. Though her addition after the filing of defendant's motion must at some level tip the "interests of justice" in this action, it cannot escape this court's notice that both parties to this action are engaging in aggressive litigation tactics. This fact is conspicuously evidenced by defendant's twenty-two declarations barraging this court with the details of adverse employment incidents in Ellis's work history with Costco. These declarations grossly exceeded their ostensible purpose of noting the locations of witnesses in this action.
[6] The parties have provided no information regarding the number of warehouses in operation in the Western District of Washington.
[7] The presence of these warehouses indicates high numbers of potential candidates for promotion as well as potential positions for filling via promotion.
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 CCaassee33:0:044--ccvv--0033334411--EEMMCC DDooccuummeennt7t78709 FFilieledd0022/1/120/1/144 PPaaggee11ooff641

1
THE IMPACT FUND
2 Jocelyn D. Larkin (SBN: 110817)
Robert Schug (SBN: 249640)
3 125 University Avenue, Suite 102
Berkeley, CA 94710
4 Telephone: (510) 845-3473
Facsimile: (510) 845-3654
5 jlarkin@impactfund.org

DAVIS, COWELL & BOWE, LLP Steve Stemerman (SBN: 067690) Elizabeth A. Lawrence (SBN: 111781) 595 Market Street, #1400 San Francisco, CA 94105 Telephone: (415) 597-7200 Facsimile: (415) 597-7201 eal@dcbsf.com

6 LEWIS, FEINBERG, LEE,
RENAKER & JACKSON, P.C.
7 Bill Lann Lee (SBN: 108452)
Lindsay Nako (SBN: 239090)
8 476 9th Street
Oakland, CA 94607
9 Telephone: (510) 839-6824
Facsimile: (510) 839-7839
10 blee@lewisfeinberg.com

ALTSHULER BERZON LLP James M. Finberg (SBN: 114850) 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 jfinberg@altshulerberzon.com

11 LIEFF, CABRASER, HEIMANN
& BERNSTEIN, LLP
12 Kelly Dermody (SBN: 171716)
Daniel Hutchinson (SBN: 239458)
13 Embarcadero Center West
275 Battery Street, 30th Floor
14 San Francisco, CA 94111-3339
Telephone: (415) 956-1000
15 Facsimile: (415) 956-1008
kdermody@lchb.com
16

17 Attorneys for Plaintiffs and Certified Classes

18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

20 SHIRLEY "RAE" ELLIS, et al.,

21

Plaintiffs,

22

v.

23 COSTCO WHOLESALE CORPORATION

24

Defendant.

25

26

27

) Case No. C04-3341 EMC

)

) Assigned to: Hon. Edward M. Chen

)

) [PROPOSED] ORDER GRANTING

) MOTION FOR (1) PRELIMINARY

) APPROVAL OF CLASS ACTION

) SETTLEMENT; (2) APPROVAL OF

) CLASS NOTICE AND NOTICE PLAN;

) AND (3) SETTING OF SCHEDULE

) FOR FINAL APPROVAL

)

) Hearing Date: February 6, 2014

) Hearing Time: 1:30 PM

) Courtroom:

5 (17th Floor)

28
[PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL Case No. C04-3341 EMC

CCaassee33:0:044--ccvv--0033334411--EEMMCC DDooccuummeennt7t78709 FFilieledd0022/1/120/1/144 PPaaggee22ooff641

1

Having reviewed Plaintiffs’ Motion for (1) Preliminary Approval of Class Action

2 Settlement, (2) Approval of Class Action Notice Plan, and (3) Setting of Schedule for Final

3 Approval; the Memorandum of Points and Authorities in support thereof; the Declarations of

4 Jocelyn D. Larkin, Shirley “Rae” Ellis, Elaine Sasaki, and Leah Horstman; the proposed

5 Settlement Agreement and Amended Settlement Agreement; the proposed Notice and Amended

6 Notice; the parties’ Stipulation Regarding Amended Settlement Agreement; the parties’ Joint

7 Supplemental Brief in Response to January 22, 2014 Order and Regarding Contingent

8 Distribution of Excess Funds; Plaintiffs’ Supplemental Application for Service Awards to Class

9 Representatives; and the arguments of counsel, along with the files and records of this case, the

10 Court now FINDS, CONCLUDES, and ORDERS as follows:

11

12

PRELIMINARY APPROVAL OF SETTLEMENT

13

The Court has reviewed the terms of the proposed Amended Settlement Agreement and

14 the parties’ Stipulation Regarding Amended Settlement Agreement (together, the “Amended

15 Settlement Agreement”), attached as Exhibit 1, including specifically the programmatic relief

16 and monetary relief provisions. The Court has also reviewed the Motion papers and the

17 declaration of Jocelyn D. Larkin, which describe Class Counsel’s legal and factual investigation,

18 and the settlement process. Based on review of those papers, and the Court’s familiarity with

19 this case, the Court concludes that the settlement and Settlement Agreement are the result of

20 extensive, arms’ length negotiations between the parties after Class Counsel investigated the

21 claims and became familiar with the strengths and weaknesses of Plaintiffs’ case. The Court

22 finds that the settlement process was non-collusive. Based on the Court’s review of the papers

23 submitted in support of preliminary approval, and the Court’s familiarity with the issues in the

24 case, the Court concludes that the proposed Settlement Agreement has no obvious defects and is

25 within the range of possible settlement approval such that notice to the Class is appropriate.

26

It is therefore ORDERED:

27

That the Amended Settlement Agreement and the settlement it embodies are hereby

28 PRELIMINARILY APPROVED. Final approval and entry of the Amended Settlement

1

[PROPOSED] ORDER GRANTING MOTION FOR

PRELIMINARY APPROVAL

Case No. C04-3341 EMC

CCaassee33:0:044--ccvv--0033334411--EEMMCC DDooccuummeennt7t78709 FFilieledd0022/1/120/1/144 PPaaggee33ooff641

1 Agreement is subject to the hearing of any objections of members of the classes to the proposed

2 Agreement.

3

APPROVAL OF THE FORM AND MANNER OF DISTRIBUTING NOTICE

4

Plaintiffs have also submitted for this Court’s approval a proposed form of Class Notice,

5 which the Court has carefully reviewed, and the parties have amended pursuant to the Court’s

6 Order of January 22, 2014 and the Court’s suggestion at the February 6, 2014 hearing. The

7 Court finds and concludes as follows:

8

1. The proposed Notice allows class members a full and fair opportunity to consider

9 the proposed Amended Settlement Agreement, fees and costs application, and proposed service

10 payments. The proposed plan for distributing the Notice, which is attached to the proposed

11 Amended Settlement Agreement, is a reasonable method to inform class members of the terms of

12 the settlement, the application for attorneys’ fees and costs, and proposed service payments, and

13 of class members’ opportunity to comment on, or object to, these motions. Under the proposed

14 settlement agreement, a respected claims administrator will mail a notice packet to class

15 members by First Class U.S. Mail. The administrator will take reasonable steps to determine the

16 most recent address of each class member.

17

2. The Notice fairly, plainly, accurately, and reasonably informs Class Members of,

18 among other things: (1) the nature of the action; (2) the identities of class counsel; (3) the terms

19 and provisions of the proposed settlement; (4) the relief to which the members of each class will

20 be entitled, including detailed summaries of the programmatic relief and claims process; (5) the

21 process by which class members may make a claim for monetary relief if the settlement is

22 approved; (6) how administrative costs, attorneys’ fees, and potential service payments will be

23 handled; (7) the procedures and deadlines for submitting objections, and/or requests for

24 exclusion; and (8) the date, time, and place of the final approval hearing.

25

3. The Court FINDS and CONCLUDES that the proposed plan for distributing the

26 Notice satisfies the notice requirements of Rule 23, and satisfies all other legal and due process

27 requirements.

28

4. Accordingly, it is therefore ORDERED:

2

[PROPOSED] ORDER GRANTING MOTION FOR

PRELIMINARY APPROVAL

Case No. C04-3341 EMC

CCaassee33:0:044--ccvv--0033334411--EEMMCC DDooccuummeennt7t78709 FFilieledd0022/1/120/1/144 PPaaggee44ooff641

1

a. The form of the Notice is approved.

2

b. The manner of distributing Notice is approved.

3

c. The Notice shall be distributed as set forth in the proposed Settlement

4 Agreement within 14 days of the date of this Order.

5

PROCEDURES FOR FINAL SETTLEMENT APPROVAL

6

1. Fairness Hearing

7

The Court will hold a hearing to determine whether to grant final approval of the

8 Settlement Agreement, to hear the application for attorneys’ fees and costs, and to hear the

9 motion for service payments to the Class Representatives (the “Fairness Hearing”) on May 22,

10 2014 at 1:30 PM.

11

2. Deadline for Objections and Exclusions

12

Any objection to the Settlement, application for attorneys’ fees and costs, or proposed

13 service payments must be postmarked no later than 60 days from the date that the Claims

14 Administrator finishes the first mailing of the Notice to the Class Members. Class Counsel will

15 record all objections and comments with the Court prior to the Fairness Hearing.

16

3. Deadline for Filing Motion for Final Settlement Approval

17

No later than 35 days before the Fairness Hearing, Plaintiffs shall file a motion for final

18 approval of the settlement.

19

4. Deadline for Briefs Responding to Objections

20

On or before one week before the Fairness Hearing, the Parties may file briefs responding

UNITED S
UNITED S ALIFORNIA
ALIFORNIA

OURT OURT NORTH
NORTH

21 22

to any filed objections to the Settlement motion for service payments.

Agreement,

apTpAlTicEatSioDn fIoSrTaRttoIrCnTeyCs’

fees

and

costs,

or

23

IT IS SO ORDERED.
24

APPROVED

25 Dated: 2/12/14 26 27 28

TATES DISTRICT C APPROVED
Judge Edward M. Chen ERN DISTRICT OF C

EDWARD M. CHEN United StatJeusdDgeisEtrdiwctaJrdudMge.

Chen

3

ERN[PDROIPSOTSERD]IOCRDTEROGFRACNTING MOTION FOR

PRELIMINARY APPROVAL

Case No. C04-3341 EMC

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EXHIBIT 1

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1 COUNSEL LISTED ON NEXT PAGE

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 SHIRLEY "RAE" ELLIS, et al.,

12

Plaintiffs,

13

v.

14 COSTCO WHOLESALE CORPORATION

15

Defendant.

16

) Case No. C04 3341 EMC ) ) AMENDED CLASS ACTION ) SETTLEMENT AGREEMENT ) ) ) ) ) )

17

18

19

20

21

22

23

24

25

26

27

28

AMENDED CLASS ACTION SETTLEMENT AGREEMENT

CCaassee33:0:044-c-cvv-0-033334411-E-EMMCC DDooccuummeennt7t77890-1 FFileiledd0022/1/120/1/144 PPaaggee73oof f6517

1 THE IMPACT FUND Jocelyn D. Larkin (SBN 110817)
2 Robert Schug (SBN 249640) 125 University Avenue, Suite 102
3 Berkeley, CA 94710 Telephone: (510) 845-3473
4 Facsimile: (510) 845-3654 jlarkin@impactfund.org
5 LEWIS, FEINBERG, LEE,
6 RENAKER & JACKSON, P.C. Bill Lann Lee (SBN 108452)
7 Lindsay Nako (SBN 239090) 476 9th Street
8 Oakland, CA 94607 Telephone: (510) 839-6824
9 Facsimile: (510) 839-7839 blee@lewisfeinberg.com
10 LIEFF, CABRASER, HEIMANN
11 & BERNSTEIN, LLP Kelly Dermody (SBN 171716)
12 Daniel Hutchinson (SBN 239458) Embarcadero Center West
13 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
14 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
15 kdermody@lchb.com
16 DAVIS, COWELL & BOWE, LLP Steve Stemerman (SBN 067690)
17 Elizabeth A. Lawrence (SBN 111781) 595 Market Street, #1400
18 San Francisco, CA 94105 Telephone: (415) 597-7200
19 Facsimile: (415) 597-7201 eal@dcbsf.com
20 ALTSHULER BERZON LLP
21 James M. Finberg (SBN 114850) 177 Post Street, Suite 300
22 San Francisco, CA 94108 Telephone: (415) 421-7151
23 Facsimile: (415) 362-8064 jfinberg@altshulerberzon.com
24 Attorneys for Plaintiffs and Certified Classes
25
26
27
28

SEYFARTH SHAW LLP Kenwood C. Youmans (SBN 68258) David D. Kadue (SBN 113578) 2029 Century Park East, Suite 3500 Los Angeles, California 90067-2901 Telephone: (310) 201-5211 Facsimile: (310) 201-5219 dkadue@seyfarth.com
SEYFARTH SHAW LLP Gerald L. Maatman (admitted pro hac vice) Annette Tyman (admitted pro hac vice) 131 South Dearborn Street Chicago, Illinois 60603 Telephone: (312) 460-5965 Facsimile: (312) 460-7965 gmaatman@seyfarth.com
SEYFARTH SHAW LLP Thomas J. Wybenga (admitted pro hac vice) c/o Costco Wholesale Corporation 999 Lake Drive Issaquah, WA 98027-5367 Telephone: (425) 313-6794 Facsimile: (425) 313-6922 twybenga@seyfarth.com
SEYFARTH SHAW LLP David B. Ross (admitted pro hac vice) 620 8th Avenue 32nd Floor New York, New York 10018 (212) 218-5500 dross@seyfarth.com
Attorneys for Defendant Costco Wholesale Corporation

AMENDED CLASS ACTION SETTLEMENT AGREEMENT

1 1. 2 2. 3 3. 4 4. 5 5. 6 6. 7 7. 8 8. 9 9. 10 10. 11 11. 12 12. 13 13. 14 14. 15 15. 16 17 18 19 20 21 22 23 24 25 26 27 28

CCaassee33:0:044-c-cvv-0-033334411-E-EMMCC DDooccuummeennt7t77890-1 FFileiledd0022/1/120/1/144 PPaaggee84oof f6517 Table of Contents Page
Background and Recitals .................................................................................................... 1 Definitions........................................................................................................................... 2 Settlement Fund .................................................................................................................. 6 Programmatic Terms........................................................................................................... 7 Monetary Claims Process ................................................................................................. 12 Release of Claims by Class Members............................................................................... 21 Class Administration......................................................................................................... 21 Procedure for Court Approval and Class Notice .............................................................. 23 Costco’s Right to Rescind................................................................................................. 24 Relief for the Named Plaintiffs ......................................................................................... 24 Attorneys’ Fees and Costs ................................................................................................ 24 Publicity ............................................................................................................................ 25 Compliance Procedure ...................................................................................................... 25 Retention of Jurisdiction ................................................................................................... 27 Miscellaneous Provisions.................................................................................................. 27

i AMENDED CLASS ACTION SETTLEMENT AGREEMENT

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1 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Background and Recitals

1.1 This Class Action Settlement Agreement—between (i) Costco Wholesale Corporation and (ii) Class Representatives Rae Ellis, Leah Horstman, and Elaine Sasaki—is intended to settle, subject to Court approval, the above-captioned class action, Ellis v. Costco Wholesale Corp., Civ. No. C-04-3341 EMC (N.D. Cal.), through two principal means:

1.1.1 implementation of certain programmatic terms, described in Section 4, and

1.1.2 implementation of a claims process to address monetary claims, described in Section 5.

1.2 The Parties have entered into this Class Action Settlement Agreement with reference to the following facts.

1.2.1

This action was filed in the United States District Court for the Northern District of California, in August 2004. The Fourth Amended Complaint asserts claims on behalf of two classes of employees, alleging that Costco has maintained a promotion system that discriminated against women in making promotions to Assistant General Manager and General Manager in U.S. warehouses.

1.2.2 Costco has answered the complaint, denying its material allegations while presenting various defenses. Costco disputes all claims alleged and does not by this Agreement admit any liability or wrongdoing whatsoever.

1.2.3 The United States District Court Judge, the Honorable Edward Chen, issued an order on September 25, 2012, certifying the following two classes:

1.2.3.1

Injunctive Relief Class: “All women who are currently employed or who will be employed at any Costco warehouse in the U.S. who have been or will be subject to Costco’s system for promotion to Assistant General Manager or General Manager.”

1.2.3.2

Monetary Relief Class: “All women who have been employed at any Costco warehouse store in the U.S. since January 3, 2002 who have been subject to Costco's system for promotion to Assistant General Manager or General Manager positions.”

1.2.4 The Parties have engaged in substantial discovery, including dozens of deposition sessions and production of hundreds of thousands of pages of documents.

1.2.5

The Parties jointly retained a neutral mediator, Mark S. Rudy, and engaged in multiple in-person and telephone mediation sessions over several months. Mr. Rudy has extensive experience in mediating complex employment discrimination and class action cases. The Parties submitted to the Court in camera on October 14, 2013, a memorandum of understanding setting forth the principal terms that were a product of that

AMENDED CLASS ACTION SETTLEMENT AGREEMENT

CCaassee33::0044--ccvv--0033334411--EEMMCC DDooccuummeenntt777890-1 FiFleilde0d20/21/21/01/414 PaPgaeg1e06 ooff 6517

negotiation. This Class Action Settlement Agreement supersedes that

1

memorandum.

2

1.3 No court has made any finding of liability.

3 2. Definitions

4

The following terms in this Class Action Settlement Agreement, including any Exhibits

and Notices, shall have the meanings assigned to them below. 5

2.1 “Action” 6

“Action” refers to Ellis v. Costco Wholesale Corp., Civ. No. C-04-3341 EMC (N.D.

7

Cal.).

8

2.2 “Administrative Costs”

9

“Administrative Costs” means the fees and costs incurred for activities traditionally

undertaken by a class administrator, including the mailing, tracing and re-mailing of the

10

Notice of Class Settlement; the receiving and reporting of Opt-Outs and Objections; the

receiving and reporting of Claim-related Forms; the calculating of Claim Awards; and tax

11

reporting and payment of required tax withholding out of settlement proceeds.

12

2.3 “AGM” and “GM”

13

“GM” refers to a General Manager, also known as a Warehouse Manager, of a Costco

warehouse in the United States; “AGM” refers to an Assistant General Manager, also

14

known as an Assistant Manager, of a Costco warehouse in the United States.

15

2.4 “Award”

16

“Award” refers to an arbitral award issued pursuant to Section 5, to the effect that a

Claimant either has or has not been discriminated against because of her gender in a

17

promotion to AGM or GM.

18

2.5 “Award Amount”

19

“Award Amount” refers to the amount of the economic damages to which a Claimant is

provisionally entitled as the result of winning an Award. An Award Amount is subject to

20

potential upward or downward adjustment as described in Sections 5.12 and 5.13.

21

2.6 “Claim”

22

“Claim” refers to a Claim perfected pursuant to Section 5.

23

2.7 “Claimant”

24

“Claimant” refers to a Settlement Class Member who has timely elected to participate in

the Monetary Claims Process described in Section 5. 25

2.8 “Claim Form” 26

“Claim Form” refers to the form by which a Settlement Class Member initiates a Claim

27

in the Monetary Claims Process described in Section 5.

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2 AMENDED CLASS ACTION SETTLEMENT

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2.9 “Claim Form Submission Deadline” 1

“Claim Form Submission Deadline” refers to the deadline (sixty (60) days after the date

2

of Final Approval) by which a Claim must be submitted to the Class Administrator.

3

2.10 “Claim Settlement”

4

“Claim Settlement” refers to money an individual Claimant has been promised to resolve

a Claim initiated under Section 5. 5

2.11 “Class” and “Class Member” 6

“Class” means the Monetary Relief Class (as referred to in Section 1.2.3.2): “All women

7

who have been employed at any Costco warehouse store in the U.S. since January 3,

2002 who have been subject to Costco's system for promotion to Assistant General

8

Manager or General Manager positions,” minus those who opted out in response to the

Initial Class Notice. The Parties agree that these are the individuals who, at any time

9

since January 3, 2002, have held, in a U.S. warehouse, either an AGM position or a

Senior Staff position. These individuals will be identified through use of the Lawson job

10

codes in Costco’s databases (job code 2001 for the AGM position, and job codes 2002-

2005, 2027, 3002-3005, and 3027 for the various Senior Staff positions). 11

2.12 “Class Administrator” 12

“Class Administrator” refers to Settlement Services, Inc., a subsidiary of Garden City

13

Group.

14

2.13 “Class Counsel”

15

“Class Counsel” refers to the following firms and organizations: Impact Fund; Lieff,

Cabraser, Heimann & Bernstein, LLP; Lewis, Feinberg, Lee, Renaker & Jackson, P.C.;

16

Davis, Cowell & Bowe, LLP; Altshuler Berzon LLP.

17

2.14 “Class Period”

18

“Class Period“ refers to the time from January 3, 2002, to the date of Preliminary

Approval. 19

2.15 “Class Representatives” or “Named Plaintiffs” 20

The terms “Class Representatives” and “Named Plaintiffs” refers to the three Plaintiffs

21

acting in their capacity as class representatives.

22

2.16 “Court”

23

“Court” refers to the United States District Court for the Northern District of California.

24

2.17 “Defendant” or “Costco”

25

The terms “Defendant” and “Costco” both refer to the Defendant, Costco Wholesale

Corporation. 26

27

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2.18 “Effective Date” 1

The “Effective Date” of this Agreement shall mean the first day following the last of the

2

following:

3

2.18.1 If no objections to the Settlement Agreement are pending as of the Final

Approval, then the date of the Court’s Final Approval of this Settlement

4

Agreement.

5

2.18.2 If objections are pending as of the Final Approval, but no appeal or other

judicial review eventuates, then thirty (30) days following the Final

6

Approval.

7

2.18.3 If an appeal is filed and Final Approval is affirmed, then the date on which

no further judicial appellate review is possible. 8

2.19 “Gross Settlement Fund” 9

The “Gross Settlement Fund” is the $8,000,000 fund described in Section 3. 10

2.20 “Final Approval” 11

“Final Approval” means the entry of a Court order granting final approval of this

12

Agreement, following a fairness hearing.

13

2.21 “Good Faith”

14

The duty of good faith requires a party to be active and constructive in maintaining a

productive relationship, to be responsive and communicative, to engage in thoughtful and

15

measured evaluation of proposals with an open mind, taking Costco’s business needs and

the terms of this Agreement into account, and to reach accord absent a genuine reason not

16

to do so. Good faith does not require parties to set aside their own interests, or to come to

an agreement. 17

2.22 “GM” and “AGM” 18

“GM” refers to a General Manager, also known as a Warehouse Manager, of a Costco

19

warehouse in the United States. “AGM” refers to an Assistant General Manager, also

known as an Assistant Manager, of a Costco warehouse in the United States. 20

2.23 “Implementation Date” 21

The “Implementation Date” is the date on which Costco, under Section 4, implements

22

any selection criteria and assessment tools, initiates its AGM posting program, or

activates its Registration of Interest program, whichever is later. 23

2.24 “Independent Consultant” 24

The Independent Consultant will be DCI Consulting Group. 25

2.25 “Initial Class Notice” 26

The term “Initial Class Notice” refers to the Court-approved notice that went to

27

approximately 1,258 individuals in December 2012.

28

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2.26 “Monetary Claims Process” 1

“Monetary Claims Process” includes the adjudication of Claims submitted under Section

2

5, and concludes with the award that an arbitrator makes on the last pending Claim.

3

2.27 “Net Settlement Fund”

4

The “Net Settlement Fund” is the Gross Settlement Fund minus any Administrative

Costs, and minus any Service Payments awarded to the Named Plaintiffs by the Court

5

under Section 10.4.

6

2.28 “Notice of Class Action Settlement”

7

The “Notice of Class Action Settlement” (copied as Exhibit 1) is the notice, approved by

the Court, that the Class Members will be sent within ten (10) days of the Preliminary

8

Approval of the Class Action Settlement Agreement.

9

2.29 “Notice Packet”

10

The “Notice Packet” consists of the Notice of Class Action Settlement and the Opt Out

Form, and will be mailed to each Class Member who has not already opted out. 11

2.30 “Objection Deadline” 12

“Objection Deadline” is the date by which a Class Member must submit an objection to

13

the proposed Settlement. The Objection Deadline is 60 days after the Class Administrator

mails the Notice of Class Action Settlement. 14

2.31 “Opt Out Form” 15

The “Opt Out Form” is the form, copied as Exhibit 2, that a Class Member must complete

16

to exclude herself from the Settlement Class.

17

2.32 “Opt Outs”

18

An “Opt Out” is a person who has validly requested exclusion from the Class in response

to the Initial Class Notice or the Notice of Class Action Settlement identifying the

19

opportunity to opt out.

20

2.33 “Opt Out Deadline”

21

“Opt Out Deadline” is the date by which a Class Member must act to exercise the right to

opt out of the Settlement Class. The Opt Out Deadline is 60 days after the Class

22

Administrator mails the Notice of Class Action Settlement.

23

2.34 “The Parties”

24

The term “the Parties” refers collectively to the Plaintiffs and Costco.

25

2.35 “Plaintiffs” or “Named Plaintiffs”

26

The terms “Plaintiffs” or “Named Plaintiffs” means the three named Plaintiffs: Rae Ellis,

Leah Horstman, Elaine Sasaki. 27

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
3. 18 19 20 21 22 23 24 25 26 27 28

2.36 “Preliminary Approval”
“Preliminary Approval” means the entry of a Court order granting preliminary approval of this Agreement, reflecting the Court’s conclusion that the terms of this Agreement appear sufficiently fair to the Class to warrant issuance of Notice of Class Action Settlement, giving Class Members an opportunity to object or opt out, and providing for a fairness hearing to consider Final Approval.
2.37 “RSUs”
“RSUs” means restricted stock units.
2.38 “Senior Staff Manager” or “Senior Staff”
The terms “Senior Staff Manager” and “Senior Staff” refer to U.S. warehouse managers holding the title of Front End Manager, Administration Manager, Receiving Manager, or Merchandise Manager.
2.39 “Service Payments”
“Service Payments” means the award by the Court, if any, to the Class Representatives for service provided to the Class in the course of the litigation as provided in Section 10.4.
2.40 “Settlement Class”
The “Settlement Class” means all Settlement Class Members as defined herein.
2.41 “Settlement Class Member”
A “Settlement Class Member” is any Class Member who has not timely opted out from the Class pursuant to either the Initial Class Notice or to the Notice of Class Action Settlement.
Settlement Fund
3.1 Costco will pay a gross settlement of $8 million on a non-reversionary basis, which will include any interest awarded as part of a Claimant’s economic damages. This sum of money shall be known as the Gross Settlement Fund.
3.2 Costco will make an initial deposit, sufficient to cover anticipated costs of administration and any Service Payments approved by the Court, within ten (10) days of Final Approval of the Class Action Settlement Agreement. Costco will, unless otherwise agreed by the Parties, deposit the balance of the $8 million upon the entry of the final award made during the Monetary Claims Process.
3.3 The Net Settlement Fund will be the Gross Settlement Fund minus Administrative Costs, and minus any Service Payments awarded to the named plaintiffs by the Court under Section 10.4.
3.4 Described below is the process for determining which class members, if any, are entitled to share in the Net Settlement Fund, and in what amounts, if any.
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3.5 Any funds not awarded to Class Members who prevail in the Monetary Claims Process will be used as follows: (i) the first $100,000, or fraction thereof, will be used to pay the Independent Consultant to the extent that Independent Consultant fees exceed $100,000; (ii) any remainder will be donated to Network of Executive Women, Consumer Products/Retail (“NEW”), (www.newoline.org), to fund scholarships or otherwise assist women pursuing leadership roles in retail management. Within thirty (30) days of any determination that there are funds available to distribute to NEW, the Parties will confer as to whether the funds should go entirely to scholarship recipients or to other NEW-related recipients as well. Those other recipients may include female Costco employees or programs whose interests reasonably approximate those of the Class Members, and conform to the legal principles guiding cy pres distributions.

3.6 The Net Settlement Fund shall not be used to pay attorneys’ fees and costs, or fees and costs for arbitrators, or the Named Plaintiffs’ claims brought in court pursuant to Section 10.2.

Programmatic Terms

4.1 Independent Consultant

4.1.1

Selection – The Parties have selected DCI Consulting Group as the Independent Consultant who will have the responsibilities listed below. Dr. Michael Aamodt and Dr. Eric Dunleavy of that firm, Industrial Organizational Psychologists (IOPs) who have experience conducting professional job analyses and developing selection criteria for management-level positions, will lead and supervise this engagement and make assignments to other DCI staff as they require.

4.1.2 Responsibilities – The Independent Consultant will work with Costco to conduct job analyses, to evaluate promotion processes, and to develop selection criteria and assessment tools as further described below.

4.1.3 Communication with the Independent Consultant – Costco, its counsel, and Class Counsel will be free to communicate with the Independent Consultant concerning any aspect of the work conducted in connection with this Agreement.

4.1.4 Compensation of the Independent Consultant – Costco will pay all fees and expenses of the Independent Consultant, except to the extent provided in Section 3.5.

4.2 Job Analyses and Selection Criteria

4.2.1

Job Analyses – The Independent Consultant will work with Costco’s subject matter experts to prepare Job Analyses for the positions of Assistant General Manager (“AGM”) and General Manager (“GM”) in U.S. warehouses. The Job Analyses will identify the knowledge, skills, abilities, experiences, and competencies associated with AGMs and GMs whom Costco deems successful in those positions. The Parties anticipate that preparation of Job Analyses will entail structured interviews of Costco’s subject-matter experts, review of relevant Costco personnel practices, and observations of a sample of AGMs and GMs at work.

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4.2.2 The Independent Consultant will provide the completed Job Analyses to

1

the Parties. Absent a good-faith concern, Costco will accept the Job

Analyses. If Class Counsel dispute Costco’s good faith in raising a

2

concern, then the Parties and the Independent Consultant will confer in an

effort to resolve the issues that prompted Costco’s stated concerns. 3

4.2.3 Costco will make available to its U.S. warehouse management staff

4

revised job descriptions reflecting any accepted Job Analyses.

5

4.2.4 Development of Proposed Selection Criteria – The Independent

Consultant will use the Job Analyses that Costco has accepted to develop

6

proposed Selection Criteria and tools for their assessment, which may

include modifications to the AGM selection process, if necessary, and

7

suggestions for Costco to consider in connection with the GM selection

process. 8

4.2.5 The proposed Selection Criteria will be developed based on the

9

Independent Consultant’s professional judgment. To the extent that Costco

adopts Selection Criteria, they will be in writing, non-discriminatory, and

10

job-related.

11

4.2.6 To the extent that the proposed Selection Criteria take into account

performance evaluations, “Ready Now” ratings, or other similar evaluative

12

tools, then these tools will also incorporate non-discriminatory, job-related

selection criteria. 13

4.2.7 If the proposed Selection Criteria take into account an employee’s

14

merchandising experience, then women will have the same opportunity for

merchandising training and experience that are available to similarly

15

situated male employees. Costco may use performance evaluation forms to

document merchandising opportunities offered to, accepted by, and

16

declined by employees.

17

4.2.8 If the proposed Selection Criteria take into account an employee’s

willingness to relocate, then Costco will apply any relocation criteria in a

18

non-discriminatory, job-related manner.

19

4.2.9 AGM Selection Criteria and Assessment Tools – Costco will, absent a

good-faith concern, implement any Selection Criteria and Assessment

20

Tools that the Independent Consultant proposes for promotions into AGM

positions. Costco will incorporate implemented proposals, where and as

21

appropriate, into the job descriptions, performance evaluations, and

promotion process for AGM. 22

4.2.10 Consideration of Proposed GM Selection Criteria and Assessment Tools –

23

Costco will, in good faith, consider for implementation any proposed

Selection Criteria and Assessment Tools for GM promotions. This

24

Agreement requires Costco to consider suggested changes in the GM

selection process, in good faith, but does not require Costco to make any

25

such changes.

26

4.2.11 Counsel for the Parties will jointly meet with the Independent Consultant

to resolve any good-faith concern Costco may have about proposed

27

Selection Criteria or Assessment Tools.

28

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4.2.12 The Independent Consultant, in cooperation with Costco, may pilot or

1

otherwise test the adopted Selection Criteria and Assessment Tools for the

AGM position. 2

4.2.13 Post-Implementation Assessment – The Independent Consultant will work

3

with Costco to evaluate job-relatedness of the Selection Criteria and

Assessment Tools and decide whether to propose modifications to them.

4

Costco, in exercising good faith, may accept or reject a proposal. If Class

Counsel dispute Costco’s good faith in rejecting a proposal, then counsel

5

for the Parties will confer with the Independent Consultant in an effort to

resolve any issue that prompted Costco’s stated concern. 6

4.2.14 Costco may, particularly in light of the significance and complexity of the

7

jobs at issue, and the need to fill them efficiently, exercise a right to deny,

in good faith, proposals or work product presented by the Independent

8

Consultant, subject to the dispute resolution process described in Section

13.9, 9

4.2.15 Class Counsel may initiate the dispute resolution procedure (in Section

10

13.9) if, after conferring with Costco and the Independent Consultant,

Class Counsel contend that Costco’s rejection of a proposal is not in good

11

faith.

12

4.3 Posting and Registration of Interest

13

4.3.1 Posting of AGM Positions in U.S. warehouses

14

4.3.1.1 Absent compelling business reasons for using a shorter posting

period, Costco will post each AGM opening it intends to fill

15

with a promotion no fewer than ten days before filling it. Each

job posting will contain the location of the opening, job

16

description, selection criteria, and the designated minimum

qualifications for that opening. 17

4.3.1.2 An open AGM position that Costco intends to fill with a

18

promotion will be posted within a district or other objectively

defined area, to be broad enough to encompass at least ten

19

warehouses or a 50-mile radius. The posting will be available

to be viewed by all U.S. warehouse Senior Staff managers (i.e.,

20

each Front End Manager, Administration Manager, Receiving

Manager, and Merchandise Manager) within that area, whether

21

or not they meet the minimum qualifications for the position.

22

4.3.1.3 Costco will provide a mechanism for an employee who meets

the posted minimum qualifications to apply for the posted

23

AGM position. Costco will audit U.S. warehouses for

compliance with the job posting policy, including the retention

24

of documents recording the names of qualified candidates who

apply for each AGM opening. 25

4.3.1.4 Each qualified employee who exercised the right to apply for a

26

posted AGM opening in a particular warehouse will be

informed of the identity of any individual who is selected for

27

that opening.

28

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4.3.1.5 Costco will, within 90 days after adopting AGM Selection

1

Criteria and Assessment Tools, implement the AGM posting

system. 2

4.3.2 Registration of Interest for GM Positions: 3

4.3.2.1 Costco will implement a system that allows AGMs to directly

4

register interest in GM positions that may become available at

any U.S. warehouse location. An AGM can register this

5

interest twice per year: (1) in connection with each annual

performance review, and (2) six months thereafter. Registration

6

will be accomplished by the AGM providing his or her

personal email address in that connection. Each registration of

7

interest will expire after one year unless renewed. Costco will

act in good faith to put the registration system into electronic

8

form by the Implementation Date.

9

4.3.2.2 Costco, in filling a GM position by promoting an AGM, will

review the list of AGMs deemed qualified for promotion who

10

have registered interest in that position. Costco will notify

registered AGMs of the identity of individuals selected for

11

those positions. Notice of these identities will not be required if

Costco already is publicizing those individuals to all current

12

AGMs through other means.

13

4.3.3 Merchandising Class

14

4.3.3.1 Within one year of the Effective Date, Costco will offer a

merchandising training class for Senior Staff managers who

15

have not obtained merchandising experience in their current or

prior positions. 16

4.3.3.2 Completion of training is not intended as a substitute for

17

experience in a merchandise manager position, or as a

mandatory requisite for further promotions. Rather, it is

18

intended to be an introduction to merchandising and will be

used by Costco to encourage employees to pursue the

19

merchandising management experience relevant to promotion

to AGM and GM. 20

4.4 Promotion Process 21

4.4.1 Costco will use any Selection Criteria and Assessment Tools that it has

22

adopted through the procedures described above.

23

4.4.2 Costco ordinarily will conduct personal or telephonic interviews with all

applicants who meet the posted minimum qualifications for an open AGM

24

position.

25

4.4.3 If more than five candidates for an AGM opening meet the minimum

posted qualifications, then Costco may limit the number of interviews to

26

five based upon non-discriminatory criteria. The criteria used to limit the

interview pool will be communicated to eligible applicants who were not

27

interviewed.

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4.4.4 Costco will maintain records of every AGM promotion, including the

1

identities of qualified applicants (those who met posted minimum

qualifications), the identities of the applicants interviewed, the identities of

2

decision-makers, the identities of candidates who received offers, the

identity of the candidate who received the position, and the reason for the

3

selection.

4

4.4.5 Costco will maintain information about Selection Criteria and Assessment

Tools on its intranet, accessible to warehouse management employees. 5

4.5 Training 6

4.5.1 Within a reasonable time of implementation, Costco will train managers

7

responsible for AGM and GM selections regarding the AGM job posting

system and the GM registration of interest system. 8

4.5.2 Within a reasonable time of implementation, Costco will train managers

9

responsible for AGM and GM selections regarding any Selection Criteria

and Assessment Tools that it has adopted through the procedures

10

described above.

11

4.6 Communication On Posting, Registration of Interest, Selection Criteria, and

Assessment Tools 12

4.6.1 Within a reasonable time of implementation, Costco will inform U.S.

13

Senior Staff managers and AGMs about the AGM job posting system and

the GM registration of interest system. 14

4.6.2 Within a reasonable time of implementation, Costco will inform U.S.

15

Senior Staff managers and AGMs about any Selection Criteria and

Assessment Tools that it has adopted through the procedures described

16

above.

17

4.7 Recordkeeping

18

4.7.1 Costco will maintain records necessary to monitor its compliance with the

terms of this Agreement. 19

4.8 General Non-Discrimination Provisions 20

4.8.1 As stated in Costco’s policies, sex discrimination with respect to

21

promotion into AGM or GM positions is prohibited.

22

4.9 Costco’s Retained Discretion

23

4.9.1 Except insofar as the terms of this Agreement may specify otherwise,

nothing in this Agreement shall limit Costco’s exercise of its managerial

24

discretion to select, transfer, promote, compensate, discipline, or dismiss

any employee, including any Class Member, in accordance with law. 25

4.10 Duration 26

27

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1 2
5. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

4.10.1 The programmatic terms described in this Section 4 will take effect on the Effective Date and will remain in effect for two years after the Implementation Date.

Monetary Claims Process

5.1 Arbitrators

5.1.1 Qualifications – The arbitrators will be experienced in employment discrimination disputes. The arbitrators selected must have a reputation such that they are generally acceptable according to a consensus of the plaintiffs’ bar and the defense bar.

5.1.2 Selection – The Parties will attempt to agree upon persons to act as arbitrators for all Claims. If the Parties are unable to agree, then the Parties will submit separate proposals to Mark Rudy, and he will appoint the arbitrators.

5.1.3

Replacement – In the event that an arbitrator becomes unavailable to fulfill her or his duties, the Parties will meet and confer in an attempt to agree on a replacement. If the Parties are unable to agree, then the Parties will submit separate proposals to Mark Rudy, and he will appoint the arbitrator.

5.1.4

Number of Arbitrators – Once the type and number of Claims is determined, the Parties will attempt to agree upon the number of persons to act as arbitrators for all Claims. No arbitrator will be selected to hear more than five Claims, absent agreement of the Parties. If the Parties cannot agree, then they will submit separate proposals to Mark Rudy, and he will determine the number.

5.1.5

Removal – Any arbitrator may be removed by agreement of the Parties, or by petition from either party to Mark Rudy. He will grant the petition only upon a showing of good cause. If the arbitrator is removed, then the Parties will confer on a replacement. If the Parties cannot agree, then they will submit separate proposals to Mark Rudy, who will appoint the arbitrator.

5.1.6 Unavailability of Mark Rudy – If Mark Rudy is unavailable to perform any of the tasks noted above or the process set forth in Section 5.5.7, then Hunter Hughes will serve instead.

5.1.7

Compensation for Arbitrators – Costco will pay arbitrators’ fees and costs except the Parties will pay whatever fees are incurred by Mark Rudy or Hunter Hughes to resolve the selection of arbitrators. An arbitrator’s fee will be a flat fee in the amount of $10,000 for a Claim by Written Submission and $25,000 for a Claim by Formal Arbitration.

5.1.8 Limitation of Authority – The arbitrator shall decide only whether the Claimant was discriminated against, on the basis of her gender, with respect to a promotion to AGM or GM. The arbitrator has no authority to issue injunctive relief or determine the amount of damages.

5.2 Making Claims

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5.2.1 The Monetary Claims Process will include two Claim formats: Claim by

1

Written Submission and Claim by Formal Arbitration. A Class Member

can elect to file her Claim in one format only. Claims must be submitted

2

by the Claim Form Submission Deadline. A Claimant may win one Claim

only, and if she has multiple Claims she can assert them in the order she

3

chooses.

4

5.2.2 Choice of law – The law to apply will be Title VII of the Civil Rights Act

of 1964, as amended. 5

5.2.3 By the Effective Date, the Parties will agree on a list of the AGM and GM

6

promotions within the Class Period, including the warehouse number,

location, the date of promotion, the position, and the person selected. 7

5.2.4 As to any Claim, Costco will, 30 days before any deadline applying to the

8

Parties’ submission of papers or deposition, whichever is earlier,

pertaining to the particular promotion in question, produce personnel files

9

for the Claimant and the person selected, and any document explaining the

reasons for that promotion. 10

5.2.5 Process for Filing a Claim 11

5.2.5.1 Any Class Member intending to file a Claim must file the

12

Claim by the Claim Form Submission Deadline.

13

5.2.5.2 The Claim, to be valid, must identify, for each promotion

challenged, the warehouse, the position (AGM or GM), the

14

approximate date of the promotion, and the name of the man

promoted. 15

5.2.5.3 The Claim Form shall identify which promotions the Claimant

16

challenges, in the order of the Claimant’s preference.

17

5.2.5.4 If multiple Claimants challenge the same promotion, then the

priorities established in Section 5.4 will apply. 18

5.3 Number of Challenges – Each Class Member may challenge at least one

19

promotion. A Class Member may make a second challenge provided that she,

immediately before the date of the challenged promotion, had at least five years of

20

continuous experience in the relevant feeder position or comparable Costco

position or big box retail management position. A Class Member may make a

21

third challenge if she was, immediately before the date of the challenged

promotion, continuously employed in a feeder position or comparable Costco

22

position or big box retail management position for ten years at any time since

April 1999. 23

5.4 Overlapping Challenges – A Claimant’s number of months of experience in the

24

relevant feeder position breaks any tie, to avoid multiple challenges to the same

promotion. Nonetheless, if the result of this tie-breaking provision is that a

25

Claimant is left with no promotion to challenge, then she is entitled to challenge

one other promotion not otherwise challenged. 26

5.5 Remedies Available in Monetary Claims Process 27

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5.5.1 The remedies available to Claimants will be limited to economic damages

1

only, resulting from a denial of promotion found to be the result of

unlawful gender discrimination. Otherwise stated, the remedies available

2

do not include compensatory damages, punitive damages, or instatement.

3

5.5.2 Economic damages will be measured by a formula addressing the

difference in salary, bonus, and stock-grant value, plus interest. Claimants

4

shall not be entitled to awards of RSUs or shares of stock, as distinct from

the cash value of such units or shares. 5

5.5.3 Unless the Parties agree otherwise under Section 5.5.7, for the purpose of

6

computing the value of RSUs or stock, the rules and practices applicable

to grants to GMs and AGMs during the class period should be followed,

7

including without limitation rules and practices relating to grants, vesting,

tax withholding, and forfeiture. 8

5.5.4 To determine interest, the Class Administrator will apply non-compounded

9

annual simple interest at a rate of 3% for the years 2002-2006 and 1% for

the years 2007 forward. 10

5.5.5 Damages end as of the date of the arbitrator’s award for a current

11

employee, and as of the date of termination of employment for a former

employee. 12

5.5.6 Evidence of damages will be resolved through stipulations without

13

requiring expert foundation. Costco and Claimant’s counsel will confer to

stipulate, soon after a Claim is submitted, to the amount of the Award that

14

should issue if the arbitrator finds for the Claimant. That stipulation will

include, for tax purposes, an allocation of the amounts between wages and

15

interest.

16

5.5.7 By the Effective Date, the Parties will agree on an economic damages

formula to achieve the purposes of this Section 5.5. If the Parties cannot

17

agree, then they will mediate the matter with Mark Rudy. If they still

cannot agree, then Mark Rudy will resolve the matter by choosing to

18

select either the final formula proposed by Plaintiffs or the final formula

proposed by Costco. 19

5.6 Claimant’s Right to Legal Representation for Monetary Claims Process 20

5.6.1 In making a Monetary Claim, a Claimant may choose to be represented by

21

Class Counsel, who will seek no compensation from her for either legal

fees or expenses, whether she wins or loses her claim. 22

5.6.2 A Claimant is entitled to be represented by counsel other than Class

23

Counsel, under whatever terms she may negotiate with that counsel. But

Costco would not be liable for fees and costs for that lawyer’s work,

24

except as provided in either Section 5.10.6 or Section 5.11.12.

25

5.6.3 If a Claimant chooses to be represented by counsel other than Class

Counsel, that counsel will be given access to the same information and

26

documents obtained by Class Counsel through discovery.

27

28

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5.6.4 Class Counsel may decline representation of a Claimant where accepting

1

representation would be inconsistent with Class Counsel’s professional

responsibilities. 2

3

4

5.7 Burdens of Proof in Monetary Claims Process 5

5.7.1 The Claimant has the burden to prove by a preponderance of the evidence

6

that she was interested in and qualified for each promotion that she

challenges. For promotions into AGM, a Claimant may make a showing

7

that she was denied, because of her gender, the opportunity to rotate into

the merchandise manager position, which prevented her from being

8

qualified at the time of the promotion.

9

5.7.2 If the Claimant meets her burden, then Costco will have the burden to

prove by a preponderance of the evidence that gender was not a

10

motivating factor in her non-selection for the promotion in question.

11

5.8 Page limitations

12

5.8.1 For briefs and position statements subject to page limitations, the

arbitrator will enforce the page limitations (as to margins, font sizes, line

13

spacing, etc.) by referring to the local rules of the United States District

Court for the Northern District of California. 14

5.9 Context Information Briefs 15

5.9.1 The Parties will submit to the arbitrators simultaneous Context

16

Information Briefs (up to 30 pages) to describe the relevant policies and

practices and any claimed context of the decision-making that either side

17

wishes to advance. Each side will have 30 days to submit a 15-page

response brief. The Parties may attach supporting materials, including

18

documents, statistical analyses, deposition testimony, and expert testimony

and reports. 19

5.9.2 Each Party has another 30 days to submit a reply brief, of ten (10) pages,

20

limited to the scope of any data or documents not previously produced in

the litigation that was the subject of the other Party’s response brief. 21

5.9.3 The Parties shall negotiate in good faith on deadlines for the filing of

22

Context Information Briefs.

23

5.9.4 Each arbitrator has the discretion to decide what weight, if any, the

Context Information deserves. The same Context Information Briefs and

24

accompanying materials will be submitted for each Claim proceeding.

25

5.10 Claim by Written Submission

26

5.10.1 Claims by Written Submission may be confidential or non-confidential.

The confidential option is available only to current employees. 27

28

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5.10.2 Save for Section 5.9, documentary evidence will be limited to the

1

Claimant’s personnel file, the contested male’s personnel file, and other

documents that the arbitrator finds relevant to the Claimant’s or the

2

selectee’s promotability to the contested position.

3

5.10.3 Each Claimant may present a position statement and supporting materials.

Statements of fact by the Claimant will be made under penalty of perjury.

4

Costco may submit a statement in opposition, and supporting materials.

Statements of fact by Costco will be made under penalty of perjury. The

5

Claimant may file a reply limited to the scope of the opposition and

Costco may submit a sur-reply limited to the scope of the reply. Initial

6

position statements shall not exceed twenty-five (25) pages and further

statements shall not exceed fifteen (15) pages. 7

5.10.4 Non-Confidential Claim by Written Submission 8

5.10.4.1 A Claimant prevailing on an AGM promotion Claim may

9

receive a sum no greater than $150,000.

10

5.10.4.2 A Claimant prevailing on a GM promotion may receive a sum

no greater than $300,000. 11

5.10.5 Confidential Claim by Written Submission – Same as Non-Confidential

12

Document Claims except:

13

5.10.5.1 If a Claimant decides to proceed on a confidential basis for an

AGM Claim, then her current AGM and current GM will not

14

be advised of the class member’s participation in the process.

15

5.10.5.2 If a Claimant decides to proceed on a confidential basis for a

GM Claim, then her current GM and current ROM will not be

16

advised of the Claimant’s participation in the process.

17

5.10.5.3 The arbitrator shall lift confidentiality if Costco demonstrates

that (a) the Claimant has alleged a specific incident as to a

18

relevant AGM, GM, or ROM to support her Claim, or (b) the

relevant AGM, GM, or ROM is the Costco employee best

19

qualified to explain the reasons for the promotion at issue.

20

5.10.5.3.1 If the arbitrator lifts confidentiality because of an

allegation as to a specific incident, then the Claimant

21

will have the choice of (i) converting her confidential

Claim to a non-confidential Claim, (ii) deciding to

22

challenge another promotion without making the

allegation, or (iii) proceeding with the current,

23

confidential Claim without making the allegation.

24

5.10.5.3.2 If the arbitrator lifts confidentiality because the relevant

AGM, GM, or ROM is the Costco employee best

25

qualified to explain the reasons for the promotion at

issue, then the Claimant will have the choice of (i)

26

converting her confidential Claim to a non-confidential

Claim, or (ii) deciding to challenge another promotion. 27

28

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5.10.5.4 If a Claimant, in addressing the need to show her qualification

1

for an AGM promotion, alleges (as per 5.7.1) that she was

denied the opportunity to rotate into the position of

2

merchandise manager because of her gender, then Costco may

put the Claimant to the choice of (i) converting her confidential

3

Claim to a non-confidential Claim, (ii) deciding to challenge

another promotion without making the allegation, or (iii)

4

proceeding with the current, confidential Claim without

making the allegation. 5

5.10.5.5 For Claims submitted on a confidential basis, a class member

6

challenging an AGM promotion may receive a sum no greater

than $25,000. 7

5.10.5.6 For Claims submitted on a confidential basis, a class member

8

challenging a GM promotion may receive a sum no greater

than $50,000. 9

5.10.6 Fees and Costs for Prevailing Claims by Written Submission – Class

10

members who prevail on Claims by Written Submission are entitled to

seek, from Judge Edward Chen at the conclusion of the Monetary Claims

11

Process, an award of attorneys’ fees not to exceed $10,000 costs not to

exceed $1,000 per successful Claimant, to be paid by Costco. The total

12

attorney’s fee award for Claims by Written Submission will not exceed

$750,000. Class Counsel and Costco may informally resolve the fee

13

award without the necessity of a fee motion.

14

5.10.7 The arbitrator will, within thirty (30) days of receiving the Parties’ written

submissions, issue a written decision not to exceed three pages. The

15

decision of the arbitrator is final and not subject to appeal.

16

5.11 Claim by Formal Arbitration

17

5.11.1 The arbitration hearing will be limited to two consecutive days of not

more than 16 hours, and 8 hours for each side. 18

5.11.1.1 The arbitrator will keep track of the time that each side

19

consumes, through presenting argument or interrogating or

otherwise. 20

5.11.1.2 All witnesses shall be duly sworn and subject to cross-

21

examination.

22

5.11.2 The Parties may file ten-page pre-arbitration briefs, beyond the standard

Context Information brief, with supporting materials. At a reasonable time

23

before the hearing, the parties must exchange lists of individuals they

expect to call as witnesses, saving only rebuttal witnesses. Save for

24

Section 5.9, documentary evidence will be limited to the class member’s

personnel file, the contested male’s personnel file, and other documents

25

that the arbitrator finds relevant to the Claimant’s or the selectee’s

promotability to the contested position. 26

5.11.3 Each side can take one deposition, not to exceed four hours. Costco can

27

take a deposition of the Claimant and the Claimant can take a deposition

28

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of any individual Costco identifies as the most knowledgeable about the

1

reasons for the promotion decision in question.

2

5.11.4 Unless otherwise agreed by the Parties, venue of the arbitration will be at a

location closest to the site of the challenged promotion in each of the

3

following cities: Seattle, San Francisco, Los Angeles, Chicago, Houston,

Atlanta, Washington D.C., New York, and Boston. However, unless

4

otherwise agreed by the Parties, Claimants who bring Claims implicating

different geographical regions will have their Claims heard by different

5

arbitrators in the respective locations.

6

5.11.5 The arbitrator will have authority to issue trial subpoenas, but not

discovery subpoenas, except a deposition subpoena per Section 5.11.3

7

upon a showing of good cause. The subpoena power will be limited, with

respect to current Costco employees, to (1) the person selected for the

8

challenged promotion, (2) the decision-maker(s) identified by Costco or

established through discovery, (3) other persons that the Parties agree have

9

material information concerning the promotion at issue, and (4) upon a

showing of good cause, one additional current Costco employee whom the

10

Claimant demonstrates has knowledge that bears directly on her

promotability as to the promotion at issue. For purposes of determining

11

good cause, it is the intent of the Parties not to unduly limit relevant

testimony but rather to ensure that Costco managers and executives are not

12

subpoenaed for any unnecessary or abusive purpose.

13

5.11.6 The Federal Rules of Evidence will govern, except the arbitrator has the

discretion to admit reliable hearsay and waive foundational requirements.

14

The parties will endeavor to resolve all issues concerning the admissibility

and authenticity of documents, other than rebuttal documents, in advance

15

of the arbitration.

16

5.11.7 The arbitration hearing will proceed without being transcribed. There will

be no post-hearing brief. Each side can make a closing argument, within

17

the time limits set out in Section 5.11.1.

18

5.11.8 The arbitrator will issue a written decision not to exceed three pages

within ten (10) business days of the arbitration. 19

5.11.9 The decision of the arbitrator is final and not subject to appeal. 20

5.11.10 A Claimant prevailing on an AGM promotion Claim by Formal

21

Arbitration may receive a sum no greater than $250,000.

22

5.11.11 A Claimant prevailing on a General Manager promotion Claim by

Formal Arbitration may receive a sum no greater than $600,000. 23

5.11.12 Attorneys’ Fees and Costs For Prevailing Claims in Formal Arbitration –

24

Claimants who prevail on Claims by Formal Arbitration are entitled to

seek an award of reasonable attorneys’ fees and costs, to be paid by

25

Costco, from Judge Edward Chen at the conclusion of the Monetary

Claims Process. Class Counsel and Costco may informally resolve the fee

26

award without the necessity of a fee motion.

27

28

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5.12 Aggregate Award Amounts And Settlements Exceeding Net Settlement Fund –

1

To the extent that the total Award Amounts or Settlements exceed the Net

Settlement Fund, they will be reduced pro rata. 2

5.13 Total Award Amounts And Claim Settlements Amounting to Less than Net

3

Settlement Fund

4

5.13.1 Claim Settlements. Costco and any Claimant may, in lieu of awaiting an

Award, agree to settle a Claim. The amount of a Claim Settlement is not

5

subject to an enhancement as per Section 5.13.2 or otherwise. A Claim

Settlement will be paid from the Net Settlement Fund, and is subject to a

6

potential pro rata reduction per Section 5.12. This provision does not

apply to any settlement of a claim brought pursuant to Section 10.2. 7

5.13.2 Enhancement of Awards Up to Second Cap – If Award Amounts in the

8

aggregate do not reach the amount of the Net Settlement Fund, then

individual Award Amounts will be increased as follows. Each Claimant

9

with economic damages greater than the applicable individual cap will

receive the full amount of those damages up to the first caps, plus an

10

additional amount of her economic damages, up to the following Second

Caps: for confidential written Claims, $12,500 AGM and $25,000 GM; for

11

non-confidential written Claims, $100,000 AGM and $200,000 GM; and

for formal arbitration, $175,000 AGM and $300,000 GM. If, as a result of

12

crediting these additional amounts the aggregate of Award Amounts

would exceed the Net Settlement Fund, then the additional Award

13

Amounts would be reduced pro rata to ensure that the Award Amounts in

the aggregate equal the net settlement fund. 14

5.13.3 Distribution of Excess After Application of Second Cap – See Section 3.5. 15

5.14 Confidentiality of Monetary Claims Process Outcomes 16

5.14.1 All outcomes in the Monetary Claims Process will be confidential, and

17

may not, absent court order, be used in any subsequent proceeding.

18

5.14.2 Should the Court require either party to submit information about the

Monetary Claims Process outcomes, the Parties shall jointly seek the

19

Court’s permission to file the information under seal.

20

5.14.3 Confidentiality of Awards

21

5.14.3.1 The “Notice of Class Action Settlement” will inform Class

Members that the Awards and Award Amounts are

22

confidential.

23

5.14.3.2 Upon filing a Claim, a Claimant will execute a specific

confidentiality agreement. Witnesses presented by either side

24

will execute a similar agreement before or during the

arbitration proceeding. The Claimant will execute a further

25

confidentiality agreement if the Claim is resolved in her favor.

26

5.14.3.3 The confidentiality agreements will advise the Claimant or the

witness of the legal consequences resulting from any breach of 27

28

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confidentiality as to whether the arbitrator ruled for Costco or

1

for the Claimant, as described below.

2

5.14.3.4 Costco may not sue for a breach of confidentiality unless it

receives, from the arbitrator who decided the Claimant’s

3

Claim, a certificate that Costco has good cause to believe that

the Claimant has breached the confidentiality agreement. 4

5.14.3.5 If, after receiving the certification from the arbitrator, Costco

5

proves in a court in the Claimant’s home jurisdiction by clear

and convincing evidence that the Claimant breached the

6

confidentiality agreement, then she will be liable for liquidated

damages in the amount of 20% of the Award Amount. If

7

Costco does not prevail, then Costco will pay the Claimant’s

reasonable attorneys’ fees and costs. 8

5.14.3.6 The Claimant may not sue for a breach of confidentiality unless

9

she receives, from the arbitrator who decided her Claim, a

certificate that she has good cause to believe that Costco has

10

breached the confidentiality agreement.

11

5.14.3.7 If, after receiving the certification from the arbitrator, the

Claimant proves in a court in the Claimant’s home jurisdiction

12

by clear and convincing evidence that Costco breached the

confidentiality agreement, then Costco will be liable for

13

liquidated damages in the amount of 20% of the Award

Amount or, in the event that the Award was in favor of Costco,

14

$25,000. If the Claimant does not prevail, then the Claimant

will pay Costco’s reasonable attorneys’ fees and costs. 15

5.14.3.8 Nothing in this provision restricts any Party from seeking

16

appropriate injunctive relief for breach of confidentiality.

17

5.14.3.9 Nothing in this provision prohibits a Party to disclose Awards

and Award Amounts (a) to persons for whom such information

18

is necessary to effectuate the provisions of the Agreement (and

who shall be advised of its confidentiality and agree to this

19

provision), (b) to those employees and outside professional

advisors (e.g., accountants, lawyers, tax advisors) who need to

20

be aware of this Agreement or its terms in the ordinary course

of business to perform their duties and to properly advise the

21

parties, (c) to the extent such disclosure is required for

enforcement of this Agreement, (d) as required by federal or

22

state law or other applicable laws or rules, including, for

example, compliance with legally authorized discovery

23

procedures or the notice requirements of securities laws, (e) to

Costco’s corporate affiliates, and (f) the Claimant’s immediate

24

family members (who shall be advised of confidentiality and

agree to this provision). 25

5.15 Statute of Limitations 26

Any Claim challenging a promotion to AGM or GM is time-barred if the promotion was

27

filled prior to January 3, 2002.

28

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6. 1 2 3 4 5 6 7 8 9 10 11
7. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Release of Claims by Class Members
6.1 The settlement, upon the Effective Date, will release all Claims for systemic injunctive relief for the Claims alleged in the case on behalf of the Injunctive Relief Class.
6.2 Class Members who submit Claims through the Monetary Claims Process shall, as of the date of their Claims, thereby release any Claim for failure to promote to AGM or GM not pursued through that process.
6.3 Each Member of the Monetary Relief Class who does not Opt Out and who does not submit a timely Claim will, by operation of the law and this Agreement, release, as of the Claim Form Submission Deadline, any claim that Costco, on the basis of her gender, denied her promotion to AGM or GM at any time since January 3, 2002.
6.4 Upon Final Approval, a judgment shall be entered dismissing, with prejudice, all claims of Class Members for denial of promotion to AGM or GM.
6.5 The Court will retain jurisdiction to enforce the Parties’ rights and obligations under this Agreement. See Section 14.
Class Administration
7.1 The Class Administrator will discharge all duties customarily required of a class administrator, including, without limitation, mailing notices and calculating any required payments.
7.2 Within ten (10) days of the Effective Date, the Class Administrator will establish a Qualified Settlement Fund for the administration of any payments to be made under this Agreement. The Class Administrator will consult with the Parties regarding the methods for funding and distributing any payments.
7.3 The expenses of the Class Administrator shall be borne by the Gross Settlement Fund.
7.4 Within twenty-one (21) days of the complete funding of the Gross Settlement Fund (see Section 3.2), the Class Administrator will calculate the amount owing, if any, to each Claimant. The Claims Administrator will provide Class Counsel and Costco with a proposed distribution schedule, which each side will approve or propose any corrections to within five (5) business days. The Claims Administrator will then generate and mail checks to Claimants. Check distribution shall be accomplished by a first-class mailing to the last known address of record.
7.5 All checks shall expire one hundred-twenty (120) calendar days after initial issuance by the Class Administrator.
7.6 Class Notice Claims and Opt-Out Processes
7.6.1 The Class Administrator shall administer the notice program.
7.6.2 Costco will, within seven (7) days of Preliminary Approval, give the Class Administrator the names, social security numbers, and last-known postal
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addresses of all Class Members. Class Counsel will provide any updated

1

addresses to the Class Administrator. The Class Administrator may take

reasonable steps to determine the most recent address of each Class

2

Member.

3

7.6.3 The Class Administrator will mail the Notice Packet to Class Members by

post-marked First Class U.S. Mail within seven (7) calendar days of

4

receiving Costco’s list of the names and addresses.

5

7.6.4 The Notice Packet will include the Notice of Class Action Settlement and

the Opt-Out Form. The Parties will, prior to Final Approval, agree to the

6

content of Claims Form, using the same resolution process as provided in

Section 5.5.7. 7

7.6.5 The Notice of Class Action Settlement shall be substantially in the form

8

attached hereto as Exhibit 1.

9

7.6.6 Opt Outs. The Opt-Out Form shall be substantially in the form copied as

Exhibit 2. Class Members will have sixty (60) days from the date of the

10

mailing of the Notice Packet in which to postmark their notice of opting

out (the “Opt-Out Deadline”). Any Class Member who does not timely

11

request exclusion shall be bound by the terms of this Agreement.

12

7.6.6.1 To the extent permitted by rules of professional responsibility,

Class Counsel shall not solicit representation of Opt Outs in

13

order to sue Costco.

14

7.6.6.2 The Parties will not encourage or attempt to influence any

Class Member to opt out or to object to the settlement. Nothing

15

in this provision will limit the ability of Class Counsel to

provide legal advice to Class Members, upon their request,

16

about their options under the Settlement Agreement and the

Notice of Class Action Settlement. 17

7.6.6.3 Nothing herein inhibits in any way the ability of Class Counsel

18

or other counsel to represent Settlement Class Members who

wish to prosecute Claims under Section 5. 19

7.6.7 Objectors. Class Members shall have sixty (60) days from the date of

20

mailing of the Notice Packet in which to postmark their notice of objection

to the Settlement. Any Class Member who does not timely serve an

21

objection by the Objection Deadline shall be deemed to have waived any

objection thereto. Any Class Member filing a written Objection has the

22

right to appear at the Fairness Hearing in person or through her own legal

representative. She or her representative must notify the Class

23

Administrator of her intention to appear and present her objection at least

ten (10) days prior to the Fairness Hearing. 24

7.6.8 To provide the best notice practicable, any Notice Packet returned to the

25

Class Administrator as non-delivered shall be sent by post-marked First

Class U.S. Mail to any forwarding address provided on the returned letter,

26

if any. If no forwarding address is provided for a Notice Packet that is

returned as non-deliverable, within two (2) days of receipt of any

27

undeliverable Notice Packet, the Class Administrator will search to locate

28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
8. 25 26 27 28

a current address and will then mail the Notice Packet to the current address. If no current address is located, then the Notice Packet for that individual will be deemed undeliverable.
7.6.9 The entire period for objecting to the Settlement and timely submitting Opt-Out forms shall not exceed sixty (60) days from the date that the Class Administrator finishes the first mailing of the Notice Packet to the Class.
7.6.10 The Class Administrator shall record postmark dates for the original mailing of the Notice Packet, the mailing of later Notice Packets following a reliable computer search method, and the Class Members who did not receive a Notice Packet for want of a valid address.
7.6.11 Costco is responsible, at its own expense, to give notices to the relevant government agencies as required by the Class Action Fairness Act (CAFA). Costco will cause the CAFA notice and exhibits to be mailed no later than 10 days after the Court has issued the Preliminary Approval Order.
7.6.12 Upon completion of administration, the Class Administrator shall provide written certification of such to counsel for the Parties.
7.6.13 Minimization of Administrative Costs. The Parties agree to make all reasonable efforts to minimize the costs of administering this Agreement.
7.6.14 All mailings to Class Members shall be by First Class U.S. Mail, with a postmark date on the envelope for each individual mailing.
7.7 Tax Treatment and Reporting Of Award Amount Payments
7.7.1 The Class Administrator shall pay to appropriate taxing authorities any applicable taxes that must be withheld for the Claimants, including employee FICA taxes.
7.7.2 The Class Administrator will ensure that payment of wages, subject to withholdings required by law, will be reported on IRS Form W2.
7.7.3 The Class Administrator will ensure that payments of Service Payments and interest, if any, will be reported appropriately on IRS Form 1099 or otherwise.
7.7.4 Settlement Class Members will be responsible for any individual taxes due on payments to them pursuant to this Agreement
7.7.5 Costco will be responsible for paying the employer’s share of all applicable payroll taxes.
Procedure for Court Approval and Class Notice
8.1 Once this Agreement is fully executed, the Parties shall take all necessary steps to obtain preliminary approval. The Parties will confer on the form of the proposed order for preliminary approval. The Parties shall cooperate in Plaintiffs’ filing of a
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1 2 3 4 5 6 7
9. 8 9 10 11 12
10. 13 14 15 16 17 18 19 20 21 22 23
11. 24 25 26 27 28

motion for preliminary approval as soon as practicable, in any event no later than December 17, 2013.
8.2 The proposed form of Preliminary Approval Order shall set a date for a hearing (“Fairness Hearing”) of May 22, 2014, at which the Court will determine whether the proposed Settlement should be finally approved as fair, reasonable, adequate, and in the best interests of the Settlement Class Members; and whether a final judgment should be entered dismissing all Claims in the Action with prejudice, subject to Section 14.
8.3 If the Court does not approve this Agreement, then the Agreement will terminate and be of no effect, unless the Parties agree to modify this Agreement in a manner necessary to obtain Court approval.
Costco’s Right to Rescind
9.1 If ten or more Class Members opt out, or if the United States Equal Employment Opportunity Commission initiates any enforcement proceeding alleging gender discrimination in connection with promotions that are the subject of this Action, then Costco, at its option, may rescind the Settlement Agreement.
9.2 Costco may exercise its right to rescind at any time up to ten (10) days before the date of Final Approval.
Relief for the Named Plaintiffs
10.1 The named plaintiffs (Ellis, Horstman, and Sasaki), may pursue rights in addition to those available to class members generally, by choosing to proceed under either 10.2 or 10.3 below.
10.2 A named plaintiff may choose to adjudicate her Claims asserted against Costco in this litigation by trial before Judge Edward Chen. Any back pay, damages, interest or attorneys’ fees awarded on these Claims will not be taken out of the Gross Settlement Fund. All Parties reserve whatever rights to jury trial they have.
10.3 A named plaintiff may, in lieu of proceeding under Section 10.2 and seeking all the Claims asserted in the complaint, choose to submit only her promotion Claims through the Monetary Claims Process described herein. Any damages awarded on these Claims will be taken out of the Gross Settlement Fund.
10.4 In addition, the named plaintiffs may ask the district court to award to each of them a service payment of up to $10,000 to be paid from the Gross Settlement Fund. This service payment is not damages for discrimination, which Costco denies, but rather compensation for services that the named plaintiffs have rendered to the class.
Attorneys’ Fees and Costs
11.1 Costco has no obligation under this Agreement to pay for the attorneys’ fees or costs of Plaintiffs or Class Members, except as expressly set forth in this Agreement, including Sections 5.10.6, 5.11.12, 10.2, or 11.2
11.2 Plaintiffs may, in connection with their motion for Preliminary Approval, apply for an award of reasonable attorneys’ fees and costs for the litigation up to the
24 AMENDED CLASS ACTION SETTLEMENT

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1 2 3 4 5 6 7 8 9 10
12. 11 12 13 14 15 16 17
13. 18 19 20 21 22 23 24 25 26 27 28

date of final approval of the Class Action Settlement, to be paid by Costco. Plaintiffs may also seek an award of reasonable attorneys’ fees and costs for their anticipated services in monitoring and administrating the settlement, to be paid by Costco. Subject to any other order of the Court regarding timing of the motion, Class Counsel will submit a motion for an award of such fees and costs to the district court in conjunction with the motion for preliminary approval of the settlement.
11.3 No attorneys’ fees or costs to Class Counsel can be awarded without approval of this Class Action Settlement Agreement. But approval of this Class Action Settlement Agreement is not conditioned on the award of attorneys’ fees or costs to Class Counsel. Provisions of the Class Action Settlement Agreement for the award of attorneys’ fees are severable from the remaining provisions.
11.4 Fees awarded pursuant to Section 11.2 shall be paid by Costco to Class Counsel within thirty (30) days of the day on which no timely appeal of the Final Approval is still possible. Fees awarded in an order pursuant to Sections 5.10.6, 5.11.12, or 10.2 shall be paid by Costco to Class Counsel within thirty (30) days of the day on which no timely appeal from that order is still possible.
Publicity
12.1 The Parties and their counsel will not initiate any comments to the media regarding the Agreement and will limit their comments to the media to the following effect: “We can confirm that the parties have submitted a proposed settlement agreement for the court’s approval. Under the terms of their agreement, the parties have agreed not to share any details and to instead refer the media to the court papers on file.”
12.2 Beyond the foregoing, nothing in this Agreement will be construed to limit Class Counsel in exercising whatever rights they may have to comment on the fact of their representation in this case or to refer to public information concerning the litigation.
Compliance Procedure
13.1 The Court will, upon the written request of any Party, appoint, pursuant to Federal Rule of Civil Procedure 53 (“Rule 53”) a Compliance Special Master to provide oversight of the implementation by Costco of the terms in this Agreement.
13.2 Costco will submit, on each of two anniversaries of the Implementation Date, a report to Class Counsel. The report will include status information on the work of the Independent Consultant, and statistical information by gender of applicants for AGM positions, candidates interviewed for AGM positions, and employees selected for AGM and GM positions. In addition, Costco will provide information that it otherwise prepares in the normal course of business on attrition by gender from the AGM and GM positions.
13.3 Within thirty (30) calendar days of the submission of the report, Costco and Class Counsel will confer on whether Costco has exercised good faith in complying with its obligations under the terms of the Settlement Agreement. If the Parties disagree, then Class Counsel will submit to the Compliance Special Master, within fifteen (15) calendar days, a statement of position contending that Costco has failed to act in good faith with respect to complying with its obligations under
25 AMENDED CLASS ACTION SETTLEMENT

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the Settlement Agreement. Costco may, within fifteen (15) days of receiving that

1

statement of position, submit its response to the Compliance Special Master.

2

13.4 Within thirty (30) days of receiving the Parties’ submissions, the Compliance

Special Master will conclude in writing either that Costco has met its obligation to

3

act in good faith under this Agreement, or inform the Parties of any aspect of non-

compliance in that regard. 4

13.5 If Class Counsel fail to demonstrate to the Compliance Special Master that Costco

5

has failed to act in good faith, then no further action is required at that time. Class

Counsel may file objections to the Compliance Special Master’s conclusion as

6

described below.

7

13.6 If Class Counsel demonstrates to the Compliance Special Master that Costco has

failed to act in good faith, then Costco will promptly bring itself into compliance.

8

In the alternative, Costco may file objections to the Compliance Special Master’s

conclusion as described below. 9

13.7 Pursuant to Rule 53, the Parties may file objections to the Compliance Special

10

Master’s recommendation with the Court no later than twenty-one (21) days after

a copy of the Compliance Special Master’s recommendation is served. 11

13.8 The fees and costs of the Compliance Special Master will be paid by Costco. 12

13.9 Dispute Resolution 13

13.9.1 The Parties will work diligently and in good faith to resolve all disputes

14

that may arise during the term of this Agreement concerning the rights,

obligations and duties of the Parties to this Agreement. 15

13.9.2 If the Parties cannot resolve their dispute, then they will mediate the

16

dispute within thirty (30) calendar days. Absent other agreement, Mark

Rudy shall mediate the dispute. Costco will pay the costs of mediation. 17

13.9.3 If mediation is unsuccessful, then the Parties will, within seven (7)

18

calendar days, submit a joint statement to the Compliance Special Master

describing the Parties’ dispute and each Party’s position on how the

19

dispute should be resolved. The Compliance Special Master will then,

within fourteen (14) days of receipt of the Parties’ submission, resolve the

20

dispute in writing. If the Compliance Special Master determines that

Costco has not acted in good faith with regard to Section 4 of this

21

Agreement, then the Compliance Special Master may order Costco to

come into compliance. 22

13.9.4 Pursuant to Rule 53, either party may file comments or objections to the

23

Compliance Special Master’s conclusion with the Court no later than

twenty-one (21) days after a copy of the Compliance Special Master’s

24

conclusion is served.

25

13.9.5 Nothing in this Settlement Agreement authorizes any court or master to

impose any change in Costco’s GM selection process. 26

27

28

26 AMENDED CLASS ACTION SETTLEMENT

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14. 1 2 3 15. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Retention of Jurisdiction
14.1 The Court will retain jurisdiction of this matter after these claims are dismissed to enforce the terms of this Class Action Settlement Agreement.
Miscellaneous Provisions
15.1 No Admissions
This Agreement shall not constitute an admission on behalf of Costco of any form of liability or the accuracy of any allegations against it.
15.2 No Third Party Rights
Nothing in this Agreement creates rights for any person other than the Parties. The right to enforce this Agreement is vested exclusively in the Parties. The Parties will cooperate with each other to resist any efforts by non-parties to enforce this Agreement.
15.3 No Retaliation
Costco agrees it will not retaliate against any Class Member because of participation in this Settlement, or because of receiving any award in connection with this Agreement, or otherwise because of being a Class Member in this Action.
15.4 Advice of Counsel
The Parties agree that this Agreement reflects a good-faith compromise of all Claims raised in this Action, based upon their assessment of the mutual risks and costs of further litigation and the assessments of their respective counsel.
15.5 Extensions of Time
Unless otherwise ordered by the Court, the Parties may jointly agree, in a writing executed by counsel for the Parties, to reasonable extensions of time to carry out any provisions of this Agreement.
15.6 Integration
This Agreement, including all exhibits, constitutes a single, integrated written contract expressing the entire agreement of the Parties relative to the subject matter hereof. No covenants, agreements, representations, or warranties of any kind whatsoever have been made by any Party hereto, except as provided for herein.
15.7 Representative Capacity
Each person executing this Agreement in a representative capacity represents and warrants that he or she is empowered to do so.
15.8 Counterparts
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, even though all Parties do not sign the same counterparts. Copies and facsimile transmission of signatures shall be considered the same as original signatures.
27 AMENDED CLASS ACTION SETTLEMENT

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15.9 Cooperation of Parties 1

The Parties to this Agreement agree to prepare and execute all documents, to seek Court

2

approvals, to defend Court approvals, and to do all things reasonably necessary to

complete the Settlement described in this Agreement and to secure approval of the

3

Settlement, including without limitation, seeking such relief from any stay of proceedings

as may be warranted to secure approval of the Settlement through the trial court. 4

15.10 Notifications 5

15.10.1 All notices to Class Counsel provided for herein shall be sent by

6

electronic mail to Jocelyn Larkin at The Impact Fund, with hard copies by

U.S. mail. 7

15.10.2 All notices to Costco provided for herein shall be sent by electronic mail

8

to Ken Youmans and David Kadue at Seyfarth Shaw LLP, with hard

copies by U.S. mail. 9

15.10.3 Upon the request of any Party, the Parties and the Class Administrator

10

agree to promptly provide each other copies of all objections, requests for

exclusion, or other filings received in response to the Notice Packet. 11

15.10.4 This Agreement may be modified only by a written instrument signed by

12

the Parties’ counsel and approved by the Court.

13

15.11 Time

14

Any calculation of time shall be in accordance with the Federal Rules of Civil Procedure.

15

16 AGREED AND ACCEPTED AS OF DECEMBER 17, 2013, AS AMENDED EFFECTIVE

17 JANUARY 30, 2014.

18 FOR PLAINTIFFS AND THE CERTIFIED CLASSES:
19

20
21 Jocelyn D. Larkin The Impact Fund
22

23 Elaine Sasaki
24 Named Plaintiff
25

26 Shirley “Rae” Ellis
27 Named Plaintiff

28

28 AMENDED CLASS ACTION SETTLEMENT

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1 2 Leah Horstman 3 Named Plaintiff 4 5 FOR DEFENDANT COSTCO WHOLESALE CORPORATION: 6 ____________________________________
Richard J. Olin 7 Senior Vice President and General Counsel 8 ___________________________________
David D. Kadue 9 Seyfarth Shaw LLP 10 16745949v.3 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
29 AMENDED CLASS ACTION SETTLEMENT

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15.9 Cooperation of Parties 1

The Parties to this Agreement agree to prepare and execute all documents, to seek Court

2

approvals, to defend Court approvals, and to do all things reasonably necessary to

complete the Settlement described in this Agreement and to secure approval of the

3

Settlement, including without limitation, seeking such relief from any stay of proceedings

as may be warranted to secure approval of the Settlement through the trial court. 4

15.10 Notifications 5

15.10.1 All notices to Class Counsel provided for herein shall be sent by

6

electronic mail to Jocelyn Larkin at The Impact Fund, with hard copies by

U.S. mail. 7

15.10.2 All notices to Costco provided for herein shall be sent by electronic mail

8

to Ken Youmans and David Kadue at Seyfarth Shaw LLP, with hard

copies by U.S. mail. 9

15.10.3 Upon the request of any Party, the Parties and the Class Administrator

10

agree to promptly provide each other copies of all objections, requests for

exclusion, or other filings received in response to the Notice Packet. 11

15.10.4 This Agreement may be modified only by a written instrument signed by

12

the Parties’ counsel and approved by the Court.

13

15.11 Time

14

Any calculation of time shall be in accordance with the Federal Rules of Civil Procedure.

15

16 AGREED AND ACCEPTED AS OF DECEMBER 17, 2013, AS AMENDED EFFECTIVE

17 JANUARY 30, 2014.

18 FOR PLAINTIFFS AND THE CERTIFIED CLASSES:
19

20
21 Jocelyn D. Larkin The Impact Fund
22

23 Elaine Sasaki
24 Named Plaintiff
25

26 Shirley “Rae” Ellis
27 Named Plaintiff

28

28 AMENDED CLASS ACTION SETTLEMENT

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AGREED AND ACCEPTED AS OF DECEMBER 17,2013 \ \1 I ) II I ( I VI

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FOR PLAINTIFFS AND THE CERTIFIED CLASSES:

/
Jocelyn D. Larkin The Impact Fund

Elaine Sasaki Named P . tiff

Shirl

e" His

Named Plaintiff

Leah Horstman Named Plaintiff
FOR DEFENDANT COSTCO WHOLESALE CORPORATION:
Richard J. Olin Senior Vice President and General Counsel
David D. Kadue Seyfarth Shaw LLP I 16745949v.3

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EXHIBIT 1

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ELLIS V. COSTCO WHOLESALE CORP., NO. 04-3341
If you are a woman and are (or were) employed in a U.S. Costco warehouse as a Senior Staff Manager or Assistant General Manager,
then a proposed class action settlement could affect your rights.
If you take no action, you will be bound by the settlement. Your rights will be impacted.
The federal court authorized this notice.
 Read this notice carefully. This notice is different from the notice that you may have received in December 2012. This notice explains the lawsuit, the settlement, and your legal rights.
 This notice describes a proposed class action settlement that, if approved by the Court, would provide for certain changes in Costco’s system for promotions to Assistant General Manager (“AGM”) and for an assessment of possible changes in Costco’s system for promotions to General Manager (“GM”). (See Section 7)
 The proposed settlement, if approved by the Court, also would create an arbitration claims process in which women may make claims for economic damages resulting from unlawful denial of promotions because of their sex. Unless you win your claim, you will not receive any money. The proposed settlement provides a fund to compensate women who bring successful claims. (See Section 8).
 The court has not decided whether Costco did anything wrong. But your legal rights may be affected, and you have a choice to make now:

YOUR LEGAL RIGHTS AND OPTIONS

DO NOTHING; REMAIN PART OF THE SETTLEMENT

If you are satisfied with the terms of the proposed settlement, then you do not need to do anything now. If the Court approves the settlement, then you will receive a claims notice. You can file a claim seeking money in a claims process if you believe you were unlawfully denied a promotion because of your sex, or you can choose not to file a claim. An arbitrator will decide if your claim has merit.

OPT OUT

If you want to file your own lawsuit against Costco for sex discrimination for denying you an AGM or GM promotion, or if you do not want to be bound by this lawsuit, then you should exclude yourself (“opt-out”) from the settlement.

OBJECT

If you are not satisfied with the terms of the proposed settlement, then you may write about that to the Class Administrator. You may also appear in Court to explain why you don’t like it.

 These rights and options—and the deadlines to exercise them—are explained in this notice.

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Page
WHAT THIS NOTICE CONTAINS
Basic Information - 1 1. Why Did I Get This Notice? ..................................................................................... - 1 2. What Is This Lawsuit About? ................................................................................... - 1 3. What Is a Class Action? ............................................................................................ - 1 4. Why Is There a Settlement? ...................................................................................... - 1 5. How Do I Know If I am Part of the Settlement? ...................................................... - 1 The Proposed Settlement — Essential Terms ........................................................................ - 2 6. What Are the Terms of the Proposed Settlement?....................................................- 2 Program Changes...................................................................................................................... - 2 7. What Changes Will Costco Make to the AGM and GM Promotion
System? ..................................................................................................................... - 2 The Claims Process ................................................................................................................... - 3 -
8. How Does the Claims Process Work? ...................................................................... - 3 9. How Much Will I Get If I Win?................................................................................- 3 10. What Happens If I Lose My Claim? ......................................................................... - 4 11. How Does the Claims Process Differ from Having My Own Case in
Federal Court?...........................................................................................................- 4 12. Do I Need to Decide Now Whether to File a Claim or Which Kind of
Claim to File?............................................................................................................- 4 13. Can I Get Help in Deciding What Kind of Claim to File? Will I Have a
Lawyer in the Claims Process? ................................................................................. - 4 14. Will My Job or Future Promotions Be Affected If I Participate in the
Claims Process? ........................................................................................................ - 5 15. Can I File a Claim If I Have Been Promoted to AGM or GM But I
Believe That I Should Have Been Promoted Sooner? .............................................. - 5 16. If I Win, Then Can The Arbitrator Order Costco to Promote Me?...........................- 5 17. Can I Make a Confidential Claim? ........................................................................... - 5 18. If I Win My Claim, Then When Would I Get My Payment? ................................... - 6 19. If I Win My Claim, Then Will Everyone Know How Much I Got? Or,
If I Lose My Claim, Will Everyone Know that I Lost? ............................................ - 6 20. Under What Circumstances Can My Award Be Increased or
Decreased? ................................................................................................................ - 6 -
i

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21. What Happens If The Total of The Award Amounts Is Less Than $8 Million?.....................................................................................................................- 6 -
22. What Claims Are Released by the Settlement? ........................................................ - 7 Named Plaintiffs........................................................................................................................- 7 -
23. What Can the Three Named Plaintiffs Get Under the Settlement? ......................... - 7 The Lawyers Representing You .............................................................................................. - 7 -
24. Do I have a Lawyer in this Case? ............................................................................. - 7 25. How Will the Lawyers be Paid? ............................................................................... - 7 Opting Out of the Settlement ................................................................................................... - 8 26. Who Should Opt Out of the Class?...........................................................................- 8 27. How Do I Opt Out of the Class? ............................................................................... - 8 Objecting to the Settlement......................................................................................................- 8 28. How Do I Tell the Court That I Don’t Like the Settlement? .................................... - 8 29. What’s the Difference Between Objecting and Opting Out?....................................- 9 The Court’s Fairness Hearing ................................................................................................. - 9 30. When and Where Will the Court Decide Whether to Approve the
Settlement?................................................................................................................- 9 31. Do I Have to Come to the Hearing?.......................................................................... - 9 32. May I Speak at the Hearing?.....................................................................................- 9 If You Do Nothing ..................................................................................................................... - 9 33. What Happens if I Do Nothing at All? ..................................................................... - 9 Getting More Information ..................................................................................................... - 10 34. How Do I Get More Information? .......................................................................... - 10 -
ii

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BASIC INFORMATION
1. Why Did I Get This Notice?
Costco’s records show that you now work for Costco as either a Senior Staff Manager or an AGM in a U.S. warehouse, or have worked in one of those positions at some time on or after January 3, 2002.
This notice advises you of a proposed settlement of this class action lawsuit, and about your options, before the Court decides whether to approve the settlement. If the Court approves the settlement, and after objections and appeals (if any) are resolved, then there will be a claims process and arbitrators will decide who, if anyone, was unlawfully denied an AGM promotion or a GM promotion because of her sex and entitled to compensation.
2. What Is This Lawsuit About?
This lawsuit claims that Costco unlawfully discriminated against female employees based on their sex, by denying them opportunities for promotion to AGM or GM.
Costco denies it did anything wrong and no court has found that Costco did anything wrong. Costco retains its right to defend itself against any claim brought against it.
3. What Is a Class Action?
In a class action, one or more people, called Named Plaintiffs (in this case, Shirley “Rae” Ellis, Leah Horstman, and Elaine Sasaki), bring a lawsuit on behalf of people who a court finds have similar claims. These people, considered members of the same Class, are called Class Members. One court resolves the case for all Class Members, except for those who exclude themselves from the Class.
4. Why Is There a Settlement?
The Court did not decide in favor of Plaintiffs or in favor of Costco. Instead, both sides agreed to a settlement to avoid a court trial, to provide a process to re-evaluate and change, as appropriate, the promotion process, and to create a way to resolve money claims through a relatively quick arbitration process. The Named Plaintiffs and the attorneys appointed to represent the Class think the settlement is best for everyone in the Class.
5. How Do I Know If I am Part of the Settlement?
The class is defined as all current or former female Costco employees employed at any U.S. Costco warehouse at any time on or after January 3, 2002 who have ever been Senior Staff Managers or Assistant General Managers.
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Some women who have already excluded themselves from the lawsuit (called “opting out”) are not Class Members and are not part of the settlement.
If you aren’t sure about your status, then you can contact Class Counsel at 1-866-501-2300 or at the email address below or the Class Administrator at the address identified in Section 28 below.
THE PROPOSED SETTLEMENT — ESSENTIAL TERMS
6. What Are the Terms of the Proposed Settlement?
The settlement provides a process to evaluate and implement program changes and an arbitration process to resolve claims of discriminatory denial of promotions.
Program Changes - Costco will implement job posting for AGM vacancies and will permit AGMs to formally register interest in specific GM positions. Costco will, in good faith, consider changes in its processes for making promotions to AGM and GM.
Claims Process for Money - If you bring a claim and an arbitrator decides that you were denied an AGM or GM promotion because of your sex, then you will receive compensation. The proposed settlement would create an $8 million fund, from which any successful claimants would be paid. (For more description, see Sections 18-22).
PROGRAM CHANGES
7. What Changes Will Costco Make to the AGM and GM Promotion System?
(1) An agreed-upon outside expert will analyze the AGM and GM jobs, evaluate the promotion process for these jobs, and recommend to Costco written selection criteria and tools for the AGM and GM promotion process.
(2) Costco has agreed to post openings for AGM promotions within the geographic area where the opening occurs and candidates who meet the posted qualifications will be allowed to apply for the position.
(3) Costco has agreed to implement a system that will allow AGMs to register an interest in GM positions in specific warehouses. Costco will consult the list of those who have registered an interest in that warehouse when it makes a GM selection. Registering an interest will help ensure that Costco is aware of who is interested in being considered for the promotion.
(4) Costco will offer a merchandising training class for current Senior Staff managers who have not received merchandising experience relevant to promotion to AGM as a way of encouraging acquisition of that experience.
(5) Costco will communicate with and train its managers concerning any program changes.
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(6) Costco will submit reports about these changes for two years after they are made. These changes will apply to both women and men applying for promotions to AGM and GM.
THE CLAIMS PROCESS
8. How Does the Claims Process Work?

You will have two different ways to make a claim if you choose to make one. You can make a written claim (called a Claim by Written Submission) or you can make a claim in person before a neutral arbitrator (called a Claim by Formal Arbitration).
If you are a current employee, then you also may choose to make a written claim confidentially so that your current AGM and GM (if you are a Senior Staff Manager) and your GM and Regional Operating Manager (if you are an AGM), will not know you are making a claim.
Every Claimant can challenge at least one specific promotion that she did not receive. She may challenge up to two additional promotions if she meets certain experience requirements stated in Section 5.3 of the Settlement Agreement.
The arbitrator will be given information about why you believe that you were interested and qualified for promotion to a specific AGM or GM position and why you believe the decision not to promote you to that position was a result of unlawful sex discrimination. Costco, too, may submit information to the arbitrator that Costco believes shows that your sex was not a factor in the decision not to promote you to that position. The arbitrator will decide whether or not you were denied promotion because of your sex.
If you choose, Class Counsel will represent you. If you win your claim, then Class Counsel will be entitled to ask that certain fees and costs be paid by Costco. You may instead hire your own lawyer and, if you win your claim, your lawyer will be entitled to ask that certain fees and costs be paid by Costco.
Whether you win or lose, you will not be charged any fee for participating in the claims process.
9. How Much Will I Get If I Win?

If you win, you will receive your actual losses up to a cap: lost salary, bonus, and the value of restricted stock units plus interest. Under certain circumstances, your award amount may be increased up to a second cap or decreased, which is explained in Section 20.

Type of Claim
Written Written

Denial of Promotion into Which Position AGM GM

Actual Damages Up to First Cap
$150,000 cap $300,000 cap

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Arbitration Arbitration

AGM GM

$250,000 cap $600,000 cap

Lower award amounts apply if you make a confidential claim. (See Section 17.) The settlement does not provide for an award of emotional distress or punitive damages.

10. What Happens If I Lose My Claim?

You will receive no money if the arbitrator finds that your claim is not valid.
11. How Does the Claims Process Differ from Having My Own Case in Federal Court?

In the Claims Process, an arbitrator rather than a judge will decide your claim. Class Counsel will represent you without charge. Claims decided by an arbitrator often are resolved more quickly than claims decided by a judge or jury. Your wage loss is capped, as explained in Sections 9 and 21. You cannot seek emotional distress or punitive damages or an order giving you a promotion. If you choose to make an arbitration claim, there are limits on how long the arbitration lasts, what discovery tools your lawyer can use to get information, and what evidence can be used to support your claim. The number of promotions you may challenge is explained in Section 8. The outcome of the Claims Process is confidential. Neither side can appeal the result.
If you brought your own lawsuit in federal court, then your case would be decided by a jury or a judge. You would have to find a lawyer to represent you. The limits on discovery tools and evidence that apply in the Claims Process would not apply in the same way in court. You would be entitled to seek emotional distress and punitive damages (up to a cap of $300,000) in addition to your wage loss and an order promoting you. The number of promotions you could challenge would not be subject to any limits and would depend on the evidence. The court proceedings and the outcome would be public. Either side could appeal the result.

12. Do I Need to Decide Now Whether to File a Claim or Which Kind of Claim to File?
No. Right now, the only decision you need to make is whether to opt out of the settlement or to object to the settlement. Both of those options are explained below.
13. Can I Get Help in Deciding What Kind of Claim to File? Will I Have a Lawyer in the Claims Process?

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If the Court approves the settlement, then you will be able to consult with Class Counsel and decide if you will file a claim, and what kind of claim to file. There is information available about the past promotions, and who was selected, that will assist you in making a decision. There is no charge to you for consulting with the lawyers to decide whether to file a claim, or for preparing your claim. If you do decide to file a claim, Class Counsel will represent you through all stages of the Claims Process at no charge to you. You also can choose to hire your own lawyer.
14. Will My Job or Future Promotions Be Affected If I Participate in the Claims
Process?

No. Costco supports the right of Class Members who believe they have been subject to sex discrimination in promotion to have their claims determined by a neutral arbitrator in the Claims Process. Retaliation is illegal. If you believe that you are being subjected to any kind of retaliation in connection with the case or the Claims Process, then you can notify Class Counsel, notify your own independent counsel, or use Costco’s Open Door process (if you are a current Costco employee).
15. Can I File a Claim If I Have Been Promoted to AGM or GM But I Believe That I
Should Have Been Promoted Sooner?

Yes. If you win your claim, your economic losses would be based on the time period before you received the promotion.
16. If I Win, Then Can The Arbitrator Order Costco to Promote Me?

No. The Claims Process provides for only money damages. By staying in the case and not opting out, you give up your right to have a court order that you be promoted to AGM or GM.
17. Can I Make a Confidential Claim?

If you are a current Costco employee, then you can choose to make a written claim on a confidential basis so that the manager directly above you, and his or her direct manager, will not know about your claim. If you choose to make a confidential claim, then the maximum that you can receive if you are successful is:

Type of Claim
Written/Confidential Written/Confidential

Denial of Promotion into Which Position AGM GM

Actual Damages Up to Cap
$25,000 cap $50,000 cap

Under certain circumstances, where Costco takes the position that it would be unfair for the claim to be heard on a confidential basis, Costco may ask the arbitrator to remove the confidentiality. If the arbitrator removes the confidentiality, then you will have the right to change your claim to non-confidential or to withdraw it.

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18. If I Win My Claim, Then When Would I Get My Payment?
Payments will be made at the completion of the Claims Process, which may be more than a year after the Court approves the settlement.

19. If I Win My Claim, Then Will Everyone Know How Much I Got? Or, If I Lose My Claim, Will Everyone Know that I Lost?

No. All outcomes in the claims process (win or lose) will be kept confidential. To participate in the claims process, you will sign an agreement to keep the outcome confidential (with a few exceptions like your spouse or tax advisor). The agreement will explain the legal and financial consequences if you do not keep the outcome confidential.
Costco is bound by the same duty to keep the outcomes confidential.
20. Under What Circumstances Can My Award Be Increased or Decreased?

If the total amount of successful claims results in award amounts of less than $8 million, then the award amounts will be increased as follows. Any Claimant whose actual award amount exceeded the first cap (see Section 9) will get the rest of her award amount, subject to a second cap.

Type of Claim
Written Confidential Written Confidential
Written Written Arbitration Arbitration

Denial of Promotion into Which Position
AGM GM AGM GM AGM GM

Actual Damages Over First Cap Up to Additional Second Cap $12,500 $25,000 $100,000 cap $200,000 cap $175,000 cap $300,000 cap

If the total amount of successful claims results in award amounts exceeding $8 million, then each successful claimant’s award amount will be reduced pro rata.

21. What Happens If The Total of The Award Amounts Is Less Than $8 Million?

If the total of the award amounts does not reach $8 million, then all of the money not allocated to award amounts and certain settlement-related expenses will be donated to Network for Executive Women, Consumer Products/Retail to fund scholarships or otherwise assist women pursuing leadership roles in retail management.

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22. What Claims Are Released by the Settlement?
All class members who do not opt out of the settlement are giving up (also called “releasing”) their rights to sue Costco for money damages for gender discrimination in connection with a failure to promote them to AGM or GM since January 3, 2002. Class members give up these rights whether or not they choose to make a claim in the Claims Process. Class members who are current employees also give up their individual rights to seek certain injunctive relief, i.e., a court order that requires an employer to change its promotion practices.
NAMED PLAINTIFFS
23. What Can the Three Named Plaintiffs Get Under the Settlement?
The three Named Plaintiffs may make a promotion claim in the Claims Process or may choose a trial before the Court.
They also may ask the Court to award a service payment of $10,000 each, to be paid from the settlement fund. A service payment is not for damages for discrimination, but would be a payment for services the Named Plaintiffs have provided to the Class in obtaining the settlement. The Court may grant this payment, approve the request at a lower amount, or award no service payment.
THE LAWYERS REPRESENTING YOU
24. Do I have a Lawyer in this Case?
The Court appointed the law firms of the Impact Fund; Lewis, Feinberg, Lee, Renaker & Jackson, PC; Lieff Cabraser, Heimann & Bernstein, LLP; Davis, Cowell & Bowe, LLP; and Altshuler Berzon, LLP to represent you and other Class Members. Together, the lawyers are called Class Counsel.
25. How Will the Lawyers be Paid?
Class Counsel will ask the Court for an award of attorneys’ fees and costs, to be paid by Costco, in the amount of $4,583,959.64 for the services that they have provided to the Class up to the date that the proposed settlement agreement is approved by the Court. They also will ask for fees for anticipated services in monitoring and administering the settlement in the amount of $300,000.
You can review the request for attorneys’ fees at www.GenderClassActionAgainstCostco.com. You can submit a written objection to the request. The Court will examine the fees request of Class Counsel at the Fairness Hearing, as well as any objections to that request, and determine the amount of fees to award, if any.
Attorneys’ fees and costs will not be paid from the settlement fund.
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OPTING OUT OF THE SETTLEMENT
26. Who Should Opt Out of the Class?
If (1) you want to keep the right to sue or continue to sue Costco on your own for sex discrimination in unlawfully denying an AGM or GM promotion, or (2) you do not want to be bound by the settlement of this lawsuit, then you should take steps to get out of the settlement. This is called “opting out.”
27. How Do I Opt Out of the Class?
To opt out of the settlement, you must complete the Opt Out form included with this notice. Be sure to include your name, address, telephone number, and your signature. You must mail your completed Opt Out form postmarked no later than DATE, 2014 to:
Ellis v. Costco Opt Outs Settlement Services, Inc. Post Office Box 10847 Tallahassee, Florida 32302-2847
You cannot opt out by phone or email.
If you ask to opt out, then you cannot participate in the Claims Process, and you cannot object to the settlement. You will not be legally bound by anything that happens in this lawsuit.
You cannot exclude yourself from the program changes called for by the proposed settlement.
OBJECTING TO THE SETTLEMENT
28. How Do I Tell the Court That I Don’t Like the Settlement?
If you’re a Class Member, then you can object to the settlement if you don’t like any part of it, and the Court will consider your views.
To object, you must send a letter saying that you object to the Ellis v. Costco proposed settlement. Be sure to include your name, address, telephone number, signature, and the reasons you object to the proposed settlement. Mail your objection to the Class Administrator postmarked no later than DATE, 2014.
Ellis v. Costco Objections Settlement Services, Inc. Post Office Box 10847 Tallahassee, Florida 32302-2847
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29. What’s the Difference Between Objecting and Opting Out?
If you object, then you are telling the Court that you don’t like something about the proposed settlement. You can object only if you stay in the Class.
If you opt out, then you are telling the Court that you don’t want to be bound by this settlement. If you opt out, then you cannot object to the proposed settlement, because then the case would no longer affect you.
THE COURT’S FAIRNESS HEARING
30. When and Where Will the Court Decide Whether to Approve the Settlement?
The Court will hold a Fairness Hearing at TIME on DAY, DATE, 2014, at the United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA in Courtroom 5.
At this hearing, the Court will consider whether the settlement is fair, reasonable, and adequate. If there are objections, then the Court will consider them. The Court will decide whether to approve the proposed settlement. We do not know how long these decisions will take.
31. Do I Have to Come to the Hearing?
No. Class Counsel and Costco’s counsel will answer questions the judge may have of them. If you send an objection, then you don’t have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it. However, you may appear in person or have your own lawyer attend.
32. May I Speak at the Hearing?
You may ask the Court for permission to speak at the Fairness Hearing or hire your own lawyer to speak for you. To do so, you must send a letter saying that it is your “Notice of Intention to Appear in Ellis v. Costco.” Be sure to include your name, address, telephone number, and signature. Your Notice of Intention to Appear must be postmarked no later than DATE, 2014, and be sent to the Class Administrator, at the address in Section 28.
IF YOU DO NOTHING
33. What Happens if I Do Nothing at All?
If you do nothing, then you’ll be entitled to file a claim in the claims process or choose not to file a claim.
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You will be releasing your right to bring your own independent lawsuit, continue with such a lawsuit, or be part of any other lawsuit against Costco about the legal issues in this case.
GETTING MORE INFORMATION
34. How Do I Get More Information?

This notice summarizes the proposed settlement. More details are in the Settlement Agreement. You can get a copy by contacting Class Counsel identified below, by visiting the case website, www.GenderClassActionAgainstCostco.com, or by calling Costco Human Resources to leave a message at extension 6095 or by sending an email to bweber@Costco.com.

Do not contact the Court for information.

COURT

CLASS COUNSEL

COSTCO COUNSEL

Clerk of the Court U.S. District Court for the Northern District of California 450 Golden Gate Ave. San Francisco, CA 94102-3489

Jocelyn Larkin The Impact Fund 125 University Avenue Suite 102 Berkeley, CA 94710 www.GenderClassActionAgainstCostco.com

David D. Kadue Seyfarth Shaw LLP 2029 Century Park East Suite 3500 Los Angeles, CA 90067

16745951v.2

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EXHIBIT 2

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Ellis v. Costco Wholesale Corporation
No. 04-3341 EMC (United States District Court, Northern District of California)
Opt-Out Request
I received the Notice of Class Action Settlement in Ellis v. Costco Wholesale Corporation.
I want to opt-out of the proposed class action settlement.
Signature: ______________________________________ Name: _________________________________________ Date: __________________________________________ Address: _________________________________________ Telephone Number: _________________________________
This Opt-Out Request must be postmarked no later than _______, 2014 and mailed to: Class Administrator
Ellis v. Costco Wholesale Corp. Settlement Services, Inc. P.O. Box 10847
Tallahassee, FL. 32302-2847

CCaCasasees3e3:03:04:04-c4-cv-v-c0-v03-0333434141-E1-EM-EMCMCCDDoDococuucmumemenent7nt77t78970-18 FFFileiilleeddd000222/1//11200/1//11444 PPPaaagggeee55195oof f36517

1 THE IMPACT FUND
Jocelyn D. Larkin (SBN 110817)
2 Robert Schug (SBN 249640)
125 University Avenue, Suite 102
3 Berkeley, CA 94710
Telephone: (510) 845-3473
4 Facsimile: (510) 845-3654
jlarkin@impactfund.org
5
LEWIS, FEINBERG, LEE,
6 RENAKER & JACKSON, P.C.
Bill Lann Lee (SBN 108452)
7 Lindsay Nako (SBN 239090)
476 9th Street
8 Oakland, CA 94607
Telephone: (510) 839-6824
9 Facsimile: (510) 839-7839
blee@lewisfeinberg.com
10
[Additional Counsel Listed on
11 Signature Page]
12 Attorneys for Plaintiffs and Certified Classes
13
14
15

SEYFARTH SHAW LLP Kenwood C. Youmans (SBN 68258) David D. Kadue (SBN 113578) 2029 Century Park East, Suite 3500 Los Angeles, California 90067-2901 Telephone: (310) 201-5211 Facsimile: (310) 201-5219 dkadue@seyfarth.com
SEYFARTH SHAW LLP Gerald L. Maatman (admitted pro hac vice) Annette Tyman (admitted pro hac vice) 131 South Dearborn Street Chicago, Illinois 60603 Telephone: (312) 460-5965 Facsimile: (312) 460-7965 gmaatman@seyfarth.com
SEYFARTH SHAW LLP Thomas J. Wybenga (admitted pro hac vice) c/o Costco Wholesale Corporation 999 Lake Drive Issaquah, WA 98027-5367 Telephone: (425) 313-6794 Facsimile: (425) 313-6922 twybenga@seyfarth.com
Attorneys for Defendant Costco Wholesale Corporation

16

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

20 SHIRLEY "RAE" ELLIS, et al.,

21

Plaintiffs,

22

v.

23 COSTCO WHOLESALE CORPORATION

24

Defendant.

25

) Case No. C04 3341 EMC ) ) STIPULATION REGARDING ) AMENDED SETTLEMENT ) AGREEMENT AND CLASS NOTICE ) ) ) ) )

26

27

28

STIP. RE: AM. SETTLEMENT AGREEMENT

AND CLASS NOTICE

Case No.: C04 3341 EMC

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1

STIPULATION

2

On January 12, 2013, Plaintiffs filed a motion for preliminary settlement approval in the

3 above-captioned matter. The parties’ Amended Class Action Settlement Agreement was

4 subsequently filed with the Court as Exhibit A to the January 30, 2014 Declaration of Jocelyn

5 Larkin. (ECF No. 776-1.) Pursuant to the Court’s suggestion at the February 6, 2014 hearing on

6 preliminary settlement approval, the parties, through their counsel, hereby stipulate and agree

7 that the Amended Class Action Settlement Agreement is further amended as follows:

8

1. Amended Settlement Agreement § 13. The standard of review on objections, if

9 any, to recommendations of the Compliance Special Master in § 13 of the Amended Settlement

10 Agreement shall be “abuse of discretion.”

11

2. Notice of Class Action Settlement (Exhibit 1). The text following the third

12 bullet on page 1 of the Notice of Class Action Settlement will be bold, and will read:

13

The proposed settlement, if approved by the Court, also would create an

14

arbitration claims process in which women may make claims for economic

15

damages resulting from unlawful denial of promotions because of their sex.

16

Unless you win your claim, you will not receive any money. The proposed

17

settlement provides a fund up to $8 million to compensate women who bring

18

successful claims. (See Sections 6 and 8).

19

20 IT IS SO STIPULATED.

21

Dated: February 10, 2014

22

23

Dated: February 10, 2014

24

/s/ Jocelyn Larkin Counsel for Plaintiffs
/s/ David Kadue Counsel for Defendant

25 Additional Counsel for Plaintiffs:

26 LIEFF, CABRASER, HEIMANN
& BERNSTEIN, LLP
27 Kelly Dermody (SBN 171716)
Daniel Hutchinson (SBN 239458)
28

2
STIP. RE: AM. SETTLEMENT AGREEMENT AND CLASS NOTICE
Case No.: C04 3341 EMC

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1 Embarcadero Center West
275 Battery Street, 30th Floor
2 San Francisco, CA 94111-3339
Telephone: (415) 956-1000
3 Facsimile: (415) 956-1008
kdermody@lchb.com
4
DAVIS, COWELL & BOWE, LLP
5 Steve Stemerman (SBN 067690)
Elizabeth A. Lawrence (SBN 111781)
6 595 Market Street, #1400
San Francisco, CA 94105
7 Telephone: (415) 597-7200
Facsimile: (415) 597-7201
8 eal@dcbsf.com
9 ALTSHULER BERZON LLP
James M. Finberg (SBN 114850)
10 177 Post Street, Suite 300
San Francisco, CA 94108
11 Telephone: (415) 421-7151
Facsimile: (415) 362-8064
12 jfinberg@altshulerberzon.com
Additional Counsel for Defendant
13
SEYFARTH SHAW LLP
14 David B. Ross (admitted pro hac vice)
620 8th Avenue
15 32nd Floor
New York, New York 10018
16 (212) 218-5500
dross@seyfarth.com
17
18
19
20
21
22
23
24
25
26
27
28

3
STIP. RE: AM. SETTLEMENT AGREEMENT AND CLASS NOTICE
Case No.: C04 3341 EMC

 
 CCaassee33:0:044--ccvv--0033334411--EEMMCC DDooccuummeennt7t78709 FFilieledd0022/1/120/1/144 PPaaggee11ooff641

1
THE IMPACT FUND
2 Jocelyn D. Larkin (SBN: 110817)
Robert Schug (SBN: 249640)
3 125 University Avenue, Suite 102
Berkeley, CA 94710
4 Telephone: (510) 845-3473
Facsimile: (510) 845-3654
5 jlarkin@impactfund.org

DAVIS, COWELL & BOWE, LLP Steve Stemerman (SBN: 067690) Elizabeth A. Lawrence (SBN: 111781) 595 Market Street, #1400 San Francisco, CA 94105 Telephone: (415) 597-7200 Facsimile: (415) 597-7201 eal@dcbsf.com

6 LEWIS, FEINBERG, LEE,
RENAKER & JACKSON, P.C.
7 Bill Lann Lee (SBN: 108452)
Lindsay Nako (SBN: 239090)
8 476 9th Street
Oakland, CA 94607
9 Telephone: (510) 839-6824
Facsimile: (510) 839-7839
10 blee@lewisfeinberg.com

ALTSHULER BERZON LLP James M. Finberg (SBN: 114850) 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 jfinberg@altshulerberzon.com

11 LIEFF, CABRASER, HEIMANN
& BERNSTEIN, LLP
12 Kelly Dermody (SBN: 171716)
Daniel Hutchinson (SBN: 239458)
13 Embarcadero Center West
275 Battery Street, 30th Floor
14 San Francisco, CA 94111-3339
Telephone: (415) 956-1000
15 Facsimile: (415) 956-1008
kdermody@lchb.com
16

17 Attorneys for Plaintiffs and Certified Classes

18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

20 SHIRLEY "RAE" ELLIS, et al.,

21

Plaintiffs,

22

v.

23 COSTCO WHOLESALE CORPORATION

24

Defendant.

25

26

27

) Case No. C04-3341 EMC

)

) Assigned to: Hon. Edward M. Chen

)

) [PROPOSED] ORDER GRANTING

) MOTION FOR (1) PRELIMINARY

) APPROVAL OF CLASS ACTION

) SETTLEMENT; (2) APPROVAL OF

) CLASS NOTICE AND NOTICE PLAN;

) AND (3) SETTING OF SCHEDULE

) FOR FINAL APPROVAL

)

) Hearing Date: February 6, 2014

) Hearing Time: 1:30 PM

) Courtroom:

5 (17th Floor)

28
[PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL Case No. C04-3341 EMC

CCaassee33:0:044--ccvv--0033334411--EEMMCC DDooccuummeennt7t78709 FFilieledd0022/1/120/1/144 PPaaggee22ooff641

1

Having reviewed Plaintiffs’ Motion for (1) Preliminary Approval of Class Action

2 Settlement, (2) Approval of Class Action Notice Plan, and (3) Setting of Schedule for Final

3 Approval; the Memorandum of Points and Authorities in support thereof; the Declarations of

4 Jocelyn D. Larkin, Shirley “Rae” Ellis, Elaine Sasaki, and Leah Horstman; the proposed

5 Settlement Agreement and Amended Settlement Agreement; the proposed Notice and Amended

6 Notice; the parties’ Stipulation Regarding Amended Settlement Agreement; the parties’ Joint

7 Supplemental Brief in Response to January 22, 2014 Order and Regarding Contingent

8 Distribution of Excess Funds; Plaintiffs’ Supplemental Application for Service Awards to Class

9 Representatives; and the arguments of counsel, along with the files and records of this case, the

10 Court now FINDS, CONCLUDES, and ORDERS as follows:

11

12

PRELIMINARY APPROVAL OF SETTLEMENT

13

The Court has reviewed the terms of the proposed Amended Settlement Agreement and

14 the parties’ Stipulation Regarding Amended Settlement Agreement (together, the “Amended

15 Settlement Agreement”), attached as Exhibit 1, including specifically the programmatic relief

16 and monetary relief provisions. The Court has also reviewed the Motion papers and the

17 declaration of Jocelyn D. Larkin, which describe Class Counsel’s legal and factual investigation,

18 and the settlement process. Based on review of those papers, and the Court’s familiarity with

19 this case, the Court concludes that the settlement and Settlement Agreement are the result of

20 extensive, arms’ length negotiations between the parties after Class Counsel investigated the

21 claims and became familiar with the strengths and weaknesses of Plaintiffs’ case. The Court

22 finds that the settlement process was non-collusive. Based on the Court’s review of the papers

23 submitted in support of preliminary approval, and the Court’s familiarity with the issues in the

24 case, the Court concludes that the proposed Settlement Agreement has no obvious defects and is

25 within the range of possible settlement approval such that notice to the Class is appropriate.

26

It is therefore ORDERED:

27

That the Amended Settlement Agreement and the settlement it embodies are hereby

28 PRELIMINARILY APPROVED. Final approval and entry of the Amended Settlement

1

[PROPOSED] ORDER GRANTING MOTION FOR

PRELIMINARY APPROVAL

Case No. C04-3341 EMC

CCaassee33:0:044--ccvv--0033334411--EEMMCC DDooccuummeennt7t78709 FFilieledd0022/1/120/1/144 PPaaggee33ooff641

1 Agreement is subject to the hearing of any objections of members of the classes to the proposed

2 Agreement.

3

APPROVAL OF THE FORM AND MANNER OF DISTRIBUTING NOTICE

4

Plaintiffs have also submitted for this Court’s approval a proposed form of Class Notice,

5 which the Court has carefully reviewed, and the parties have amended pursuant to the Court’s

6 Order of January 22, 2014 and the Court’s suggestion at the February 6, 2014 hearing. The

7 Court finds and concludes as follows:

8

1. The proposed Notice allows class members a full and fair opportunity to consider

9 the proposed Amended Settlement Agreement, fees and costs application, and proposed service

10 payments. The proposed plan for distributing the Notice, which is attached to the proposed

11 Amended Settlement Agreement, is a reasonable method to inform class members of the terms of

12 the settlement, the application for attorneys’ fees and costs, and proposed service payments, and

13 of class members’ opportunity to comment on, or object to, these motions. Under the proposed

14 settlement agreement, a respected claims administrator will mail a notice packet to class

15 members by First Class U.S. Mail. The administrator will take reasonable steps to determine the

16 most recent address of each class member.

17

2. The Notice fairly, plainly, accurately, and reasonably informs Class Members of,

18 among other things: (1) the nature of the action; (2) the identities of class counsel; (3) the terms

19 and provisions of the proposed settlement; (4) the relief to which the members of each class will

20 be entitled, including detailed summaries of the programmatic relief and claims process; (5) the

21 process by which class members may make a claim for monetary relief if the settlement is

22 approved; (6) how administrative costs, attorneys’ fees, and potential service payments will be

23 handled; (7) the procedures and deadlines for submitting objections, and/or requests for

24 exclusion; and (8) the date, time, and place of the final approval hearing.

25

3. The Court FINDS and CONCLUDES that the proposed plan for distributing the

26 Notice satisfies the notice requirements of Rule 23, and satisfies all other legal and due process

27 requirements.

28

4. Accordingly, it is therefore ORDERED:

2

[PROPOSED] ORDER GRANTING MOTION FOR

PRELIMINARY APPROVAL

Case No. C04-3341 EMC

CCaassee33:0:044--ccvv--0033334411--EEMMCC DDooccuummeennt7t78709 FFilieledd0022/1/120/1/144 PPaaggee44ooff641

1

a. The form of the Notice is approved.

2

b. The manner of distributing Notice is approved.

3

c. The Notice shall be distributed as set forth in the proposed Settlement

4 Agreement within 14 days of the date of this Order.

5

PROCEDURES FOR FINAL SETTLEMENT APPROVAL

6

1. Fairness Hearing

7

The Court will hold a hearing to determine whether to grant final approval of the

8 Settlement Agreement, to hear the application for attorneys’ fees and costs, and to hear the

9 motion for service payments to the Class Representatives (the “Fairness Hearing”) on May 22,

10 2014 at 1:30 PM.

11

2. Deadline for Objections and Exclusions

12

Any objection to the Settlement, application for attorneys’ fees and costs, or proposed

13 service payments must be postmarked no later than 60 days from the date that the Claims

14 Administrator finishes the first mailing of the Notice to the Class Members. Class Counsel will

15 record all objections and comments with the Court prior to the Fairness Hearing.

16

3. Deadline for Filing Motion for Final Settlement Approval

17

No later than 35 days before the Fairness Hearing, Plaintiffs shall file a motion for final

18 approval of the settlement.

19

4. Deadline for Briefs Responding to Objections

20

On or before one week before the Fairness Hearing, the Parties may file briefs responding

UNITED S
UNITED S ALIFORNIA
ALIFORNIA

OURT OURT NORTH
NORTH

21 22

to any filed objections to the Settlement motion for service payments.

Agreement,

apTpAlTicEatSioDn fIoSrTaRttoIrCnTeyCs’

fees

and

costs,

or

23

IT IS SO ORDERED.
24

APPROVED

25 Dated: 2/12/14 26 27 28

TATES DISTRICT C APPROVED
Judge Edward M. Chen ERN DISTRICT OF C

EDWARD M. CHEN United StatJeusdDgeisEtrdiwctaJrdudMge.

Chen

3

ERN[PDROIPSOTSERD]IOCRDTEROGFRACNTING MOTION FOR

PRELIMINARY APPROVAL

Case No. C04-3341 EMC

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EXHIBIT 1

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1 COUNSEL LISTED ON NEXT PAGE

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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11 SHIRLEY "RAE" ELLIS, et al.,

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Plaintiffs,

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v.

14 COSTCO WHOLESALE CORPORATION

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Defendant.

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) Case No. C04 3341 EMC ) ) AMENDED CLASS ACTION ) SETTLEMENT AGREEMENT ) ) ) ) ) )

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AMENDED CLASS ACTION SETTLEMENT AGREEMENT

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1 THE IMPACT FUND Jocelyn D. Larkin (SBN 110817)
2 Robert Schug (SBN 249640) 125 University Avenue, Suite 102
3 Berkeley, CA 94710 Telephone: (510) 845-3473
4 Facsimile: (510) 845-3654 jlarkin@impactfund.org
5 LEWIS, FEINBERG, LEE,
6 RENAKER & JACKSON, P.C. Bill Lann Lee (SBN 108452)
7 Lindsay Nako (SBN 239090) 476 9th Street
8 Oakland, CA 94607 Telephone: (510) 839-6824
9 Facsimile: (510) 839-7839 blee@lewisfeinberg.com
10 LIEFF, CABRASER, HEIMANN
11 & BERNSTEIN, LLP Kelly Dermody (SBN 171716)
12 Daniel Hutchinson (SBN 239458) Embarcadero Center West
13 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
14 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
15 kdermody@lchb.com
16 DAVIS, COWELL & BOWE, LLP Steve Stemerman (SBN 067690)
17 Elizabeth A. Lawrence (SBN 111781) 595 Market Street, #1400
18 San Francisco, CA 94105 Telephone: (415) 597-7200
19 Facsimile: (415) 597-7201 eal@dcbsf.com
20 ALTSHULER BERZON LLP
21 James M. Finberg (SBN 114850) 177 Post Street, Suite 300
22 San Francisco, CA 94108 Telephone: (415) 421-7151
23 Facsimile: (415) 362-8064 jfinberg@altshulerberzon.com
24 Attorneys for Plaintiffs and Certified Classes
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SEYFARTH SHAW LLP Kenwood C. Youmans (SBN 68258) David D. Kadue (SBN 113578) 2029 Century Park East, Suite 3500 Los Angeles, California 90067-2901 Telephone: (310) 201-5211 Facsimile: (310) 201-5219 dkadue@seyfarth.com
SEYFARTH SHAW LLP Gerald L. Maatman (admitted pro hac vice) Annette Tyman (admitted pro hac vice) 131 South Dearborn Street Chicago, Illinois 60603 Telephone: (312) 460-5965 Facsimile: (312) 460-7965 gmaatman@seyfarth.com
SEYFARTH SHAW LLP Thomas J. Wybenga (admitted pro hac vice) c/o Costco Wholesale Corporation 999 Lake Drive Issaquah, WA 98027-5367 Telephone: (425) 313-6794 Facsimile: (425) 313-6922 twybenga@seyfarth.com
SEYFARTH SHAW LLP David B. Ross (admitted pro hac vice) 620 8th Avenue 32nd Floor New York, New York 10018 (212) 218-5500 dross@seyfarth.com
Attorneys for Defendant Costco Wholesale Corporation

AMENDED CLASS ACTION SETTLEMENT AGREEMENT

1 1. 2 2. 3 3. 4 4. 5 5. 6 6. 7 7. 8 8. 9 9. 10 10. 11 11. 12 12. 13 13. 14 14. 15 15. 16 17 18 19 20 21 22 23 24 25 26 27 28

CCaassee33:0:044-c-cvv-0-033334411-E-EMMCC DDooccuummeennt7t77890-1 FFileiledd0022/1/120/1/144 PPaaggee84oof f6517 Table of Contents Page
Background and Recitals .................................................................................................... 1 Definitions........................................................................................................................... 2 Settlement Fund .................................................................................................................. 6 Programmatic Terms........................................................................................................... 7 Monetary Claims Process ................................................................................................. 12 Release of Claims by Class Members............................................................................... 21 Class Administration......................................................................................................... 21 Procedure for Court Approval and Class Notice .............................................................. 23 Costco’s Right to Rescind................................................................................................. 24 Relief for the Named Plaintiffs ......................................................................................... 24 Attorneys’ Fees and Costs ................................................................................................ 24 Publicity ............................................................................................................................ 25 Compliance Procedure ...................................................................................................... 25 Retention of Jurisdiction ................................................................................................... 27 Miscellaneous Provisions.................................................................................................. 27

i AMENDED CLASS ACTION SETTLEMENT AGREEMENT

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Background and Recitals

1.1 This Class Action Settlement Agreement—between (i) Costco Wholesale Corporation and (ii) Class Representatives Rae Ellis, Leah Horstman, and Elaine Sasaki—is intended to settle, subject to Court approval, the above-captioned class action, Ellis v. Costco Wholesale Corp., Civ. No. C-04-3341 EMC (N.D. Cal.), through two principal means:

1.1.1 implementation of certain programmatic terms, described in Section 4, and

1.1.2 implementation of a claims process to address monetary claims, described in Section 5.

1.2 The Parties have entered into this Class Action Settlement Agreement with reference to the following facts.

1.2.1

This action was filed in the United States District Court for the Northern District of California, in August 2004. The Fourth Amended Complaint asserts claims on behalf of two classes of employees, alleging that Costco has maintained a promotion system that discriminated against women in making promotions to Assistant General Manager and General Manager in U.S. warehouses.

1.2.2 Costco has answered the complaint, denying its material allegations while presenting various defenses. Costco disputes all claims alleged and does not by this Agreement admit any liability or wrongdoing whatsoever.

1.2.3 The United States District Court Judge, the Honorable Edward Chen, issued an order on September 25, 2012, certifying the following two classes:

1.2.3.1

Injunctive Relief Class: “All women who are currently employed or who will be employed at any Costco warehouse in the U.S. who have been or will be subject to Costco’s system for promotion to Assistant General Manager or General Manager.”

1.2.3.2

Monetary Relief Class: “All women who have been employed at any Costco warehouse store in the U.S. since January 3, 2002 who have been subject to Costco's system for promotion to Assistant General Manager or General Manager positions.”

1.2.4 The Parties have engaged in substantial discovery, including dozens of deposition sessions and production of hundreds of thousands of pages of documents.

1.2.5

The Parties jointly retained a neutral mediator, Mark S. Rudy, and engaged in multiple in-person and telephone mediation sessions over several months. Mr. Rudy has extensive experience in mediating complex employment discrimination and class action cases. The Parties submitted to the Court in camera on October 14, 2013, a memorandum of understanding setting forth the principal terms that were a product of that

AMENDED CLASS ACTION SETTLEMENT AGREEMENT

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negotiation. This Class Action Settlement Agreement supersedes that

1

memorandum.

2

1.3 No court has made any finding of liability.

3 2. Definitions

4

The following terms in this Class Action Settlement Agreement, including any Exhibits

and Notices, shall have the meanings assigned to them below. 5

2.1 “Action” 6

“Action” refers to Ellis v. Costco Wholesale Corp., Civ. No. C-04-3341 EMC (N.D.

7

Cal.).

8

2.2 “Administrative Costs”

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“Administrative Costs” means the fees and costs incurred for activities traditionally

undertaken by a class administrator, including the mailing, tracing and re-mailing of the

10

Notice of Class Settlement; the receiving and reporting of Opt-Outs and Objections; the

receiving and reporting of Claim-related Forms; the calculating of Claim Awards; and tax

11

reporting and payment of required tax withholding out of settlement proceeds.

12

2.3 “AGM” and “GM”

13

“GM” refers to a General Manager, also known as a Warehouse Manager, of a Costco

warehouse in the United States; “AGM” refers to an Assistant General Manager, also

14

known as an Assistant Manager, of a Costco warehouse in the United States.

15

2.4 “Award”

16

“Award” refers to an arbitral award issued pursuant to Section 5, to the effect that a

Claimant either has or has not been discriminated against because of her gender in a

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promotion to AGM or GM.

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2.5 “Award Amount”

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“Award Amount” refers to the amount of the economic damages to which a Claimant is

provisionally entitled as the result of winning an Award. An Award Amount is subject to

20

potential upward or downward adjustment as described in Sections 5.12 and 5.13.

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2.6 “Claim”

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“Claim” refers to a Claim perfected pursuant to Section 5.

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2.7 “Claimant”

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“Claimant” refers to a Settlement Class Member who has timely elected to participate in

the Monetary Claims Process described in Section 5. 25

2.8 “Claim Form” 26

“Claim Form” refers to the form by which a Settlement Class Member initiates a Claim

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in the Monetary Claims Process described in Section 5.

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2.9 “Claim Form Submission Deadline” 1

“Claim Form Submission Deadline” refers to the deadline (sixty (60) days after the date

2

of Final Approval) by which a Claim must be submitted to the Class Administrator.

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2.10 “Claim Settlement”

4

“Claim Settlement” refers to money an individual Claimant has been promised to resolve

a Claim initiated under Section 5. 5

2.11 “Class” and “Class Member” 6

“Class” means the Monetary Relief Class (as referred to in Section 1.2.3.2): “All women

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who have been employed at any Costco warehouse store in the U.S. since January 3,

2002 who have been subject to Costco's system for promotion to Assistant General

8

Manager or General Manager positions,” minus those who opted out in response to the

Initial Class Notice. The Parties agree that these are the individuals who, at any time

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since January 3, 2002, have held, in a U.S. warehouse, either an AGM position or a

Senior Staff position. These individuals will be identified through use of the Lawson job

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codes in Costco’s databases (job code 2001 for the AGM position, and job codes 2002-

2005, 2027, 3002-3005, and 3027 for the various Senior Staff positions). 11

2.12 “Class Administrator” 12

“Class Administrator” refers to Settlement Services, Inc., a subsidiary of Garden City

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Group.

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2.13 “Class Counsel”

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“Class Counsel” refers to the following firms and organizations: Impact Fund; Lieff,

Cabraser, Heimann & Bernstein, LLP; Lewis, Feinberg, Lee, Renaker & Jackson, P.C.;

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Davis, Cowell & Bowe, LLP; Altshuler Berzon LLP.

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2.14 “Class Period”

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“Class Period“ refers to the time from January 3, 2002, to the date of Preliminary

Approval. 19

2.15 “Class Representatives” or “Named Plaintiffs” 20

The terms “Class Representatives” and “Named Plaintiffs” refers to the three Plaintiffs

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acting in their capacity as class representatives.

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2.16 “Court”

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“Court” refers to the United States District Court for the Northern District of California.

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2.17 “Defendant” or “Costco”

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The terms “Defendant” and “Costco” both refer to the Defendant, Costco Wholesale

Corporation. 26

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2.18 “Effective Date” 1

The “Effective Date” of this Agreement shall mean the first day following the last of the

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following:

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2.18.1 If no objections to the Settlement Agreement are pending as of the Final

Approval, then the date of the Court’s Final Approval of this Settlement

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Agreement.

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2.18.2 If objections are pending as of the Final Approval, but no appeal or other

judicial review eventuates, then thirty (30) days following the Final

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Approval.

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2.18.3 If an appeal is filed and Final Approval is affirmed, then the date on which

no further judicial appellate review is possible. 8

2.19 “Gross Settlement Fund” 9

The “Gross Settlement Fund” is the $8,000,000 fund described in Section 3. 10

2.20 “Final Approval” 11

“Final Approval” means the entry of a Court order granting final approval of this

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Agreement, following a fairness hearing.

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2.21 “Good Faith”

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The duty of good faith requires a party to be active and constructive in maintaining a

productive relationship, to be responsive and communicative, to engage in thoughtful and

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measured evaluation of proposals with an open mind, taking Costco’s business needs and

the terms of this Agreement into account, and to reach accord absent a genuine reason not

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to do so. Good faith does not require parties to set aside their own interests, or to come to

an agreement. 17

2.22 “GM” and “AGM” 18

“GM” refers to a General Manager, also known as a Warehouse Manager, of a Costco

19

warehouse in the United States. “AGM” refers to an Assistant General Manager, also

known as an Assistant Manager, of a Costco warehouse in the United States. 20

2.23 “Implementation Date” 21

The “Implementation Date” is the date on which Costco, under Section 4, implements

22

any selection criteria and assessment tools, initiates its AGM posting program, or

activates its Registration of Interest program, whichever is later. 23

2.24 “Independent Consultant” 24

The Independent Consultant will be DCI Consulting Group. 25

2.25 “Initial Class Notice” 26

The term “Initial Class Notice” refers to the Court-approved notice that went to

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approximately 1,258 individuals in December 2012.

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2.26 “Monetary Claims Process” 1

“Monetary Claims Process” includes the adjudication of Claims submitted under Section

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5, and concludes with the award that an arbitrator makes on the last pending Claim.

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2.27 “Net Settlement Fund”

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The “Net Settlement Fund” is the Gross Settlement Fund minus any Administrative

Costs, and minus any Service Payments awarded to the Named Plaintiffs by the Court

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under Section 10.4.

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2.28 “Notice of Class Action Settlement”

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The “Notice of Class Action Settlement” (copied as Exhibit 1) is the notice, approved by

the Court, that the Class Members will be sent within ten (10) days of the Preliminary

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Approval of the Class Action Settlement Agreement.

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2.29 “Notice Packet”

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The “Notice Packet” consists of the Notice of Class Action Settlement and the Opt Out

Form, and will be mailed to each Class Member who has not already opted out. 11

2.30 “Objection Deadline” 12

“Objection Deadline” is the date by which a Class Member must submit an objection to

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the proposed Settlement. The Objection Deadline is 60 days after the Class Administrator

mails the Notice of Class Action Settlement. 14

2.31 “Opt Out Form” 15

The “Opt Out Form” is the form, copied as Exhibit 2, that a Class Member must complete

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to exclude herself from the Settlement Class.

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2.32 “Opt Outs”

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An “Opt Out” is a person who has validly requested exclusion from the Class in response

to the Initial Class Notice or the Notice of Class Action Settlement identifying the

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opportunity to opt out.

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2.33 “Opt Out Deadline”

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“Opt Out Deadline” is the date by which a Class Member must act to exercise the right to

opt out of the Settlement Class. The Opt Out Deadline is 60 days after the Class

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Administrator mails the Notice of Class Action Settlement.

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2.34 “The Parties”

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The term “the Parties” refers collectively to the Plaintiffs and Costco.

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2.35 “Plaintiffs” or “Named Plaintiffs”

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The terms “Plaintiffs” or “Named Plaintiffs” means the three named Plaintiffs: Rae Ellis,

Leah Horstman, Elaine Sasaki. 27

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3. 18 19 20 21 22 23 24 25 26 27 28

2.36 “Preliminary Approval”
“Preliminary Approval” means the entry of a Court order granting preliminary approval of this Agreement, reflecting the Court’s conclusion that the terms of this Agreement appear sufficiently fair to the Class to warrant issuance of Notice of Class Action Settlement, giving Class Members an opportunity to object or opt out, and providing for a fairness hearing to consider Final Approval.
2.37 “RSUs”
“RSUs” means restricted stock units.
2.38 “Senior Staff Manager” or “Senior Staff”
The terms “Senior Staff Manager” and “Senior Staff” refer to U.S. warehouse managers holding the title of Front End Manager, Administration Manager, Receiving Manager, or Merchandise Manager.
2.39 “Service Payments”
“Service Payments” means the award by the Court, if any, to the Class Representatives for service provided to the Class in the course of the litigation as provided in Section 10.4.
2.40 “Settlement Class”
The “Settlement Class” means all Settlement Class Members as defined herein.
2.41 “Settlement Class Member”
A “Settlement Class Member” is any Class Member who has not timely opted out from the Class pursuant to either the Initial Class Notice or to the Notice of Class Action Settlement.
Settlement Fund
3.1 Costco will pay a gross settlement of $8 million on a non-reversionary basis, which will include any interest awarded as part of a Claimant’s economic damages. This sum of money shall be known as the Gross Settlement Fund.
3.2 Costco will make an initial deposit, sufficient to cover anticipated costs of administration and any Service Payments approved by the Court, within ten (10) days of Final Approval of the Class Action Settlement Agreement. Costco will, unless otherwise agreed by the Parties, deposit the balance of the $8 million upon the entry of the final award made during the Monetary Claims Process.
3.3 The Net Settlement Fund will be the Gross Settlement Fund minus Administrative Costs, and minus any Service Payments awarded to the named plaintiffs by the Court under Section 10.4.
3.4 Described below is the process for determining which class members, if any, are entitled to share in the Net Settlement Fund, and in what amounts, if any.
6 AMENDED CLASS ACTION SETTLEMENT

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3.5 Any funds not awarded to Class Members who prevail in the Monetary Claims Process will be used as follows: (i) the first $100,000, or fraction thereof, will be used to pay the Independent Consultant to the extent that Independent Consultant fees exceed $100,000; (ii) any remainder will be donated to Network of Executive Women, Consumer Products/Retail (“NEW”), (www.newoline.org), to fund scholarships or otherwise assist women pursuing leadership roles in retail management. Within thirty (30) days of any determination that there are funds available to distribute to NEW, the Parties will confer as to whether the funds should go entirely to scholarship recipients or to other NEW-related recipients as well. Those other recipients may include female Costco employees or programs whose interests reasonably approximate those of the Class Members, and conform to the legal principles guiding cy pres distributions.

3.6 The Net Settlement Fund shall not be used to pay attorneys’ fees and costs, or fees and costs for arbitrators, or the Named Plaintiffs’ claims brought in court pursuant to Section 10.2.

Programmatic Terms

4.1 Independent Consultant

4.1.1

Selection – The Parties have selected DCI Consulting Group as the Independent Consultant who will have the responsibilities listed below. Dr. Michael Aamodt and Dr. Eric Dunleavy of that firm, Industrial Organizational Psychologists (IOPs) who have experience conducting professional job analyses and developing selection criteria for management-level positions, will lead and supervise this engagement and make assignments to other DCI staff as they require.

4.1.2 Responsibilities – The Independent Consultant will work with Costco to conduct job analyses, to evaluate promotion processes, and to develop selection criteria and assessment tools as further described below.

4.1.3 Communication with the Independent Consultant – Costco, its counsel, and Class Counsel will be free to communicate with the Independent Consultant concerning any aspect of the work conducted in connection with this Agreement.

4.1.4 Compensation of the Independent Consultant – Costco will pay all fees and expenses of the Independent Consultant, except to the extent provided in Section 3.5.

4.2 Job Analyses and Selection Criteria

4.2.1

Job Analyses – The Independent Consultant will work with Costco’s subject matter experts to prepare Job Analyses for the positions of Assistant General Manager (“AGM”) and General Manager (“GM”) in U.S. warehouses. The Job Analyses will identify the knowledge, skills, abilities, experiences, and competencies associated with AGMs and GMs whom Costco deems successful in those positions. The Parties anticipate that preparation of Job Analyses will entail structured interviews of Costco’s subject-matter experts, review of relevant Costco personnel practices, and observations of a sample of AGMs and GMs at work.

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4.2.2 The Independent Consultant will provide the completed Job Analyses to

1

the Parties. Absent a good-faith concern, Costco will accept the Job

Analyses. If Class Counsel dispute Costco’s good faith in raising a

2

concern, then the Parties and the Independent Consultant will confer in an

effort to resolve the issues that prompted Costco’s stated concerns. 3

4.2.3 Costco will make available to its U.S. warehouse management staff

4

revised job descriptions reflecting any accepted Job Analyses.

5

4.2.4 Development of Proposed Selection Criteria – The Independent

Consultant will use the Job Analyses that Costco has accepted to develop

6

proposed Selection Criteria and tools for their assessment, which may

include modifications to the AGM selection process, if necessary, and

7

suggestions for Costco to consider in connection with the GM selection

process. 8

4.2.5 The proposed Selection Criteria will be developed based on the

9

Independent Consultant’s professional judgment. To the extent that Costco

adopts Selection Criteria, they will be in writing, non-discriminatory, and

10

job-related.

11

4.2.6 To the extent that the proposed Selection Criteria take into account

performance evaluations, “Ready Now” ratings, or other similar evaluative

12

tools, then these tools will also incorporate non-discriminatory, job-related

selection criteria. 13

4.2.7 If the proposed Selection Criteria take into account an employee’s

14

merchandising experience, then women will have the same opportunity for

merchandising training and experience that are available to similarly

15

situated male employees. Costco may use performance evaluation forms to

document merchandising opportunities offered to, accepted by, and

16

declined by employees.

17

4.2.8 If the proposed Selection Criteria take into account an employee’s

willingness to relocate, then Costco will apply any relocation criteria in a

18

non-discriminatory, job-related manner.

19

4.2.9 AGM Selection Criteria and Assessment Tools – Costco will, absent a

good-faith concern, implement any Selection Criteria and Assessment

20

Tools that the Independent Consultant proposes for promotions into AGM

positions. Costco will incorporate implemented proposals, where and as

21

appropriate, into the job descriptions, performance evaluations, and

promotion process for AGM. 22

4.2.10 Consideration of Proposed GM Selection Criteria and Assessment Tools –

23

Costco will, in good faith, consider for implementation any proposed

Selection Criteria and Assessment Tools for GM promotions. This

24

Agreement requires Costco to consider suggested changes in the GM

selection process, in good faith, but does not require Costco to make any

25

such changes.

26

4.2.11 Counsel for the Parties will jointly meet with the Independent Consultant

to resolve any good-faith concern Costco may have about proposed

27

Selection Criteria or Assessment Tools.

28

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4.2.12 The Independent Consultant, in cooperation with Costco, may pilot or

1

otherwise test the adopted Selection Criteria and Assessment Tools for the

AGM position. 2

4.2.13 Post-Implementation Assessment – The Independent Consultant will work

3

with Costco to evaluate job-relatedness of the Selection Criteria and

Assessment Tools and decide whether to propose modifications to them.

4

Costco, in exercising good faith, may accept or reject a proposal. If Class

Counsel dispute Costco’s good faith in rejecting a proposal, then counsel

5

for the Parties will confer with the Independent Consultant in an effort to

resolve any issue that prompted Costco’s stated concern. 6

4.2.14 Costco may, particularly in light of the significance and complexity of the

7

jobs at issue, and the need to fill them efficiently, exercise a right to deny,

in good faith, proposals or work product presented by the Independent

8

Consultant, subject to the dispute resolution process described in Section

13.9, 9

4.2.15 Class Counsel may initiate the dispute resolution procedure (in Section

10

13.9) if, after conferring with Costco and the Independent Consultant,

Class Counsel contend that Costco’s rejection of a proposal is not in good

11

faith.

12

4.3 Posting and Registration of Interest

13

4.3.1 Posting of AGM Positions in U.S. warehouses

14

4.3.1.1 Absent compelling business reasons for using a shorter posting

period, Costco will post each AGM opening it intends to fill

15

with a promotion no fewer than ten days before filling it. Each

job posting will contain the location of the opening, job

16

description, selection criteria, and the designated minimum

qualifications for that opening. 17

4.3.1.2 An open AGM position that Costco intends to fill with a

18

promotion will be posted within a district or other objectively

defined area, to be broad enough to encompass at least ten

19

warehouses or a 50-mile radius. The posting will be available

to be viewed by all U.S. warehouse Senior Staff managers (i.e.,

20

each Front End Manager, Administration Manager, Receiving

Manager, and Merchandise Manager) within that area, whether

21

or not they meet the minimum qualifications for the position.

22

4.3.1.3 Costco will provide a mechanism for an employee who meets

the posted minimum qualifications to apply for the posted

23

AGM position. Costco will audit U.S. warehouses for

compliance with the job posting policy, including the retention

24

of documents recording the names of qualified candidates who

apply for each AGM opening. 25

4.3.1.4 Each qualified employee who exercised the right to apply for a

26

posted AGM opening in a particular warehouse will be

informed of the identity of any individual who is selected for

27

that opening.

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4.3.1.5 Costco will, within 90 days after adopting AGM Selection

1

Criteria and Assessment Tools, implement the AGM posting

system. 2

4.3.2 Registration of Interest for GM Positions: 3

4.3.2.1 Costco will implement a system that allows AGMs to directly

4

register interest in GM positions that may become available at

any U.S. warehouse location. An AGM can register this

5

interest twice per year: (1) in connection with each annual

performance review, and (2) six months thereafter. Registration

6

will be accomplished by the AGM providing his or her

personal email address in that connection. Each registration of

7

interest will expire after one year unless renewed. Costco will

act in good faith to put the registration system into electronic

8

form by the Implementation Date.

9

4.3.2.2 Costco, in filling a GM position by promoting an AGM, will

review the list of AGMs deemed qualified for promotion who

10

have registered interest in that position. Costco will notify

registered AGMs of the identity of individuals selected for

11

those positions. Notice of these identities will not be required if

Costco already is publicizing those individuals to all current

12

AGMs through other means.

13

4.3.3 Merchandising Class

14

4.3.3.1 Within one year of the Effective Date, Costco will offer a

merchandising training class for Senior Staff managers who

15

have not obtained merchandising experience in their current or

prior positions. 16

4.3.3.2 Completion of training is not intended as a substitute for

17

experience in a merchandise manager position, or as a

mandatory requisite for further promotions. Rather, it is

18

intended to be an introduction to merchandising and will be

used by Costco to encourage employees to pursue the

19

merchandising management experience relevant to promotion

to AGM and GM. 20

4.4 Promotion Process 21

4.4.1 Costco will use any Selection Criteria and Assessment Tools that it has

22

adopted through the procedures described above.

23

4.4.2 Costco ordinarily will conduct personal or telephonic interviews with all

applicants who meet the posted minimum qualifications for an open AGM

24

position.

25

4.4.3 If more than five candidates for an AGM opening meet the minimum

posted qualifications, then Costco may limit the number of interviews to

26

five based upon non-discriminatory criteria. The criteria used to limit the

interview pool will be communicated to eligible applicants who were not

27

interviewed.

28

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4.4.4 Costco will maintain records of every AGM promotion, including the

1

identities of qualified applicants (those who met posted minimum

qualifications), the identities of the applicants interviewed, the identities of

2

decision-makers, the identities of candidates who received offers, the

identity of the candidate who received the position, and the reason for the

3

selection.

4

4.4.5 Costco will maintain information about Selection Criteria and Assessment

Tools on its intranet, accessible to warehouse management employees. 5

4.5 Training 6

4.5.1 Within a reasonable time of implementation, Costco will train managers

7

responsible for AGM and GM selections regarding the AGM job posting

system and the GM registration of interest system. 8

4.5.2 Within a reasonable time of implementation, Costco will train managers

9

responsible for AGM and GM selections regarding any Selection Criteria

and Assessment Tools that it has adopted through the procedures

10

described above.

11

4.6 Communication On Posting, Registration of Interest, Selection Criteria, and

Assessment Tools 12

4.6.1 Within a reasonable time of implementation, Costco will inform U.S.

13

Senior Staff managers and AGMs about the AGM job posting system and

the GM registration of interest system. 14

4.6.2 Within a reasonable time of implementation, Costco will inform U.S.

15

Senior Staff managers and AGMs about any Selection Criteria and

Assessment Tools that it has adopted through the procedures described

16

above.

17

4.7 Recordkeeping

18

4.7.1 Costco will maintain records necessary to monitor its compliance with the

terms of this Agreement. 19

4.8 General Non-Discrimination Provisions 20

4.8.1 As stated in Costco’s policies, sex discrimination with respect to

21

promotion into AGM or GM positions is prohibited.

22

4.9 Costco’s Retained Discretion

23

4.9.1 Except insofar as the terms of this Agreement may specify otherwise,

nothing in this Agreement shall limit Costco’s exercise of its managerial

24

discretion to select, transfer, promote, compensate, discipline, or dismiss

any employee, including any Class Member, in accordance with law. 25

4.10 Duration 26

27

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1 2
5. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

4.10.1 The programmatic terms described in this Section 4 will take effect on the Effective Date and will remain in effect for two years after the Implementation Date.

Monetary Claims Process

5.1 Arbitrators

5.1.1 Qualifications – The arbitrators will be experienced in employment discrimination disputes. The arbitrators selected must have a reputation such that they are generally acceptable according to a consensus of the plaintiffs’ bar and the defense bar.

5.1.2 Selection – The Parties will attempt to agree upon persons to act as arbitrators for all Claims. If the Parties are unable to agree, then the Parties will submit separate proposals to Mark Rudy, and he will appoint the arbitrators.

5.1.3

Replacement – In the event that an arbitrator becomes unavailable to fulfill her or his duties, the Parties will meet and confer in an attempt to agree on a replacement. If the Parties are unable to agree, then the Parties will submit separate proposals to Mark Rudy, and he will appoint the arbitrator.

5.1.4

Number of Arbitrators – Once the type and number of Claims is determined, the Parties will attempt to agree upon the number of persons to act as arbitrators for all Claims. No arbitrator will be selected to hear more than five Claims, absent agreement of the Parties. If the Parties cannot agree, then they will submit separate proposals to Mark Rudy, and he will determine the number.

5.1.5

Removal – Any arbitrator may be removed by agreement of the Parties, or by petition from either party to Mark Rudy. He will grant the petition only upon a showing of good cause. If the arbitrator is removed, then the Parties will confer on a replacement. If the Parties cannot agree, then they will submit separate proposals to Mark Rudy, who will appoint the arbitrator.

5.1.6 Unavailability of Mark Rudy – If Mark Rudy is unavailable to perform any of the tasks noted above or the process set forth in Section 5.5.7, then Hunter Hughes will serve instead.

5.1.7

Compensation for Arbitrators – Costco will pay arbitrators’ fees and costs except the Parties will pay whatever fees are incurred by Mark Rudy or Hunter Hughes to resolve the selection of arbitrators. An arbitrator’s fee will be a flat fee in the amount of $10,000 for a Claim by Written Submission and $25,000 for a Claim by Formal Arbitration.

5.1.8 Limitation of Authority – The arbitrator shall decide only whether the Claimant was discriminated against, on the basis of her gender, with respect to a promotion to AGM or GM. The arbitrator has no authority to issue injunctive relief or determine the amount of damages.

5.2 Making Claims

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5.2.1 The Monetary Claims Process will include two Claim formats: Claim by

1

Written Submission and Claim by Formal Arbitration. A Class Member

can elect to file her Claim in one format only. Claims must be submitted

2

by the Claim Form Submission Deadline. A Claimant may win one Claim

only, and if she has multiple Claims she can assert them in the order she

3

chooses.

4

5.2.2 Choice of law – The law to apply will be Title VII of the Civil Rights Act

of 1964, as amended. 5

5.2.3 By the Effective Date, the Parties will agree on a list of the AGM and GM

6

promotions within the Class Period, including the warehouse number,

location, the date of promotion, the position, and the person selected. 7

5.2.4 As to any Claim, Costco will, 30 days before any deadline applying to the

8

Parties’ submission of papers or deposition, whichever is earlier,

pertaining to the particular promotion in question, produce personnel files

9

for the Claimant and the person selected, and any document explaining the

reasons for that promotion. 10

5.2.5 Process for Filing a Claim 11

5.2.5.1 Any Class Member intending to file a Claim must file the

12

Claim by the Claim Form Submission Deadline.

13

5.2.5.2 The Claim, to be valid, must identify, for each promotion

challenged, the warehouse, the position (AGM or GM), the

14

approximate date of the promotion, and the name of the man

promoted. 15

5.2.5.3 The Claim Form shall identify which promotions the Claimant

16

challenges, in the order of the Claimant’s preference.

17

5.2.5.4 If multiple Claimants challenge the same promotion, then the

priorities established in Section 5.4 will apply. 18

5.3 Number of Challenges – Each Class Member may challenge at least one

19

promotion. A Class Member may make a second challenge provided that she,

immediately before the date of the challenged promotion, had at least five years of

20

continuous experience in the relevant feeder position or comparable Costco

position or big box retail management position. A Class Member may make a

21

third challenge if she was, immediately before the date of the challenged

promotion, continuously employed in a feeder position or comparable Costco

22

position or big box retail management position for ten years at any time since

April 1999. 23

5.4 Overlapping Challenges – A Claimant’s number of months of experience in the

24

relevant feeder position breaks any tie, to avoid multiple challenges to the same

promotion. Nonetheless, if the result of this tie-breaking provision is that a

25

Claimant is left with no promotion to challenge, then she is entitled to challenge

one other promotion not otherwise challenged. 26

5.5 Remedies Available in Monetary Claims Process 27

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5.5.1 The remedies available to Claimants will be limited to economic damages

1

only, resulting from a denial of promotion found to be the result of

unlawful gender discrimination. Otherwise stated, the remedies available

2

do not include compensatory damages, punitive damages, or instatement.

3

5.5.2 Economic damages will be measured by a formula addressing the

difference in salary, bonus, and stock-grant value, plus interest. Claimants

4

shall not be entitled to awards of RSUs or shares of stock, as distinct from

the cash value of such units or shares. 5

5.5.3 Unless the Parties agree otherwise under Section 5.5.7, for the purpose of

6

computing the value of RSUs or stock, the rules and practices applicable

to grants to GMs and AGMs during the class period should be followed,

7

including without limitation rules and practices relating to grants, vesting,

tax withholding, and forfeiture. 8

5.5.4 To determine interest, the Class Administrator will apply non-compounded

9

annual simple interest at a rate of 3% for the years 2002-2006 and 1% for

the years 2007 forward. 10

5.5.5 Damages end as of the date of the arbitrator’s award for a current

11

employee, and as of the date of termination of employment for a former

employee. 12

5.5.6 Evidence of damages will be resolved through stipulations without

13

requiring expert foundation. Costco and Claimant’s counsel will confer to

stipulate, soon after a Claim is submitted, to the amount of the Award that

14

should issue if the arbitrator finds for the Claimant. That stipulation will

include, for tax purposes, an allocation of the amounts between wages and

15

interest.

16

5.5.7 By the Effective Date, the Parties will agree on an economic damages

formula to achieve the purposes of this Section 5.5. If the Parties cannot

17

agree, then they will mediate the matter with Mark Rudy. If they still

cannot agree, then Mark Rudy will resolve the matter by choosing to

18

select either the final formula proposed by Plaintiffs or the final formula

proposed by Costco. 19

5.6 Claimant’s Right to Legal Representation for Monetary Claims Process 20

5.6.1 In making a Monetary Claim, a Claimant may choose to be represented by

21

Class Counsel, who will seek no compensation from her for either legal

fees or expenses, whether she wins or loses her claim. 22

5.6.2 A Claimant is entitled to be represented by counsel other than Class

23

Counsel, under whatever terms she may negotiate with that counsel. But

Costco would not be liable for fees and costs for that lawyer’s work,

24

except as provided in either Section 5.10.6 or Section 5.11.12.

25

5.6.3 If a Claimant chooses to be represented by counsel other than Class

Counsel, that counsel will be given access to the same information and

26

documents obtained by Class Counsel through discovery.

27

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5.6.4 Class Counsel may decline representation of a Claimant where accepting

1

representation would be inconsistent with Class Counsel’s professional

responsibilities. 2

3

4

5.7 Burdens of Proof in Monetary Claims Process 5

5.7.1 The Claimant has the burden to prove by a preponderance of the evidence

6

that she was interested in and qualified for each promotion that she

challenges. For promotions into AGM, a Claimant may make a showing

7

that she was denied, because of her gender, the opportunity to rotate into

the merchandise manager position, which prevented her from being

8

qualified at the time of the promotion.

9

5.7.2 If the Claimant meets her burden, then Costco will have the burden to

prove by a preponderance of the evidence that gender was not a

10

motivating factor in her non-selection for the promotion in question.

11

5.8 Page limitations

12

5.8.1 For briefs and position statements subject to page limitations, the

arbitrator will enforce the page limitations (as to margins, font sizes, line

13

spacing, etc.) by referring to the local rules of the United States District

Court for the Northern District of California. 14

5.9 Context Information Briefs 15

5.9.1 The Parties will submit to the arbitrators simultaneous Context

16

Information Briefs (up to 30 pages) to describe the relevant policies and

practices and any claimed context of the decision-making that either side

17

wishes to advance. Each side will have 30 days to submit a 15-page

response brief. The Parties may attach supporting materials, including

18

documents, statistical analyses, deposition testimony, and expert testimony

and reports. 19

5.9.2 Each Party has another 30 days to submit a reply brief, of ten (10) pages,

20

limited to the scope of any data or documents not previously produced in

the litigation that was the subject of the other Party’s response brief. 21

5.9.3 The Parties shall negotiate in good faith on deadlines for the filing of

22

Context Information Briefs.

23

5.9.4 Each arbitrator has the discretion to decide what weight, if any, the

Context Information deserves. The same Context Information Briefs and

24

accompanying materials will be submitted for each Claim proceeding.

25

5.10 Claim by Written Submission

26

5.10.1 Claims by Written Submission may be confidential or non-confidential.

The confidential option is available only to current employees. 27

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5.10.2 Save for Section 5.9, documentary evidence will be limited to the

1

Claimant’s personnel file, the contested male’s personnel file, and other

documents that the arbitrator finds relevant to the Claimant’s or the

2

selectee’s promotability to the contested position.

3

5.10.3 Each Claimant may present a position statement and supporting materials.

Statements of fact by the Claimant will be made under penalty of perjury.

4

Costco may submit a statement in opposition, and supporting materials.

Statements of fact by Costco will be made under penalty of perjury. The

5

Claimant may file a reply limited to the scope of the opposition and

Costco may submit a sur-reply limited to the scope of the reply. Initial

6

position statements shall not exceed twenty-five (25) pages and further

statements shall not exceed fifteen (15) pages. 7

5.10.4 Non-Confidential Claim by Written Submission 8

5.10.4.1 A Claimant prevailing on an AGM promotion Claim may

9

receive a sum no greater than $150,000.

10

5.10.4.2 A Claimant prevailing on a GM promotion may receive a sum

no greater than $300,000. 11

5.10.5 Confidential Claim by Written Submission – Same as Non-Confidential

12

Document Claims except:

13

5.10.5.1 If a Claimant decides to proceed on a confidential basis for an

AGM Claim, then her current AGM and current GM will not

14

be advised of the class member’s participation in the process.

15

5.10.5.2 If a Claimant decides to proceed on a confidential basis for a

GM Claim, then her current GM and current ROM will not be

16

advised of the Claimant’s participation in the process.

17

5.10.5.3 The arbitrator shall lift confidentiality if Costco demonstrates

that (a) the Claimant has alleged a specific incident as to a

18

relevant AGM, GM, or ROM to support her Claim, or (b) the

relevant AGM, GM, or ROM is the Costco employee best

19

qualified to explain the reasons for the promotion at issue.

20

5.10.5.3.1 If the arbitrator lifts confidentiality because of an

allegation as to a specific incident, then the Claimant

21

will have the choice of (i) converting her confidential

Claim to a non-confidential Claim, (ii) deciding to

22

challenge another promotion without making the

allegation, or (iii) proceeding with the current,

23

confidential Claim without making the allegation.

24

5.10.5.3.2 If the arbitrator lifts confidentiality because the relevant

AGM, GM, or ROM is the Costco employee best

25

qualified to explain the reasons for the promotion at

issue, then the Claimant will have the choice of (i)

26

converting her confidential Claim to a non-confidential

Claim, or (ii) deciding to challenge another promotion. 27

28

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5.10.5.4 If a Claimant, in addressing the need to show her qualification

1

for an AGM promotion, alleges (as per 5.7.1) that she was

denied the opportunity to rotate into the position of

2

merchandise manager because of her gender, then Costco may

put the Claimant to the choice of (i) converting her confidential

3

Claim to a non-confidential Claim, (ii) deciding to challenge

another promotion without making the allegation, or (iii)

4

proceeding with the current, confidential Claim without

making the allegation. 5

5.10.5.5 For Claims submitted on a confidential basis, a class member

6

challenging an AGM promotion may receive a sum no greater

than $25,000. 7

5.10.5.6 For Claims submitted on a confidential basis, a class member

8

challenging a GM promotion may receive a sum no greater

than $50,000. 9

5.10.6 Fees and Costs for Prevailing Claims by Written Submission – Class

10

members who prevail on Claims by Written Submission are entitled to

seek, from Judge Edward Chen at the conclusion of the Monetary Claims

11

Process, an award of attorneys’ fees not to exceed $10,000 costs not to

exceed $1,000 per successful Claimant, to be paid by Costco. The total

12

attorney’s fee award for Claims by Written Submission will not exceed

$750,000. Class Counsel and Costco may informally resolve the fee

13

award without the necessity of a fee motion.

14

5.10.7 The arbitrator will, within thirty (30) days of receiving the Parties’ written

submissions, issue a written decision not to exceed three pages. The

15

decision of the arbitrator is final and not subject to appeal.

16

5.11 Claim by Formal Arbitration

17

5.11.1 The arbitration hearing will be limited to two consecutive days of not

more than 16 hours, and 8 hours for each side. 18

5.11.1.1 The arbitrator will keep track of the time that each side

19

consumes, through presenting argument or interrogating or

otherwise. 20

5.11.1.2 All witnesses shall be duly sworn and subject to cross-

21

examination.

22

5.11.2 The Parties may file ten-page pre-arbitration briefs, beyond the standard

Context Information brief, with supporting materials. At a reasonable time

23

before the hearing, the parties must exchange lists of individuals they

expect to call as witnesses, saving only rebuttal witnesses. Save for

24

Section 5.9, documentary evidence will be limited to the class member’s

personnel file, the contested male’s personnel file, and other documents

25

that the arbitrator finds relevant to the Claimant’s or the selectee’s

promotability to the contested position. 26

5.11.3 Each side can take one deposition, not to exceed four hours. Costco can

27

take a deposition of the Claimant and the Claimant can take a deposition

28

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of any individual Costco identifies as the most knowledgeable about the

1

reasons for the promotion decision in question.

2

5.11.4 Unless otherwise agreed by the Parties, venue of the arbitration will be at a

location closest to the site of the challenged promotion in each of the

3

following cities: Seattle, San Francisco, Los Angeles, Chicago, Houston,

Atlanta, Washington D.C., New York, and Boston. However, unless

4

otherwise agreed by the Parties, Claimants who bring Claims implicating

different geographical regions will have their Claims heard by different

5

arbitrators in the respective locations.

6

5.11.5 The arbitrator will have authority to issue trial subpoenas, but not

discovery subpoenas, except a deposition subpoena per Section 5.11.3

7

upon a showing of good cause. The subpoena power will be limited, with

respect to current Costco employees, to (1) the person selected for the

8

challenged promotion, (2) the decision-maker(s) identified by Costco or

established through discovery, (3) other persons that the Parties agree have

9

material information concerning the promotion at issue, and (4) upon a

showing of good cause, one additional current Costco employee whom the

10

Claimant demonstrates has knowledge that bears directly on her

promotability as to the promotion at issue. For purposes of determining

11

good cause, it is the intent of the Parties not to unduly limit relevant

testimony but rather to ensure that Costco managers and executives are not

12

subpoenaed for any unnecessary or abusive purpose.

13

5.11.6 The Federal Rules of Evidence will govern, except the arbitrator has the

discretion to admit reliable hearsay and waive foundational requirements.

14

The parties will endeavor to resolve all issues concerning the admissibility

and authenticity of documents, other than rebuttal documents, in advance

15

of the arbitration.

16

5.11.7 The arbitration hearing will proceed without being transcribed. There will

be no post-hearing brief. Each side can make a closing argument, within

17

the time limits set out in Section 5.11.1.

18

5.11.8 The arbitrator will issue a written decision not to exceed three pages

within ten (10) business days of the arbitration. 19

5.11.9 The decision of the arbitrator is final and not subject to appeal. 20

5.11.10 A Claimant prevailing on an AGM promotion Claim by Formal

21

Arbitration may receive a sum no greater than $250,000.

22

5.11.11 A Claimant prevailing on a General Manager promotion Claim by

Formal Arbitration may receive a sum no greater than $600,000. 23

5.11.12 Attorneys’ Fees and Costs For Prevailing Claims in Formal Arbitration –

24

Claimants who prevail on Claims by Formal Arbitration are entitled to

seek an award of reasonable attorneys’ fees and costs, to be paid by

25

Costco, from Judge Edward Chen at the conclusion of the Monetary

Claims Process. Class Counsel and Costco may informally resolve the fee

26

award without the necessity of a fee motion.

27

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5.12 Aggregate Award Amounts And Settlements Exceeding Net Settlement Fund –

1

To the extent that the total Award Amounts or Settlements exceed the Net

Settlement Fund, they will be reduced pro rata. 2

5.13 Total Award Amounts And Claim Settlements Amounting to Less than Net

3

Settlement Fund

4

5.13.1 Claim Settlements. Costco and any Claimant may, in lieu of awaiting an

Award, agree to settle a Claim. The amount of a Claim Settlement is not

5

subject to an enhancement as per Section 5.13.2 or otherwise. A Claim

Settlement will be paid from the Net Settlement Fund, and is subject to a

6

potential pro rata reduction per Section 5.12. This provision does not

apply to any settlement of a claim brought pursuant to Section 10.2. 7

5.13.2 Enhancement of Awards Up to Second Cap – If Award Amounts in the

8

aggregate do not reach the amount of the Net Settlement Fund, then

individual Award Amounts will be increased as follows. Each Claimant

9

with economic damages greater than the applicable individual cap will

receive the full amount of those damages up to the first caps, plus an

10

additional amount of her economic damages, up to the following Second

Caps: for confidential written Claims, $12,500 AGM and $25,000 GM; for

11

non-confidential written Claims, $100,000 AGM and $200,000 GM; and

for formal arbitration, $175,000 AGM and $300,000 GM. If, as a result of

12

crediting these additional amounts the aggregate of Award Amounts

would exceed the Net Settlement Fund, then the additional Award

13

Amounts would be reduced pro rata to ensure that the Award Amounts in

the aggregate equal the net settlement fund. 14

5.13.3 Distribution of Excess After Application of Second Cap – See Section 3.5. 15

5.14 Confidentiality of Monetary Claims Process Outcomes 16

5.14.1 All outcomes in the Monetary Claims Process will be confidential, and

17

may not, absent court order, be used in any subsequent proceeding.

18

5.14.2 Should the Court require either party to submit information about the

Monetary Claims Process outcomes, the Parties shall jointly seek the

19

Court’s permission to file the information under seal.

20

5.14.3 Confidentiality of Awards

21

5.14.3.1 The “Notice of Class Action Settlement” will inform Class

Members that the Awards and Award Amounts are

22

confidential.

23

5.14.3.2 Upon filing a Claim, a Claimant will execute a specific

confidentiality agreement. Witnesses presented by either side

24

will execute a similar agreement before or during the

arbitration proceeding. The Claimant will execute a further

25

confidentiality agreement if the Claim is resolved in her favor.

26

5.14.3.3 The confidentiality agreements will advise the Claimant or the

witness of the legal consequences resulting from any breach of 27

28

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confidentiality as to whether the arbitrator ruled for Costco or

1

for the Claimant, as described below.

2

5.14.3.4 Costco may not sue for a breach of confidentiality unless it

receives, from the arbitrator who decided the Claimant’s

3

Claim, a certificate that Costco has good cause to believe that

the Claimant has breached the confidentiality agreement. 4

5.14.3.5 If, after receiving the certification from the arbitrator, Costco

5

proves in a court in the Claimant’s home jurisdiction by clear

and convincing evidence that the Claimant breached the

6

confidentiality agreement, then she will be liable for liquidated

damages in the amount of 20% of the Award Amount. If

7

Costco does not prevail, then Costco will pay the Claimant’s

reasonable attorneys’ fees and costs. 8

5.14.3.6 The Claimant may not sue for a breach of confidentiality unless

9

she receives, from the arbitrator who decided her Claim, a

certificate that she has good cause to believe that Costco has

10

breached the confidentiality agreement.

11

5.14.3.7 If, after receiving the certification from the arbitrator, the

Claimant proves in a court in the Claimant’s home jurisdiction

12

by clear and convincing evidence that Costco breached the

confidentiality agreement, then Costco will be liable for

13

liquidated damages in the amount of 20% of the Award

Amount or, in the event that the Award was in favor of Costco,

14

$25,000. If the Claimant does not prevail, then the Claimant

will pay Costco’s reasonable attorneys’ fees and costs. 15

5.14.3.8 Nothing in this provision restricts any Party from seeking

16

appropriate injunctive relief for breach of confidentiality.

17

5.14.3.9 Nothing in this provision prohibits a Party to disclose Awards

and Award Amounts (a) to persons for whom such information

18

is necessary to effectuate the provisions of the Agreement (and

who shall be advised of its confidentiality and agree to this

19

provision), (b) to those employees and outside professional

advisors (e.g., accountants, lawyers, tax advisors) who need to

20

be aware of this Agreement or its terms in the ordinary course

of business to perform their duties and to properly advise the

21

parties, (c) to the extent such disclosure is required for

enforcement of this Agreement, (d) as required by federal or

22

state law or other applicable laws or rules, including, for

example, compliance with legally authorized discovery

23

procedures or the notice requirements of securities laws, (e) to

Costco’s corporate affiliates, and (f) the Claimant’s immediate

24

family members (who shall be advised of confidentiality and

agree to this provision). 25

5.15 Statute of Limitations 26

Any Claim challenging a promotion to AGM or GM is time-barred if the promotion was

27

filled prior to January 3, 2002.

28

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6. 1 2 3 4 5 6 7 8 9 10 11
7. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Release of Claims by Class Members
6.1 The settlement, upon the Effective Date, will release all Claims for systemic injunctive relief for the Claims alleged in the case on behalf of the Injunctive Relief Class.
6.2 Class Members who submit Claims through the Monetary Claims Process shall, as of the date of their Claims, thereby release any Claim for failure to promote to AGM or GM not pursued through that process.
6.3 Each Member of the Monetary Relief Class who does not Opt Out and who does not submit a timely Claim will, by operation of the law and this Agreement, release, as of the Claim Form Submission Deadline, any claim that Costco, on the basis of her gender, denied her promotion to AGM or GM at any time since January 3, 2002.
6.4 Upon Final Approval, a judgment shall be entered dismissing, with prejudice, all claims of Class Members for denial of promotion to AGM or GM.
6.5 The Court will retain jurisdiction to enforce the Parties’ rights and obligations under this Agreement. See Section 14.
Class Administration
7.1 The Class Administrator will discharge all duties customarily required of a class administrator, including, without limitation, mailing notices and calculating any required payments.
7.2 Within ten (10) days of the Effective Date, the Class Administrator will establish a Qualified Settlement Fund for the administration of any payments to be made under this Agreement. The Class Administrator will consult with the Parties regarding the methods for funding and distributing any payments.
7.3 The expenses of the Class Administrator shall be borne by the Gross Settlement Fund.
7.4 Within twenty-one (21) days of the complete funding of the Gross Settlement Fund (see Section 3.2), the Class Administrator will calculate the amount owing, if any, to each Claimant. The Claims Administrator will provide Class Counsel and Costco with a proposed distribution schedule, which each side will approve or propose any corrections to within five (5) business days. The Claims Administrator will then generate and mail checks to Claimants. Check distribution shall be accomplished by a first-class mailing to the last known address of record.
7.5 All checks shall expire one hundred-twenty (120) calendar days after initial issuance by the Class Administrator.
7.6 Class Notice Claims and Opt-Out Processes
7.6.1 The Class Administrator shall administer the notice program.
7.6.2 Costco will, within seven (7) days of Preliminary Approval, give the Class Administrator the names, social security numbers, and last-known postal
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addresses of all Class Members. Class Counsel will provide any updated

1

addresses to the Class Administrator. The Class Administrator may take

reasonable steps to determine the most recent address of each Class

2

Member.

3

7.6.3 The Class Administrator will mail the Notice Packet to Class Members by

post-marked First Class U.S. Mail within seven (7) calendar days of

4

receiving Costco’s list of the names and addresses.

5

7.6.4 The Notice Packet will include the Notice of Class Action Settlement and

the Opt-Out Form. The Parties will, prior to Final Approval, agree to the

6

content of Claims Form, using the same resolution process as provided in

Section 5.5.7. 7

7.6.5 The Notice of Class Action Settlement shall be substantially in the form

8

attached hereto as Exhibit 1.

9

7.6.6 Opt Outs. The Opt-Out Form shall be substantially in the form copied as

Exhibit 2. Class Members will have sixty (60) days from the date of the

10

mailing of the Notice Packet in which to postmark their notice of opting

out (the “Opt-Out Deadline”). Any Class Member who does not timely

11

request exclusion shall be bound by the terms of this Agreement.

12

7.6.6.1 To the extent permitted by rules of professional responsibility,

Class Counsel shall not solicit representation of Opt Outs in

13

order to sue Costco.

14

7.6.6.2 The Parties will not encourage or attempt to influence any

Class Member to opt out or to object to the settlement. Nothing

15

in this provision will limit the ability of Class Counsel to

provide legal advice to Class Members, upon their request,

16

about their options under the Settlement Agreement and the

Notice of Class Action Settlement. 17

7.6.6.3 Nothing herein inhibits in any way the ability of Class Counsel

18

or other counsel to represent Settlement Class Members who

wish to prosecute Claims under Section 5. 19

7.6.7 Objectors. Class Members shall have sixty (60) days from the date of

20

mailing of the Notice Packet in which to postmark their notice of objection

to the Settlement. Any Class Member who does not timely serve an

21

objection by the Objection Deadline shall be deemed to have waived any

objection thereto. Any Class Member filing a written Objection has the

22

right to appear at the Fairness Hearing in person or through her own legal

representative. She or her representative must notify the Class

23

Administrator of her intention to appear and present her objection at least

ten (10) days prior to the Fairness Hearing. 24

7.6.8 To provide the best notice practicable, any Notice Packet returned to the

25

Class Administrator as non-delivered shall be sent by post-marked First

Class U.S. Mail to any forwarding address provided on the returned letter,

26

if any. If no forwarding address is provided for a Notice Packet that is

returned as non-deliverable, within two (2) days of receipt of any

27

undeliverable Notice Packet, the Class Administrator will search to locate

28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
8. 25 26 27 28

a current address and will then mail the Notice Packet to the current address. If no current address is located, then the Notice Packet for that individual will be deemed undeliverable.
7.6.9 The entire period for objecting to the Settlement and timely submitting Opt-Out forms shall not exceed sixty (60) days from the date that the Class Administrator finishes the first mailing of the Notice Packet to the Class.
7.6.10 The Class Administrator shall record postmark dates for the original mailing of the Notice Packet, the mailing of later Notice Packets following a reliable computer search method, and the Class Members who did not receive a Notice Packet for want of a valid address.
7.6.11 Costco is responsible, at its own expense, to give notices to the relevant government agencies as required by the Class Action Fairness Act (CAFA). Costco will cause the CAFA notice and exhibits to be mailed no later than 10 days after the Court has issued the Preliminary Approval Order.
7.6.12 Upon completion of administration, the Class Administrator shall provide written certification of such to counsel for the Parties.
7.6.13 Minimization of Administrative Costs. The Parties agree to make all reasonable efforts to minimize the costs of administering this Agreement.
7.6.14 All mailings to Class Members shall be by First Class U.S. Mail, with a postmark date on the envelope for each individual mailing.
7.7 Tax Treatment and Reporting Of Award Amount Payments
7.7.1 The Class Administrator shall pay to appropriate taxing authorities any applicable taxes that must be withheld for the Claimants, including employee FICA taxes.
7.7.2 The Class Administrator will ensure that payment of wages, subject to withholdings required by law, will be reported on IRS Form W2.
7.7.3 The Class Administrator will ensure that payments of Service Payments and interest, if any, will be reported appropriately on IRS Form 1099 or otherwise.
7.7.4 Settlement Class Members will be responsible for any individual taxes due on payments to them pursuant to this Agreement
7.7.5 Costco will be responsible for paying the employer’s share of all applicable payroll taxes.
Procedure for Court Approval and Class Notice
8.1 Once this Agreement is fully executed, the Parties shall take all necessary steps to obtain preliminary approval. The Parties will confer on the form of the proposed order for preliminary approval. The Parties shall cooperate in Plaintiffs’ filing of a
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1 2 3 4 5 6 7
9. 8 9 10 11 12
10. 13 14 15 16 17 18 19 20 21 22 23
11. 24 25 26 27 28

motion for preliminary approval as soon as practicable, in any event no later than December 17, 2013.
8.2 The proposed form of Preliminary Approval Order shall set a date for a hearing (“Fairness Hearing”) of May 22, 2014, at which the Court will determine whether the proposed Settlement should be finally approved as fair, reasonable, adequate, and in the best interests of the Settlement Class Members; and whether a final judgment should be entered dismissing all Claims in the Action with prejudice, subject to Section 14.
8.3 If the Court does not approve this Agreement, then the Agreement will terminate and be of no effect, unless the Parties agree to modify this Agreement in a manner necessary to obtain Court approval.
Costco’s Right to Rescind
9.1 If ten or more Class Members opt out, or if the United States Equal Employment Opportunity Commission initiates any enforcement proceeding alleging gender discrimination in connection with promotions that are the subject of this Action, then Costco, at its option, may rescind the Settlement Agreement.
9.2 Costco may exercise its right to rescind at any time up to ten (10) days before the date of Final Approval.
Relief for the Named Plaintiffs
10.1 The named plaintiffs (Ellis, Horstman, and Sasaki), may pursue rights in addition to those available to class members generally, by choosing to proceed under either 10.2 or 10.3 below.
10.2 A named plaintiff may choose to adjudicate her Claims asserted against Costco in this litigation by trial before Judge Edward Chen. Any back pay, damages, interest or attorneys’ fees awarded on these Claims will not be taken out of the Gross Settlement Fund. All Parties reserve whatever rights to jury trial they have.
10.3 A named plaintiff may, in lieu of proceeding under Section 10.2 and seeking all the Claims asserted in the complaint, choose to submit only her promotion Claims through the Monetary Claims Process described herein. Any damages awarded on these Claims will be taken out of the Gross Settlement Fund.
10.4 In addition, the named plaintiffs may ask the district court to award to each of them a service payment of up to $10,000 to be paid from the Gross Settlement Fund. This service payment is not damages for discrimination, which Costco denies, but rather compensation for services that the named plaintiffs have rendered to the class.
Attorneys’ Fees and Costs
11.1 Costco has no obligation under this Agreement to pay for the attorneys’ fees or costs of Plaintiffs or Class Members, except as expressly set forth in this Agreement, including Sections 5.10.6, 5.11.12, 10.2, or 11.2
11.2 Plaintiffs may, in connection with their motion for Preliminary Approval, apply for an award of reasonable attorneys’ fees and costs for the litigation up to the
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1 2 3 4 5 6 7 8 9 10
12. 11 12 13 14 15 16 17
13. 18 19 20 21 22 23 24 25 26 27 28

date of final approval of the Class Action Settlement, to be paid by Costco. Plaintiffs may also seek an award of reasonable attorneys’ fees and costs for their anticipated services in monitoring and administrating the settlement, to be paid by Costco. Subject to any other order of the Court regarding timing of the motion, Class Counsel will submit a motion for an award of such fees and costs to the district court in conjunction with the motion for preliminary approval of the settlement.
11.3 No attorneys’ fees or costs to Class Counsel can be awarded without approval of this Class Action Settlement Agreement. But approval of this Class Action Settlement Agreement is not conditioned on the award of attorneys’ fees or costs to Class Counsel. Provisions of the Class Action Settlement Agreement for the award of attorneys’ fees are severable from the remaining provisions.
11.4 Fees awarded pursuant to Section 11.2 shall be paid by Costco to Class Counsel within thirty (30) days of the day on which no timely appeal of the Final Approval is still possible. Fees awarded in an order pursuant to Sections 5.10.6, 5.11.12, or 10.2 shall be paid by Costco to Class Counsel within thirty (30) days of the day on which no timely appeal from that order is still possible.
Publicity
12.1 The Parties and their counsel will not initiate any comments to the media regarding the Agreement and will limit their comments to the media to the following effect: “We can confirm that the parties have submitted a proposed settlement agreement for the court’s approval. Under the terms of their agreement, the parties have agreed not to share any details and to instead refer the media to the court papers on file.”
12.2 Beyond the foregoing, nothing in this Agreement will be construed to limit Class Counsel in exercising whatever rights they may have to comment on the fact of their representation in this case or to refer to public information concerning the litigation.
Compliance Procedure
13.1 The Court will, upon the written request of any Party, appoint, pursuant to Federal Rule of Civil Procedure 53 (“Rule 53”) a Compliance Special Master to provide oversight of the implementation by Costco of the terms in this Agreement.
13.2 Costco will submit, on each of two anniversaries of the Implementation Date, a report to Class Counsel. The report will include status information on the work of the Independent Consultant, and statistical information by gender of applicants for AGM positions, candidates interviewed for AGM positions, and employees selected for AGM and GM positions. In addition, Costco will provide information that it otherwise prepares in the normal course of business on attrition by gender from the AGM and GM positions.
13.3 Within thirty (30) calendar days of the submission of the report, Costco and Class Counsel will confer on whether Costco has exercised good faith in complying with its obligations under the terms of the Settlement Agreement. If the Parties disagree, then Class Counsel will submit to the Compliance Special Master, within fifteen (15) calendar days, a statement of position contending that Costco has failed to act in good faith with respect to complying with its obligations under
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the Settlement Agreement. Costco may, within fifteen (15) days of receiving that

1

statement of position, submit its response to the Compliance Special Master.

2

13.4 Within thirty (30) days of receiving the Parties’ submissions, the Compliance

Special Master will conclude in writing either that Costco has met its obligation to

3

act in good faith under this Agreement, or inform the Parties of any aspect of non-

compliance in that regard. 4

13.5 If Class Counsel fail to demonstrate to the Compliance Special Master that Costco

5

has failed to act in good faith, then no further action is required at that time. Class

Counsel may file objections to the Compliance Special Master’s conclusion as

6

described below.

7

13.6 If Class Counsel demonstrates to the Compliance Special Master that Costco has

failed to act in good faith, then Costco will promptly bring itself into compliance.

8

In the alternative, Costco may file objections to the Compliance Special Master’s

conclusion as described below. 9

13.7 Pursuant to Rule 53, the Parties may file objections to the Compliance Special

10

Master’s recommendation with the Court no later than twenty-one (21) days after

a copy of the Compliance Special Master’s recommendation is served. 11

13.8 The fees and costs of the Compliance Special Master will be paid by Costco. 12

13.9 Dispute Resolution 13

13.9.1 The Parties will work diligently and in good faith to resolve all disputes

14

that may arise during the term of this Agreement concerning the rights,

obligations and duties of the Parties to this Agreement. 15

13.9.2 If the Parties cannot resolve their dispute, then they will mediate the

16

dispute within thirty (30) calendar days. Absent other agreement, Mark

Rudy shall mediate the dispute. Costco will pay the costs of mediation. 17

13.9.3 If mediation is unsuccessful, then the Parties will, within seven (7)

18

calendar days, submit a joint statement to the Compliance Special Master

describing the Parties’ dispute and each Party’s position on how the

19

dispute should be resolved. The Compliance Special Master will then,

within fourteen (14) days of receipt of the Parties’ submission, resolve the

20

dispute in writing. If the Compliance Special Master determines that

Costco has not acted in good faith with regard to Section 4 of this

21

Agreement, then the Compliance Special Master may order Costco to

come into compliance. 22

13.9.4 Pursuant to Rule 53, either party may file comments or objections to the

23

Compliance Special Master’s conclusion with the Court no later than

twenty-one (21) days after a copy of the Compliance Special Master’s

24

conclusion is served.

25

13.9.5 Nothing in this Settlement Agreement authorizes any court or master to

impose any change in Costco’s GM selection process. 26

27

28

26 AMENDED CLASS ACTION SETTLEMENT

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14. 1 2 3 15. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Retention of Jurisdiction
14.1 The Court will retain jurisdiction of this matter after these claims are dismissed to enforce the terms of this Class Action Settlement Agreement.
Miscellaneous Provisions
15.1 No Admissions
This Agreement shall not constitute an admission on behalf of Costco of any form of liability or the accuracy of any allegations against it.
15.2 No Third Party Rights
Nothing in this Agreement creates rights for any person other than the Parties. The right to enforce this Agreement is vested exclusively in the Parties. The Parties will cooperate with each other to resist any efforts by non-parties to enforce this Agreement.
15.3 No Retaliation
Costco agrees it will not retaliate against any Class Member because of participation in this Settlement, or because of receiving any award in connection with this Agreement, or otherwise because of being a Class Member in this Action.
15.4 Advice of Counsel
The Parties agree that this Agreement reflects a good-faith compromise of all Claims raised in this Action, based upon their assessment of the mutual risks and costs of further litigation and the assessments of their respective counsel.
15.5 Extensions of Time
Unless otherwise ordered by the Court, the Parties may jointly agree, in a writing executed by counsel for the Parties, to reasonable extensions of time to carry out any provisions of this Agreement.
15.6 Integration
This Agreement, including all exhibits, constitutes a single, integrated written contract expressing the entire agreement of the Parties relative to the subject matter hereof. No covenants, agreements, representations, or warranties of any kind whatsoever have been made by any Party hereto, except as provided for herein.
15.7 Representative Capacity
Each person executing this Agreement in a representative capacity represents and warrants that he or she is empowered to do so.
15.8 Counterparts
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, even though all Parties do not sign the same counterparts. Copies and facsimile transmission of signatures shall be considered the same as original signatures.
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15.9 Cooperation of Parties 1

The Parties to this Agreement agree to prepare and execute all documents, to seek Court

2

approvals, to defend Court approvals, and to do all things reasonably necessary to

complete the Settlement described in this Agreement and to secure approval of the

3

Settlement, including without limitation, seeking such relief from any stay of proceedings

as may be warranted to secure approval of the Settlement through the trial court. 4

15.10 Notifications 5

15.10.1 All notices to Class Counsel provided for herein shall be sent by

6

electronic mail to Jocelyn Larkin at The Impact Fund, with hard copies by

U.S. mail. 7

15.10.2 All notices to Costco provided for herein shall be sent by electronic mail

8

to Ken Youmans and David Kadue at Seyfarth Shaw LLP, with hard

copies by U.S. mail. 9

15.10.3 Upon the request of any Party, the Parties and the Class Administrator

10

agree to promptly provide each other copies of all objections, requests for

exclusion, or other filings received in response to the Notice Packet. 11

15.10.4 This Agreement may be modified only by a written instrument signed by

12

the Parties’ counsel and approved by the Court.

13

15.11 Time

14

Any calculation of time shall be in accordance with the Federal Rules of Civil Procedure.

15

16 AGREED AND ACCEPTED AS OF DECEMBER 17, 2013, AS AMENDED EFFECTIVE

17 JANUARY 30, 2014.

18 FOR PLAINTIFFS AND THE CERTIFIED CLASSES:
19

20
21 Jocelyn D. Larkin The Impact Fund
22

23 Elaine Sasaki
24 Named Plaintiff
25

26 Shirley “Rae” Ellis
27 Named Plaintiff

28

28 AMENDED CLASS ACTION SETTLEMENT

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1 2 Leah Horstman 3 Named Plaintiff 4 5 FOR DEFENDANT COSTCO WHOLESALE CORPORATION: 6 ____________________________________
Richard J. Olin 7 Senior Vice President and General Counsel 8 ___________________________________
David D. Kadue 9 Seyfarth Shaw LLP 10 16745949v.3 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
29 AMENDED CLASS ACTION SETTLEMENT

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15.9 Cooperation of Parties 1

The Parties to this Agreement agree to prepare and execute all documents, to seek Court

2

approvals, to defend Court approvals, and to do all things reasonably necessary to

complete the Settlement described in this Agreement and to secure approval of the

3

Settlement, including without limitation, seeking such relief from any stay of proceedings

as may be warranted to secure approval of the Settlement through the trial court. 4

15.10 Notifications 5

15.10.1 All notices to Class Counsel provided for herein shall be sent by

6

electronic mail to Jocelyn Larkin at The Impact Fund, with hard copies by

U.S. mail. 7

15.10.2 All notices to Costco provided for herein shall be sent by electronic mail

8

to Ken Youmans and David Kadue at Seyfarth Shaw LLP, with hard

copies by U.S. mail. 9

15.10.3 Upon the request of any Party, the Parties and the Class Administrator

10

agree to promptly provide each other copies of all objections, requests for

exclusion, or other filings received in response to the Notice Packet. 11

15.10.4 This Agreement may be modified only by a written instrument signed by

12

the Parties’ counsel and approved by the Court.

13

15.11 Time

14

Any calculation of time shall be in accordance with the Federal Rules of Civil Procedure.

15

16 AGREED AND ACCEPTED AS OF DECEMBER 17, 2013, AS AMENDED EFFECTIVE

17 JANUARY 30, 2014.

18 FOR PLAINTIFFS AND THE CERTIFIED CLASSES:
19

20
21 Jocelyn D. Larkin The Impact Fund
22

23 Elaine Sasaki
24 Named Plaintiff
25

26 Shirley “Rae” Ellis
27 Named Plaintiff

28

28 AMENDED CLASS ACTION SETTLEMENT

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AGREED AND ACCEPTED AS OF DECEMBER 17,2013 \ \1 I ) II I ( I VI

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FOR PLAINTIFFS AND THE CERTIFIED CLASSES:

/
Jocelyn D. Larkin The Impact Fund

Elaine Sasaki Named P . tiff

Shirl

e" His

Named Plaintiff

Leah Horstman Named Plaintiff
FOR DEFENDANT COSTCO WHOLESALE CORPORATION:
Richard J. Olin Senior Vice President and General Counsel
David D. Kadue Seyfarth Shaw LLP I 16745949v.3

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EXHIBIT 1

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ELLIS V. COSTCO WHOLESALE CORP., NO. 04-3341
If you are a woman and are (or were) employed in a U.S. Costco warehouse as a Senior Staff Manager or Assistant General Manager,
then a proposed class action settlement could affect your rights.
If you take no action, you will be bound by the settlement. Your rights will be impacted.
The federal court authorized this notice.
 Read this notice carefully. This notice is different from the notice that you may have received in December 2012. This notice explains the lawsuit, the settlement, and your legal rights.
 This notice describes a proposed class action settlement that, if approved by the Court, would provide for certain changes in Costco’s system for promotions to Assistant General Manager (“AGM”) and for an assessment of possible changes in Costco’s system for promotions to General Manager (“GM”). (See Section 7)
 The proposed settlement, if approved by the Court, also would create an arbitration claims process in which women may make claims for economic damages resulting from unlawful denial of promotions because of their sex. Unless you win your claim, you will not receive any money. The proposed settlement provides a fund to compensate women who bring successful claims. (See Section 8).
 The court has not decided whether Costco did anything wrong. But your legal rights may be affected, and you have a choice to make now:

YOUR LEGAL RIGHTS AND OPTIONS

DO NOTHING; REMAIN PART OF THE SETTLEMENT

If you are satisfied with the terms of the proposed settlement, then you do not need to do anything now. If the Court approves the settlement, then you will receive a claims notice. You can file a claim seeking money in a claims process if you believe you were unlawfully denied a promotion because of your sex, or you can choose not to file a claim. An arbitrator will decide if your claim has merit.

OPT OUT

If you want to file your own lawsuit against Costco for sex discrimination for denying you an AGM or GM promotion, or if you do not want to be bound by this lawsuit, then you should exclude yourself (“opt-out”) from the settlement.

OBJECT

If you are not satisfied with the terms of the proposed settlement, then you may write about that to the Class Administrator. You may also appear in Court to explain why you don’t like it.

 These rights and options—and the deadlines to exercise them—are explained in this notice.

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Page
WHAT THIS NOTICE CONTAINS
Basic Information - 1 1. Why Did I Get This Notice? ..................................................................................... - 1 2. What Is This Lawsuit About? ................................................................................... - 1 3. What Is a Class Action? ............................................................................................ - 1 4. Why Is There a Settlement? ...................................................................................... - 1 5. How Do I Know If I am Part of the Settlement? ...................................................... - 1 The Proposed Settlement — Essential Terms ........................................................................ - 2 6. What Are the Terms of the Proposed Settlement?....................................................- 2 Program Changes...................................................................................................................... - 2 7. What Changes Will Costco Make to the AGM and GM Promotion
System? ..................................................................................................................... - 2 The Claims Process ................................................................................................................... - 3 -
8. How Does the Claims Process Work? ...................................................................... - 3 9. How Much Will I Get If I Win?................................................................................- 3 10. What Happens If I Lose My Claim? ......................................................................... - 4 11. How Does the Claims Process Differ from Having My Own Case in
Federal Court?...........................................................................................................- 4 12. Do I Need to Decide Now Whether to File a Claim or Which Kind of
Claim to File?............................................................................................................- 4 13. Can I Get Help in Deciding What Kind of Claim to File? Will I Have a
Lawyer in the Claims Process? ................................................................................. - 4 14. Will My Job or Future Promotions Be Affected If I Participate in the
Claims Process? ........................................................................................................ - 5 15. Can I File a Claim If I Have Been Promoted to AGM or GM But I
Believe That I Should Have Been Promoted Sooner? .............................................. - 5 16. If I Win, Then Can The Arbitrator Order Costco to Promote Me?...........................- 5 17. Can I Make a Confidential Claim? ........................................................................... - 5 18. If I Win My Claim, Then When Would I Get My Payment? ................................... - 6 19. If I Win My Claim, Then Will Everyone Know How Much I Got? Or,
If I Lose My Claim, Will Everyone Know that I Lost? ............................................ - 6 20. Under What Circumstances Can My Award Be Increased or
Decreased? ................................................................................................................ - 6 -
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21. What Happens If The Total of The Award Amounts Is Less Than $8 Million?.....................................................................................................................- 6 -
22. What Claims Are Released by the Settlement? ........................................................ - 7 Named Plaintiffs........................................................................................................................- 7 -
23. What Can the Three Named Plaintiffs Get Under the Settlement? ......................... - 7 The Lawyers Representing You .............................................................................................. - 7 -
24. Do I have a Lawyer in this Case? ............................................................................. - 7 25. How Will the Lawyers be Paid? ............................................................................... - 7 Opting Out of the Settlement ................................................................................................... - 8 26. Who Should Opt Out of the Class?...........................................................................- 8 27. How Do I Opt Out of the Class? ............................................................................... - 8 Objecting to the Settlement......................................................................................................- 8 28. How Do I Tell the Court That I Don’t Like the Settlement? .................................... - 8 29. What’s the Difference Between Objecting and Opting Out?....................................- 9 The Court’s Fairness Hearing ................................................................................................. - 9 30. When and Where Will the Court Decide Whether to Approve the
Settlement?................................................................................................................- 9 31. Do I Have to Come to the Hearing?.......................................................................... - 9 32. May I Speak at the Hearing?.....................................................................................- 9 If You Do Nothing ..................................................................................................................... - 9 33. What Happens if I Do Nothing at All? ..................................................................... - 9 Getting More Information ..................................................................................................... - 10 34. How Do I Get More Information? .......................................................................... - 10 -
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BASIC INFORMATION
1. Why Did I Get This Notice?
Costco’s records show that you now work for Costco as either a Senior Staff Manager or an AGM in a U.S. warehouse, or have worked in one of those positions at some time on or after January 3, 2002.
This notice advises you of a proposed settlement of this class action lawsuit, and about your options, before the Court decides whether to approve the settlement. If the Court approves the settlement, and after objections and appeals (if any) are resolved, then there will be a claims process and arbitrators will decide who, if anyone, was unlawfully denied an AGM promotion or a GM promotion because of her sex and entitled to compensation.
2. What Is This Lawsuit About?
This lawsuit claims that Costco unlawfully discriminated against female employees based on their sex, by denying them opportunities for promotion to AGM or GM.
Costco denies it did anything wrong and no court has found that Costco did anything wrong. Costco retains its right to defend itself against any claim brought against it.
3. What Is a Class Action?
In a class action, one or more people, called Named Plaintiffs (in this case, Shirley “Rae” Ellis, Leah Horstman, and Elaine Sasaki), bring a lawsuit on behalf of people who a court finds have similar claims. These people, considered members of the same Class, are called Class Members. One court resolves the case for all Class Members, except for those who exclude themselves from the Class.
4. Why Is There a Settlement?
The Court did not decide in favor of Plaintiffs or in favor of Costco. Instead, both sides agreed to a settlement to avoid a court trial, to provide a process to re-evaluate and change, as appropriate, the promotion process, and to create a way to resolve money claims through a relatively quick arbitration process. The Named Plaintiffs and the attorneys appointed to represent the Class think the settlement is best for everyone in the Class.
5. How Do I Know If I am Part of the Settlement?
The class is defined as all current or former female Costco employees employed at any U.S. Costco warehouse at any time on or after January 3, 2002 who have ever been Senior Staff Managers or Assistant General Managers.
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Some women who have already excluded themselves from the lawsuit (called “opting out”) are not Class Members and are not part of the settlement.
If you aren’t sure about your status, then you can contact Class Counsel at 1-866-501-2300 or at the email address below or the Class Administrator at the address identified in Section 28 below.
THE PROPOSED SETTLEMENT — ESSENTIAL TERMS
6. What Are the Terms of the Proposed Settlement?
The settlement provides a process to evaluate and implement program changes and an arbitration process to resolve claims of discriminatory denial of promotions.
Program Changes - Costco will implement job posting for AGM vacancies and will permit AGMs to formally register interest in specific GM positions. Costco will, in good faith, consider changes in its processes for making promotions to AGM and GM.
Claims Process for Money - If you bring a claim and an arbitrator decides that you were denied an AGM or GM promotion because of your sex, then you will receive compensation. The proposed settlement would create an $8 million fund, from which any successful claimants would be paid. (For more description, see Sections 18-22).
PROGRAM CHANGES
7. What Changes Will Costco Make to the AGM and GM Promotion System?
(1) An agreed-upon outside expert will analyze the AGM and GM jobs, evaluate the promotion process for these jobs, and recommend to Costco written selection criteria and tools for the AGM and GM promotion process.
(2) Costco has agreed to post openings for AGM promotions within the geographic area where the opening occurs and candidates who meet the posted qualifications will be allowed to apply for the position.
(3) Costco has agreed to implement a system that will allow AGMs to register an interest in GM positions in specific warehouses. Costco will consult the list of those who have registered an interest in that warehouse when it makes a GM selection. Registering an interest will help ensure that Costco is aware of who is interested in being considered for the promotion.
(4) Costco will offer a merchandising training class for current Senior Staff managers who have not received merchandising experience relevant to promotion to AGM as a way of encouraging acquisition of that experience.
(5) Costco will communicate with and train its managers concerning any program changes.
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(6) Costco will submit reports about these changes for two years after they are made. These changes will apply to both women and men applying for promotions to AGM and GM.
THE CLAIMS PROCESS
8. How Does the Claims Process Work?

You will have two different ways to make a claim if you choose to make one. You can make a written claim (called a Claim by Written Submission) or you can make a claim in person before a neutral arbitrator (called a Claim by Formal Arbitration).
If you are a current employee, then you also may choose to make a written claim confidentially so that your current AGM and GM (if you are a Senior Staff Manager) and your GM and Regional Operating Manager (if you are an AGM), will not know you are making a claim.
Every Claimant can challenge at least one specific promotion that she did not receive. She may challenge up to two additional promotions if she meets certain experience requirements stated in Section 5.3 of the Settlement Agreement.
The arbitrator will be given information about why you believe that you were interested and qualified for promotion to a specific AGM or GM position and why you believe the decision not to promote you to that position was a result of unlawful sex discrimination. Costco, too, may submit information to the arbitrator that Costco believes shows that your sex was not a factor in the decision not to promote you to that position. The arbitrator will decide whether or not you were denied promotion because of your sex.
If you choose, Class Counsel will represent you. If you win your claim, then Class Counsel will be entitled to ask that certain fees and costs be paid by Costco. You may instead hire your own lawyer and, if you win your claim, your lawyer will be entitled to ask that certain fees and costs be paid by Costco.
Whether you win or lose, you will not be charged any fee for participating in the claims process.
9. How Much Will I Get If I Win?

If you win, you will receive your actual losses up to a cap: lost salary, bonus, and the value of restricted stock units plus interest. Under certain circumstances, your award amount may be increased up to a second cap or decreased, which is explained in Section 20.

Type of Claim
Written Written

Denial of Promotion into Which Position AGM GM

Actual Damages Up to First Cap
$150,000 cap $300,000 cap

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Arbitration Arbitration

AGM GM

$250,000 cap $600,000 cap

Lower award amounts apply if you make a confidential claim. (See Section 17.) The settlement does not provide for an award of emotional distress or punitive damages.

10. What Happens If I Lose My Claim?

You will receive no money if the arbitrator finds that your claim is not valid.
11. How Does the Claims Process Differ from Having My Own Case in Federal Court?

In the Claims Process, an arbitrator rather than a judge will decide your claim. Class Counsel will represent you without charge. Claims decided by an arbitrator often are resolved more quickly than claims decided by a judge or jury. Your wage loss is capped, as explained in Sections 9 and 21. You cannot seek emotional distress or punitive damages or an order giving you a promotion. If you choose to make an arbitration claim, there are limits on how long the arbitration lasts, what discovery tools your lawyer can use to get information, and what evidence can be used to support your claim. The number of promotions you may challenge is explained in Section 8. The outcome of the Claims Process is confidential. Neither side can appeal the result.
If you brought your own lawsuit in federal court, then your case would be decided by a jury or a judge. You would have to find a lawyer to represent you. The limits on discovery tools and evidence that apply in the Claims Process would not apply in the same way in court. You would be entitled to seek emotional distress and punitive damages (up to a cap of $300,000) in addition to your wage loss and an order promoting you. The number of promotions you could challenge would not be subject to any limits and would depend on the evidence. The court proceedings and the outcome would be public. Either side could appeal the result.

12. Do I Need to Decide Now Whether to File a Claim or Which Kind of Claim to File?
No. Right now, the only decision you need to make is whether to opt out of the settlement or to object to the settlement. Both of those options are explained below.
13. Can I Get Help in Deciding What Kind of Claim to File? Will I Have a Lawyer in the Claims Process?

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If the Court approves the settlement, then you will be able to consult with Class Counsel and decide if you will file a claim, and what kind of claim to file. There is information available about the past promotions, and who was selected, that will assist you in making a decision. There is no charge to you for consulting with the lawyers to decide whether to file a claim, or for preparing your claim. If you do decide to file a claim, Class Counsel will represent you through all stages of the Claims Process at no charge to you. You also can choose to hire your own lawyer.
14. Will My Job or Future Promotions Be Affected If I Participate in the Claims
Process?

No. Costco supports the right of Class Members who believe they have been subject to sex discrimination in promotion to have their claims determined by a neutral arbitrator in the Claims Process. Retaliation is illegal. If you believe that you are being subjected to any kind of retaliation in connection with the case or the Claims Process, then you can notify Class Counsel, notify your own independent counsel, or use Costco’s Open Door process (if you are a current Costco employee).
15. Can I File a Claim If I Have Been Promoted to AGM or GM But I Believe That I
Should Have Been Promoted Sooner?

Yes. If you win your claim, your economic losses would be based on the time period before you received the promotion.
16. If I Win, Then Can The Arbitrator Order Costco to Promote Me?

No. The Claims Process provides for only money damages. By staying in the case and not opting out, you give up your right to have a court order that you be promoted to AGM or GM.
17. Can I Make a Confidential Claim?

If you are a current Costco employee, then you can choose to make a written claim on a confidential basis so that the manager directly above you, and his or her direct manager, will not know about your claim. If you choose to make a confidential claim, then the maximum that you can receive if you are successful is:

Type of Claim
Written/Confidential Written/Confidential

Denial of Promotion into Which Position AGM GM

Actual Damages Up to Cap
$25,000 cap $50,000 cap

Under certain circumstances, where Costco takes the position that it would be unfair for the claim to be heard on a confidential basis, Costco may ask the arbitrator to remove the confidentiality. If the arbitrator removes the confidentiality, then you will have the right to change your claim to non-confidential or to withdraw it.

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18. If I Win My Claim, Then When Would I Get My Payment?
Payments will be made at the completion of the Claims Process, which may be more than a year after the Court approves the settlement.

19. If I Win My Claim, Then Will Everyone Know How Much I Got? Or, If I Lose My Claim, Will Everyone Know that I Lost?

No. All outcomes in the claims process (win or lose) will be kept confidential. To participate in the claims process, you will sign an agreement to keep the outcome confidential (with a few exceptions like your spouse or tax advisor). The agreement will explain the legal and financial consequences if you do not keep the outcome confidential.
Costco is bound by the same duty to keep the outcomes confidential.
20. Under What Circumstances Can My Award Be Increased or Decreased?

If the total amount of successful claims results in award amounts of less than $8 million, then the award amounts will be increased as follows. Any Claimant whose actual award amount exceeded the first cap (see Section 9) will get the rest of her award amount, subject to a second cap.

Type of Claim
Written Confidential Written Confidential
Written Written Arbitration Arbitration

Denial of Promotion into Which Position
AGM GM AGM GM AGM GM

Actual Damages Over First Cap Up to Additional Second Cap $12,500 $25,000 $100,000 cap $200,000 cap $175,000 cap $300,000 cap

If the total amount of successful claims results in award amounts exceeding $8 million, then each successful claimant’s award amount will be reduced pro rata.

21. What Happens If The Total of The Award Amounts Is Less Than $8 Million?

If the total of the award amounts does not reach $8 million, then all of the money not allocated to award amounts and certain settlement-related expenses will be donated to Network for Executive Women, Consumer Products/Retail to fund scholarships or otherwise assist women pursuing leadership roles in retail management.

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22. What Claims Are Released by the Settlement?
All class members who do not opt out of the settlement are giving up (also called “releasing”) their rights to sue Costco for money damages for gender discrimination in connection with a failure to promote them to AGM or GM since January 3, 2002. Class members give up these rights whether or not they choose to make a claim in the Claims Process. Class members who are current employees also give up their individual rights to seek certain injunctive relief, i.e., a court order that requires an employer to change its promotion practices.
NAMED PLAINTIFFS
23. What Can the Three Named Plaintiffs Get Under the Settlement?
The three Named Plaintiffs may make a promotion claim in the Claims Process or may choose a trial before the Court.
They also may ask the Court to award a service payment of $10,000 each, to be paid from the settlement fund. A service payment is not for damages for discrimination, but would be a payment for services the Named Plaintiffs have provided to the Class in obtaining the settlement. The Court may grant this payment, approve the request at a lower amount, or award no service payment.
THE LAWYERS REPRESENTING YOU
24. Do I have a Lawyer in this Case?
The Court appointed the law firms of the Impact Fund; Lewis, Feinberg, Lee, Renaker & Jackson, PC; Lieff Cabraser, Heimann & Bernstein, LLP; Davis, Cowell & Bowe, LLP; and Altshuler Berzon, LLP to represent you and other Class Members. Together, the lawyers are called Class Counsel.
25. How Will the Lawyers be Paid?
Class Counsel will ask the Court for an award of attorneys’ fees and costs, to be paid by Costco, in the amount of $4,583,959.64 for the services that they have provided to the Class up to the date that the proposed settlement agreement is approved by the Court. They also will ask for fees for anticipated services in monitoring and administering the settlement in the amount of $300,000.
You can review the request for attorneys’ fees at www.GenderClassActionAgainstCostco.com. You can submit a written objection to the request. The Court will examine the fees request of Class Counsel at the Fairness Hearing, as well as any objections to that request, and determine the amount of fees to award, if any.
Attorneys’ fees and costs will not be paid from the settlement fund.
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OPTING OUT OF THE SETTLEMENT
26. Who Should Opt Out of the Class?
If (1) you want to keep the right to sue or continue to sue Costco on your own for sex discrimination in unlawfully denying an AGM or GM promotion, or (2) you do not want to be bound by the settlement of this lawsuit, then you should take steps to get out of the settlement. This is called “opting out.”
27. How Do I Opt Out of the Class?
To opt out of the settlement, you must complete the Opt Out form included with this notice. Be sure to include your name, address, telephone number, and your signature. You must mail your completed Opt Out form postmarked no later than DATE, 2014 to:
Ellis v. Costco Opt Outs Settlement Services, Inc. Post Office Box 10847 Tallahassee, Florida 32302-2847
You cannot opt out by phone or email.
If you ask to opt out, then you cannot participate in the Claims Process, and you cannot object to the settlement. You will not be legally bound by anything that happens in this lawsuit.
You cannot exclude yourself from the program changes called for by the proposed settlement.
OBJECTING TO THE SETTLEMENT
28. How Do I Tell the Court That I Don’t Like the Settlement?
If you’re a Class Member, then you can object to the settlement if you don’t like any part of it, and the Court will consider your views.
To object, you must send a letter saying that you object to the Ellis v. Costco proposed settlement. Be sure to include your name, address, telephone number, signature, and the reasons you object to the proposed settlement. Mail your objection to the Class Administrator postmarked no later than DATE, 2014.
Ellis v. Costco Objections Settlement Services, Inc. Post Office Box 10847 Tallahassee, Florida 32302-2847
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29. What’s the Difference Between Objecting and Opting Out?
If you object, then you are telling the Court that you don’t like something about the proposed settlement. You can object only if you stay in the Class.
If you opt out, then you are telling the Court that you don’t want to be bound by this settlement. If you opt out, then you cannot object to the proposed settlement, because then the case would no longer affect you.
THE COURT’S FAIRNESS HEARING
30. When and Where Will the Court Decide Whether to Approve the Settlement?
The Court will hold a Fairness Hearing at TIME on DAY, DATE, 2014, at the United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA in Courtroom 5.
At this hearing, the Court will consider whether the settlement is fair, reasonable, and adequate. If there are objections, then the Court will consider them. The Court will decide whether to approve the proposed settlement. We do not know how long these decisions will take.
31. Do I Have to Come to the Hearing?
No. Class Counsel and Costco’s counsel will answer questions the judge may have of them. If you send an objection, then you don’t have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it. However, you may appear in person or have your own lawyer attend.
32. May I Speak at the Hearing?
You may ask the Court for permission to speak at the Fairness Hearing or hire your own lawyer to speak for you. To do so, you must send a letter saying that it is your “Notice of Intention to Appear in Ellis v. Costco.” Be sure to include your name, address, telephone number, and signature. Your Notice of Intention to Appear must be postmarked no later than DATE, 2014, and be sent to the Class Administrator, at the address in Section 28.
IF YOU DO NOTHING
33. What Happens if I Do Nothing at All?
If you do nothing, then you’ll be entitled to file a claim in the claims process or choose not to file a claim.
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You will be releasing your right to bring your own independent lawsuit, continue with such a lawsuit, or be part of any other lawsuit against Costco about the legal issues in this case.
GETTING MORE INFORMATION
34. How Do I Get More Information?

This notice summarizes the proposed settlement. More details are in the Settlement Agreement. You can get a copy by contacting Class Counsel identified below, by visiting the case website, www.GenderClassActionAgainstCostco.com, or by calling Costco Human Resources to leave a message at extension 6095 or by sending an email to bweber@Costco.com.

Do not contact the Court for information.

COURT

CLASS COUNSEL

COSTCO COUNSEL

Clerk of the Court U.S. District Court for the Northern District of California 450 Golden Gate Ave. San Francisco, CA 94102-3489

Jocelyn Larkin The Impact Fund 125 University Avenue Suite 102 Berkeley, CA 94710 www.GenderClassActionAgainstCostco.com

David D. Kadue Seyfarth Shaw LLP 2029 Century Park East Suite 3500 Los Angeles, CA 90067

16745951v.2

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EXHIBIT 2

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Ellis v. Costco Wholesale Corporation
No. 04-3341 EMC (United States District Court, Northern District of California)
Opt-Out Request
I received the Notice of Class Action Settlement in Ellis v. Costco Wholesale Corporation.
I want to opt-out of the proposed class action settlement.
Signature: ______________________________________ Name: _________________________________________ Date: __________________________________________ Address: _________________________________________ Telephone Number: _________________________________
This Opt-Out Request must be postmarked no later than _______, 2014 and mailed to: Class Administrator
Ellis v. Costco Wholesale Corp. Settlement Services, Inc. P.O. Box 10847
Tallahassee, FL. 32302-2847

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1 THE IMPACT FUND
Jocelyn D. Larkin (SBN 110817)
2 Robert Schug (SBN 249640)
125 University Avenue, Suite 102
3 Berkeley, CA 94710
Telephone: (510) 845-3473
4 Facsimile: (510) 845-3654
jlarkin@impactfund.org
5
LEWIS, FEINBERG, LEE,
6 RENAKER & JACKSON, P.C.
Bill Lann Lee (SBN 108452)
7 Lindsay Nako (SBN 239090)
476 9th Street
8 Oakland, CA 94607
Telephone: (510) 839-6824
9 Facsimile: (510) 839-7839
blee@lewisfeinberg.com
10
[Additional Counsel Listed on
11 Signature Page]
12 Attorneys for Plaintiffs and Certified Classes
13
14
15

SEYFARTH SHAW LLP Kenwood C. Youmans (SBN 68258) David D. Kadue (SBN 113578) 2029 Century Park East, Suite 3500 Los Angeles, California 90067-2901 Telephone: (310) 201-5211 Facsimile: (310) 201-5219 dkadue@seyfarth.com
SEYFARTH SHAW LLP Gerald L. Maatman (admitted pro hac vice) Annette Tyman (admitted pro hac vice) 131 South Dearborn Street Chicago, Illinois 60603 Telephone: (312) 460-5965 Facsimile: (312) 460-7965 gmaatman@seyfarth.com
SEYFARTH SHAW LLP Thomas J. Wybenga (admitted pro hac vice) c/o Costco Wholesale Corporation 999 Lake Drive Issaquah, WA 98027-5367 Telephone: (425) 313-6794 Facsimile: (425) 313-6922 twybenga@seyfarth.com
Attorneys for Defendant Costco Wholesale Corporation

16

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

20 SHIRLEY "RAE" ELLIS, et al.,

21

Plaintiffs,

22

v.

23 COSTCO WHOLESALE CORPORATION

24

Defendant.

25

) Case No. C04 3341 EMC ) ) STIPULATION REGARDING ) AMENDED SETTLEMENT ) AGREEMENT AND CLASS NOTICE ) ) ) ) )

26

27

28

STIP. RE: AM. SETTLEMENT AGREEMENT

AND CLASS NOTICE

Case No.: C04 3341 EMC

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1

STIPULATION

2

On January 12, 2013, Plaintiffs filed a motion for preliminary settlement approval in the

3 above-captioned matter. The parties’ Amended Class Action Settlement Agreement was

4 subsequently filed with the Court as Exhibit A to the January 30, 2014 Declaration of Jocelyn

5 Larkin. (ECF No. 776-1.) Pursuant to the Court’s suggestion at the February 6, 2014 hearing on

6 preliminary settlement approval, the parties, through their counsel, hereby stipulate and agree

7 that the Amended Class Action Settlement Agreement is further amended as follows:

8

1. Amended Settlement Agreement § 13. The standard of review on objections, if

9 any, to recommendations of the Compliance Special Master in § 13 of the Amended Settlement

10 Agreement shall be “abuse of discretion.”

11

2. Notice of Class Action Settlement (Exhibit 1). The text following the third

12 bullet on page 1 of the Notice of Class Action Settlement will be bold, and will read:

13

The proposed settlement, if approved by the Court, also would create an

14

arbitration claims process in which women may make claims for economic

15

damages resulting from unlawful denial of promotions because of their sex.

16

Unless you win your claim, you will not receive any money. The proposed

17

settlement provides a fund up to $8 million to compensate women who bring

18

successful claims. (See Sections 6 and 8).

19

20 IT IS SO STIPULATED.

21

Dated: February 10, 2014

22

23

Dated: February 10, 2014

24

/s/ Jocelyn Larkin Counsel for Plaintiffs
/s/ David Kadue Counsel for Defendant

25 Additional Counsel for Plaintiffs:

26 LIEFF, CABRASER, HEIMANN
& BERNSTEIN, LLP
27 Kelly Dermody (SBN 171716)
Daniel Hutchinson (SBN 239458)
28

2
STIP. RE: AM. SETTLEMENT AGREEMENT AND CLASS NOTICE
Case No.: C04 3341 EMC

CCaCasasees3e3:03:04:04-c4-cv-v-c0-v03-0333434141-E1-EM-EMCMCCDDoDococuucmumemenent7nt77t78970-18 FFFileiilleeddd000222/1//11200/1//11444 PPPaaagggeee65317oof f36517

1 Embarcadero Center West
275 Battery Street, 30th Floor
2 San Francisco, CA 94111-3339
Telephone: (415) 956-1000
3 Facsimile: (415) 956-1008
kdermody@lchb.com
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DAVIS, COWELL & BOWE, LLP
5 Steve Stemerman (SBN 067690)
Elizabeth A. Lawrence (SBN 111781)
6 595 Market Street, #1400
San Francisco, CA 94105
7 Telephone: (415) 597-7200
Facsimile: (415) 597-7201
8 eal@dcbsf.com
9 ALTSHULER BERZON LLP
James M. Finberg (SBN 114850)
10 177 Post Street, Suite 300
San Francisco, CA 94108
11 Telephone: (415) 421-7151
Facsimile: (415) 362-8064
12 jfinberg@altshulerberzon.com
Additional Counsel for Defendant
13
SEYFARTH SHAW LLP
14 David B. Ross (admitted pro hac vice)
620 8th Avenue
15 32nd Floor
New York, New York 10018
16 (212) 218-5500
dross@seyfarth.com
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STIP. RE: AM. SETTLEMENT AGREEMENT AND CLASS NOTICE
Case No.: C04 3341 EMC

 
 1 THE IMPACT FUND Jocelyn D. Larkin (SBN: 110817)
2 Robert Schug (SBN: 249640) Meredith Johnson (SBN: 291018)
3 125 University Avenue, Suite 102 Berkeley, CA 94710
4 Telephone: (510) 845-3473 Facsimile: (510) 845-3654
5 jlarkin@impactfund.org

SEYFARTH SHAW LLP Kenwood C. Youmans (SBN 68258) David D. Kadue (SBN 113578) 2029 Century Park East, Suite 3500 Los Angeles, California 90067-2901 Telephone: (310) 201-5211 Facsimile: (310) 201-5219 dkadue@seyfarth.com

6 LEWIS, FEINBERG, LEE & JACKSON, P.C.
7 Bill Lann Lee (SBN: 108452) Lindsay Nako (SBN: 239090)
8 476 9th Street Oakland, CA 94607
9 Telephone: (510) 839-6824 Facsimile: (510) 839-7839
10 blee@lewisfeinberg.com

SEYFARTH SHAW LLP Gerald L. Maatman (admitted pro hac vice) Annette Tyman (admitted pro hac vice) 131 South Dearborn Street Chicago, Illinois 60603 Telephone: (312) 460-5965 Facsimile: (312) 460-7965 gmaatman@seyfarth.com

11 DAVIS, COWELL & BOWE, LLP

SEYFARTH SHAW LLP

Steve Stemerman (SBN: 067690)
12 Elizabeth A. Lawrence (SBN: 111781) 595 Market Street, #1400
13 San Francisco, CA 94105 Telephone: (415) 597-7200

David B. Ross (admitted pro hac vice) 620 8th Avenue 32nd Floor New York, New York 10018

14 Facsimile: (415) 597-7201

(212) 218-5500

eal@dcbsf.com

dross@seyfarth.com

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Attorneys for Plaintiffs and Certified Classes Attorneys for Defendant Costco Wholesale Corp.

16 [Additional Counsel Listed on

17 Signature Page]

18 UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA
20

21
SHIRLEY "RAE" ELLIS, et al., 22
Plaintiffs, 23
v. 24
COSTCO WHOLESALE CORPORATION, 25
Defendant. 26

Case No. C04-3341 EMC
STIPULATION AND [PROPOSED] ORDER GRANTING VOLUNTARY DISMISSAL OF PLAINTIFF ELAINE SASAKI’S CLAIMS

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20504207v.1

STIP AND [PROPOSED] ORDER GRANTING VOLUNTARY DISMISSAL OF PLAINTIFF ELAINE SASAKI’S CLAIMS CASE NO. C04-3341 EMC

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STIPULATION

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The parties stipulate to the dismissal, with prejudice, of Plaintiff Elaine Sasaki’s claims,

3 pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure.

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This stipulation does not affect the class action settlement, over which the Court retains

5 jurisdiction.

6 IT IS SO STIPULATED. 7 8 Dated: July 27, 2015 9 10 11

/s/ Jocelyn D. Larkin
Jocelyn D. Larkin Impact Fund
Attorneys for Plaintiffs

12 Dated: July 27, 2015

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17 Additional Counsel for Plaintiffs
18 LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
19 Kelly M. Dermody (SBN: 171716) Daniel M. Hutchinson (SBN: 239458)
20 275 Battery Street, 29th Floor San Francisco, CA 94111-3339
21 Telephone: 415.956.1000 Facsimile: 415.956.1008
22 kdermody@lchb.com dhutchinson@lchb.com
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/s/ David D. Kadue
David D. Kadue Seyfarth Shaw LLP
Attorneys for Defendant
Additional Counsel for Defendant
SEYFARTH SHAW LLP Thomas J. Wybenga (admitted pro hac vice) c/o Costco Wholesale Corporation 999 Lake Drive Issaquah, WA 98027-5367 Telephone: (425) 313-6794 Facsimile: (425) 313-6922 twybenga@seyfarth.com

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STIP AND [PROPOSED] ORDER GRANTING VOLUNTARY DISMISSAL OF PLAINTIFF ELAINE SASAKI’S CLAIMS

CASE NO. C04-3341 EMC

20504207v.1

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[PROPOSED] ORDER

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PURSUANT TO THE PARTIES’ STIPULATION AND GOOD CAUSE

3 APPEARING,

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Plaintiff Elaine Sasaki’s claims are DISMISSED with prejudice. This stipulation does not

5 affect the class action settlement, over which the Court retains jurisdiction.

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7 IT IS SO ORDERED. 8

TATES DISTRICT C

UNITED S ALIFORNIA

OURT NORTH

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IT IS SO ORDERED

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Judge Edward M. Chen
UNERITNHEDoDnSoITrSaATblTReEEISdCDwTIaSrOdTRMFI.CCCThCenOURT

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STIP AND [PROPOSED] ORDER GRANTING VOLUNTARY DISMISSAL OF PLAINTIFF ELAINE SASAKI’S CLAIMS

CASE NO. C04-3341 EMC

20504207v.1

 
 Case3:04-cv-03341-EMC Document537 Filed03/23/12 Page1 of 28

1 IMPACT FUND Brad Seligman (SBN: 83838)
2 Jocelyn D. Larkin (SBN: 110817) 125 University Ave., Suite 102
3 Berkeley, CA 94710 Telephone: (510) 845-3473
4 Facsimile: (510) 845-3654 jlarkin@impactfund.org
5

6 LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C.
7 Bill Lann Lee (SBN: 108452) Julia Campins (SBN: 238023)
8 476 9th Street Oakland, CA 94607
9 Telephone: (510) 839-6824 Facsimile: (510) 839-7839
10 blee@lewisfeinberg.com

11 [Additional Counsel Listed on Signature Page]
12 Attorneys for Plaintiffs
13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16 SHIRLEY “RAE” ELLIS, LEAH HORSTMAN, and ELAINE SASAKI on
17 behalf of themselves and all others similarly situated,
18 Plaintiffs,
19 v.
20 COSTCO WHOLESALE CORPORATION,
21
Defendant. 22

Case No.: C-04-3341 EMC THIRD AMENDED COMPLAINT DEMAND FOR JURY TRIAL

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THIRD AMENDED COMPLAINT C 04-03341 EMC

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1 Individual and Representative Plaintiffs Shirley “Rae” Ellis, Leah Horstman, and Elaine

2 Sasaki (collectively “Plaintiffs”), on behalf of themselves and all others similarly situated, allege,

3 upon personal knowledge as to themselves and upon information and belief as to other matters, as

4 follows:

5

INTRODUCTION

6

1.

Plaintiffs Elaine Sasaki, a current Costco employee, and Shirley “Rae Ellis and

7 Leah Horstman, two former Costco employees, bring this class action against Costco Wholesale

8 Corporation (“Costco”) on behalf of themselves and all similarly situated current and former

9 female employees of Costco who have been or will be subjected to Costco’s continuing policies

10 and practices of gender discrimination with respect to promotion into two warehouse

11 management positions: Assistant General Manager (“AGM”) and General Manager (“GM”).

12

2.

Plaintiffs charge that Costco discriminates against its female employees by using a

13 uniform, corporate-directed selection system mandated by a CEO who believes that women are

14 “caretakers” who “have the responsibility for the children and for the family” and are not

15 interested in these promotions. Costco’s selection system fails to promote equally or better

16 qualified women into the AGM and GM management positions.

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3.

This class action seeks to end Costco’s discriminatory practices and to provide

18 monetary relief to those who have been affected by these practices.

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4.

This action was originally filed on August 17, 2004, alleging that Costco

20 discriminated against its female employees with respect to promotion into warehouse

21 management positions. On January 11, 2007, the district court certified a class of women

22 challenging Costco’s system for promotion into AGM and GM positions in its retail warehouse

23 stores in the United States. On September 16, 2011, the Ninth Circuit resolved Costco’s appeal of

24 the class certification order, affirming in part, vacating in part and remanding to the district court

25 for further proceedings.

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1 JURISDICTION AND VENUE
2 5. Plaintiffs’ claims arise under Title VII of the Civil Rights Act of 1964, 42 U.S. C.
3 §§ 2000(e), et. seq. This Court has jurisdiction over this matter pursuant to 42 U.S.C. §§ 1331
4 and 1343(a)(4). The Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over
5 claims under the California Fair Employment & Housing Act, Government Code § 12940, et. seq.
6 Jurisdiction is proper in this Court because the claims of Plaintiffs Sasaki and Horstman arose in
7 California. Plaintiffs expressed interest in positions in California, and some of the positions that
8 Costco denied Plaintiffs were in California.
9 6. Venue is proper in this district pursuant to 42 U.S.C. § 2000e-5(f) and 28 U.S.C. §
10 1391(b) & (c). The claims of Plaintiffs Sasaki and Horstman arose in California. In addition,
11 some of the positions that Costco denied Plaintiffs were in California. Members of the class
12 reside throughout the United States, including Northern California. Many of the acts alleged in
13 this Third Amended Complaint occurred in this District and gave rise to the claims alleged.
14 PARTIES
15 7. Plaintiff Shirley “Rae” Ellis was employed by Costco Wholesale Corporation until
16 November 2004. She resides in Arvada, Colorado.
17 8. Plaintiff Leah Horstman was employed by Costco Wholesale Corporation until
18 July 2004. She resides in Descanso, California.
19 9. Plaintiff Elaine Sasaki is currently employed by Costco Wholesale Corporation in
20 its Bay Area Region. She resides in Fresno, California.
21 10. Defendant Costco Wholesale Corporation is a Washington corporation and
22 Fortune 500 company with approximately 433 warehouses in the U.S., including over 100 stores
23 in California. Costco’s corporate headquarters are in Issaquah, Washington. During its last
24 reported fiscal year, ended August 31, 2011, Costco reported almost $88.9 billion in revenues.
25 CLASS ALLEGATIONS
26 11. Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil
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1 Procedure on behalf of: (a) all women who are currently employed or who will be employed at
2 any Costco warehouse in the United States (“Injunctive Relief Class”); and (b) all women who
3 have been employed at any Costco warehouse store in the United States since January 3, 2002
4 (“Monetary Relief Class”), who have been or will be subject to Costco’s system for promotion to
5 Assistant General Manager and/or General Manager positions (collectively, the “Classes”).
6 12. The members of the Injunctive Relief Class and the Monetary Relief Class are
7 sufficiently numerous that joinder of all members is impracticable. Plaintiffs are informed and
8 believe that the membership of the Classes exceeds 700 former and current female employees.
9 13. There are questions of law and fact common to the Classes, central to the
10 resolution of the case, and capable of classwide resolution. Answers to these common questions
11 will advance this litigation significantly. Such common questions capable of generating common
12 answers apt to drive this litigation include, but are not limited to, the following:
13 (1) whether Costco’s promotion system for Assistant General Manager and General
14 Manager positions discriminates against female employees in violation of Title VII of
15 the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et. seq.;
16 (2) whether Costco has engaged in a pattern and practice of disparate treatment adverse to
17 female employees with its use of the selection system for promotion into Assistant
18 General Manager and General Manager;
19 (3) whether Costco’s selection system for promotion into Assistant General Manager and
20 General Manager has a disparate impact on female employees;
21 (4) whether elements of Costco’s selection system for promotion into Assistant General
22 Manager and General Manager are capable of separation for analysis;
23 (5) whether the disparate impact resulting from the selection system for promotion into
24 Assistant General Manager and General Manager is justified by business necessity;
25 (6) whether the disparate impact constitutes a violation of Title VII of the 1964 Civil
26 Rights Act, 42 U.S.C. § 2000e, et. seq.;
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1 (7) whether injunctive relief and other equitable remedies are warranted for the Injunctive
2 Relief class;
3 (8) whether declaratory relief, other equitable remedies, back pay, front pay, punitive and
4 compensatory damages are warranted for both Classes.
5 14. The answers to these common questions will be the same for all Plaintiffs and the
6 members of the Classes, and will establish (or not establish) the elements of Plaintiffs’ and the
7 Classes’ claims.
8 15. The claims alleged by Plaintiff Elaine Sasaki are typical of the claims of the
9 Injunctive Relief Class.
10 16. The claims alleged by Plaintiffs Shirley Rae Ellis, Leah Horstman, and Elaine
11 Sasaki are typical of the claims of the Monetary Relief Class.
12 17. Plaintiff Elaine Sasaki will fairly and adequately represent the interests of the
13 Injunctive Relief Class.
14 18. Plaintiffs Shirley Rae Ellis, Leah Horstman, and Elaine Sasaki will fairly and
15 adequately represent the interests of the Monetary Relief Class.
16 19. The Injunctive Relief Class is properly maintainable under Federal Rule of Civil
17 Procedure 23(b)(2) because defendant has acted or refused to act on grounds generally applicable
18 to this class, thereby making appropriate final injunctive relief or corresponding declaratory relief
19 with respect to this class as a whole. Alternatively, claims for injunctive and declaratory relief for
20 the Injunctive Relief Class are properly certified under Federal Rule of Civil Procedure 23(c)(4)
21 because such claims present only common issues, the resolution of which would advance the
22 interests of the parties in an efficient manner.
23 20. The Monetary Relief Class is properly certified under Federal Rule of Civil
24 Procedure 23(b)(3) because questions of law and fact common to the class predominate over any
25 questions affecting only individual members, and a class action is superior to other available
26 methods for the fair and efficient adjudication of this case.
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1 21. Alternatively, class wide liability claims are properly certified under Federal Rule
2 of Civil Procedure 23(c)(4) for the Classes because such claims present only common issues, the
3 resolution of which would advance the interests of the parties in an efficient manner.
4 22. Punitive damages liability may alternatively be certified under Federal Rule of
5 Civil Procedure 23(b)(2) because such relief focuses on the conduct of Costco and not the
6 individual characteristics of the Plaintiffs and are an allowable form of incidental monetary relief.
7 GENERAL ALLEGATIONS
8 Senior Management and Executive Hierarchy
9 23. James Sinegal is Costco’s co-founder and was the company CEO from its
10 founding until January 1, 2012. Mr. Sinegal remains a member of the company’s Board of
11 Directors. W. Craig Jelinek, a long-time Costco executive, was appointed to the position of CEO
12 when Mr. Sinegal stepped down.
13 24. For the entire class period, Mr. Sinegal has wielded great influence over Costco’s
14 senior management and executives.
15 25. Costco’s U.S. operations are divided into three geographic divisions, each led by
16 an Executive Vice President (EVP). Each Costco Executive Vice President reports to Costco’s
17 Chief Operating Officer, who in turn reports to Costco’s CEO.
18 26. Each division is divided into regions managed by a Senior Vice President (SVP).
19 There are currently eight regions. Each region is ordinarily comprised of two or more districts.
20 Districts are headed by a District Manager, although that person’s title changes to Assistant Vice
21 President after a year in the job, and to Vice President after two years.
22 27. Costco’s regional and divisional vice presidents meet every four weeks at
23 corporate headquarters.
24 28. Costco’s Executive Committee is comprised of the top 33 company officers,
25 including its divisional operations Executive Vice Presidents. Only two members of the
26 Executive Committee are female and neither oversees U.S. warehouse operations. At the time
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1 that Plaintiffs filed their complaint and for some time after, there were no women on Costco’s
2 Executive Committee. Costco’s corporate office sets and implements the personnel policies that
3 govern all retail warehouse employees.
4 29. Costco’s personnel policies are contained in Costco’s Employee Agreement,
5 which applies to all Costco employees.
6 Warehouse Management Hierarchy
7 30. Costco has a uniform management hierarchy in each warehouse. Within each
8 Costco warehouse, the management structure consists of a General Manager, two to three
9 Assistant General Managers, and three to four Senior Staff Managers. Costco’s Senior Staff
10 Managers are divided into four categories: Front End Managers, Administrative Managers,
11 Receiving Managers, and Merchandise Managers.
12 31. Costco’s Corporate Office establishes salary ranges for each of the management
13 jobs within the warehouse.
14 32. General Managers are responsible for the operation of their warehouses. They
15 make an average salary over $116,000 and are eligible for bonuses and potentially lucrative stock
16 options. General Managers report to District Manager/Vice Presidents. As of January 2005,
17 women held 16 percent of General Manager positions and a lower percentage in earlier years.
18 33. Assistant General Managers are second in command within each warehouse and
19 earn an average salary of approximately $73,000, plus stock and bonuses. One becomes a GM
20 almost always by promotion from the position of AGM.
21 Pre-Selection By Means of Promotable Lists and the Green Room
22 34. Costco has a uniform selection system for promotions into AGM and GM that
23 does not vary by region.
24 35. Costco promotes AGMs and GMs almost entirely from within its organization.
25 36. Costco has a uniform system of pre-selection and grooming of AGM and GM
26 candidates directed from the top. At the direction of former CEO Jim Sinegal, District and
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1 Regional Vice Presidents prepare lists of the top candidates for promotion into AGM and GM in
2 their regions. These senior executives then forward the lists of “promotables” to the Divisional
3 Vice Presidents. The lists are created and maintained at the regional level.
4 37. Employees are not consistently informed that they are on the promotable list or
5 even that promotable lists exist.
6 38. There are no legitimate, validated or business-related criteria for the selection of
7 candidates to the promotable list by District and Regional Vice Presidents.
8 39. Costco displays the photographs and biographies of future promotables in the
9 confidential “Green Room” in the Corporate Headquarters. Costco limits access to the “Green
10 Room” to the company’s top executives. Plaintiffs are informed and believe that the “Green
11 Room” is now maintained in an electronic format and that access is still limited to senior
12 executives. Senior executives use the Green Room to assess the promotable “bench.”
13 40. Costco invites those placed on the top of the promotable list to the company’s
14 annual managers meeting. Individuals on the promotable list are introduced to senior executives
15 when those officials visit and inspect warehouse stores. These opportunities to create personal
16 relationships with higher level executives further reinforce the advantages of the pre-selected
17 favorites.
18 41. Costco’s Regional and Divisional Operations Managers meet frequently and
19 receive instructions from Costco’s CEO regarding the criteria he expects them to apply in making
20 selection decisions.
21 42. Costco’s former CEO has expressed stereotyped perceptions about the roles for
22 women and men in the warehouse.
23 43. Although Costco’s female managers actually have lower turnover than their male
24 counterparts, former CEO Sinegal has assumed that female managers prefer more family-friendly
25 jobs rather than warehouse management because “women have a tendency to be the caretakers
26 and have the responsibility for the children and for the family.”
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1 44. CEO Sinegal believes that women prefer front end and administrative positions,
2 rather than merchandising positions (stocking) and turn down opportunities for these positions
3 more than their male counterparts. He testified “I think since the beginning of time women have
4 had a tendency to come in to our business in positions that were more associated with the
5 administrative aspect of the company, the front end, the marketing end, that was the way they
6 entered our business. So many of our positions out on the sales floor in merchandising are jobs
7 like forklift drivers, and so that’s been traditionally a male dominated field, something that has
8 changed and is changing over a period of time, but that has historically been a male oriented job. .
9 . . It’s been true at Costco. . . .”
10 45. Mr. Sinegal has communicated his biased and stereotyped opinions of women’s
11 roles in the workplace to the executives who worked under him, which have influenced how
12 selections are made for AGM and GM.
13 Selections for General Manager
14 46. Costco does not post openings for promotion into General Manager.
15 47. Costco does not have any procedure to apply for promotion into General Manager.
16 48. Costco does not require decision-makers to interview candidates for promotion
17 into General Manager or to consider more than one candidate.
18 49. Costco does not have any written criteria for promotion into General Manager.
19 50. Costco does not have any minimum qualifications for promotion into General
20 Manager, other than experience as an Assistant General Manager.
21 51. Costco provides nothing in writing to its employees that explains the qualifications
22 or the process for promotion to General Manager.
23 52. Costco does not require decision-makers to maintain any records concerning
24 General Manager promotions, such as the candidates considered, the criteria used, or the reasons
25 for selecting a particular candidate.
26 53. Costco employs unvalidated criteria to select General Managers, including the
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1 promotable lists described above.
2 54. Costco’s former CEO has confirmed that the criteria used to select General
3 Managers are the same throughout Costco’s U.S. Operations. In addition to prior service as an
4 Assistant General Manager, they are “people skills,” “merchandising skills,” and “adroit with the
5 numbers . . . and the whole financial aspect of their business.” Costco has no guidelines or
6 instructions about how to assess, apply or weight these criteria.
7 55. The regional Senior Vice President recommends a candidate for selection as
8 General Manager, but that recommendation must be approved by the Executive Vice President,
9 the Chief Operating Officer, and the CEO.
10 56. Costco’s CEO personally approves every General Manager selection.
11 Selections for Assistant General Manager
12 57. Costco does not post openings for Assistant General Manager.
13 58. Costco does not have any procedure to apply for promotion into Assistant General
14 Manager.
15 59. Costco does not require decision-makers to interview candidates for promotion
16 into Assistant General Manager or to consider more than one candidate.
17 60. Costco does not have any written criteria for promotion into Assistant General
18 Manager.
19 61. Costco does not have any minimum qualifications for promotion into Assistant
20 General Manager, other than experience in Senior Staff Manager positions.
21 62. Costco provides nothing in writing to its employees that explains the qualifications
22 or the process for promotion to Assistant General Manager.
23 63. Costco does not require decision-makers to maintain any records concerning
24 Assistant General Manager promotions, such as the candidates considered, the criteria used, or
25 the reasons for selecting a particular candidate.
26 64. Costco employs unvalidated criteria to select Assistant General Managers,
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1 including the promotable lists described above.
2 65. According to the former CEO, the criteria used to select Assistant General
3 Managers are uniform throughout Costco’s U.S. Operations. These are “people skills,”
4 “merchandising skills,” and “adroit with the numbers … and the whole financial aspect of their
5 business.” Costco has no guidelines or instructions about how to assess, apply or weight these
6 criteria.
7 66. Selections for Assistant General Manager are made by District Vice Presidents,
8 and will not take effect until the Senior Vice President has been informed.
9 No Changes to Selection System Since Original Class Certification Order
10 67. On information and belief, Costco has not changed its policies or procedures for
11 promotion into AGM or GM positions since the district court’s class certification order in January
12 2007.
13 Discriminatory Impact of Selection System for AGM and GM Promotions
14 68. Statistical proof demonstrates that women were disadvantaged to a statistically
15 significant degree by this process.
16 69. For the period 1999 to 2005, there was a statistically significant disparity in the
17 selection of women for AGM positions compared to men.
18 70. In 2006, although women held about 28% of the Senior Staff positions, their
19 representation at AGM and GM levels dropped to roughly 16% (AGM) and 13% (GM).
20 71. In every Costco region, except Texas where there were very few promotions, there
21 was a negative shortfall in the promotion of women into AGM prior to the filing of this action.
22 72. Under-promotion of women into AGM had the effect of diminishing the pool of
23 eligible women for promotion to General Manager positions, since promotions to such positions
24 are usually drawn from the Assistant General Manager ranks.
25 73. As a result of Costco’s discriminatory policies and practices, it has lagged behind
26 its competitors in the representation of women in management positions.
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1 Admissions of Biases in Selection System and CEO’s Decision to Veto Changes to System

2

74. In 2001, the company convened interviews and focus groups among its managers

3 (knows as “the BOLD Initiative”) to review barriers to the advancement of women.

4

75. In these meetings, Costco managers identified that its promotion policies led to

5 stereotyping and disadvantaged women. Participants identified the “‘good old boys’ network,”

6 “type casting people (stereotypes)” and “[p]rejudices” as potential barriers. Barriers included

7 “[l]ack of consistent application of systems dealing with promotions, training, reviews, etc.,”

8 “[r]elying on the use of ‘word of mouth’ to evaluate talent” and “[s]tereotyping.” Promotions

9 were “[d]one as special favors at times or based on relationships,” and “[i]t depend[s] on who you

10 know as to whether you get the training needed to be promoted.”

11

76. In a May 2001 report, the internal project team identified some of the “barriers that

12 have prevented the company from benefiting from a diverse management team” and concluded

13 that “[i]nconsistencies in the promotion practices allow for favoritism and individual biases to

14 enter into the process.”

15

77. In response to the BOLD Initiative and the managers’ recommendations, Costco

16 adopted the Rothman Workplan.

17

78. The Workplan was adopted in response to criticisms that Costco’s inconsistent

18 promotion practices allowed for favoritism and individual biases. The Rothman Workplan only

19 changed promotion practices as to the four Senior Staff jobs, but did not change those practices

20 relating to promotions to the higher level Assistant General Manager and General Manager

21 positions.

22

79. In 2001 or 2002, the CEO personally blocked the recommendation to make

23 changes to the promotion policies and practices for Assistant General Manager and General

24 Manager that were intended to eliminate barriers for women.

25

80. At a company meeting, CEO Sinegal publicly dismissed job posting as “bullshit.”

26

81. Four years later, in August 2005, Costco launched a second series of focus groups

27 on potential barriers to the advancement of women and minorities.

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1 82. The barriers identified by Costco’s managers mirrored the earlier comments made
2 by the 2001 focus groups. Managers again cited the lack of written guidelines and the lack of
3 clarity in promotion criteria as barriers to the promotion of women. They noted the need for
4 “consistent criteria for promotion,” and for “identifying what skills and behaviors are necessary
5 and communicating the expectations consistently.” “Employees when questioned do not know
6 the path to promotion…” Others observed that getting promoted depended partly on “[w]ho you
7 know,” the “tendency to promote people like us” and “[s]tereotypes.” Participants also reported
8 that barriers included employees “not knowing of job opportunities across the country (job
9 postings),” and “lack of knowledge about upcoming opportunities.”
10 83. The focus groups indentified specific barriers to women obtaining merchandise
11 experience, including the “[p]erception of stockers as big strong men,” and the “unconscious
12 stereotype that women can’t be Merchandise Managers or forklift drivers.” They recognized that
13 women were blocked by lack of rotation into merchandising positions. “[A]s rotation has slowed
14 this has affected our female managers. Many of them have started in areas such as Marketing,
15 Admin, and Front End. In many cases, they have occupied these roles and have not been rotated
16 on to the floor, which is a requisite for advancement.”
17 Anti-Discrimination, EEO and Diversity Policies have been Ineffective
18 84. Costco’s Anti-Discrimination, EEO and Diversity Policies have been ineffective in
19 preventing discrimination including the discriminatory effects of the promotion policies and
20 practices for AGM and GM.
21 a. Costco has had written EEO and diversity policies that prohibit
22 discrimination for a number of years that pre-dated the BOLD initiative and the
23 2005 manager focus groups.
24 b. In 2001, Costco managers participating in the BOLD Initiative identified
25 that its promotion practices led to bias and favoritism and recommended that the
26 company adopt written criteria and other measures to ameliorate the adverse
27

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1 effects on women employees. Costco failed to adopt these steps for the AGM and
2 GM positions.
3 c. In its 2001 report, the BOLD team observed: “Corporate wide diversity
4 has not been seen as a top priority issue or key to success of the company.”
5 d. Four years later, in 2005, manager focus groups again identified the
6 absence of written criteria and information as leading to stereotyping and barriers
7 for women in obtaining promotion to AGM and GM. The presence of a written
8 EEO policy had not changed the discriminatory elements of the selection system
9 for AGM or GM nor mitigated its discriminatory effects.
10 e. Between these two efforts, in 2003, plaintiff Elaine Sasaki complained to
11 Costco’s Director of Human Resources, Judy Vadney, about the the company’s
12 promotion system, specifically highlighting “the subjective application of
13 standards” and “the appearance … of gender bias.” Ms. Vadney did not
14 investigate these systemic claims.
15 f. The presence of its written EEO policy did not prevent the discriminatory
16 elements of the selection system for AGM or GM nor did it mitigate the
17 discriminatory effects of the selection system.
18 g. Costco has failed to take prompt, effective corrective action in response to
19 complaints of discrimination.
20 85. Costco has pursued policies and practices on a continuing basis which have had
21 the effect of denying equal job opportunities to qualified women. Such policies and practices
22 include, without limitation:
23 a. Pre-selection and grooming of candidates for promotion into AGM and
24 GM through promotable lists and the Green Room, based upon unvalidated
25 criteria;
26 b. Reliance upon unvalidated criteria for making promotion decisions into
27

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1 AGM and GM;
2 c. Failing and refusing to consider females for promotion into AGM and GM
3 on the same basis as males are considered;
4 d. Failing and refusing to promote females into AGM and GM positions on
5 the same basis as male are promoted;
6 e. Failing to provide females with accurate and timely notice of promotional
7 opportunities;
8 f. Establishing and maintaining unvalidated requirements for promotions
9 which have the effect of excluding qualified women and which have not been
10 shown to have any significant relationship to job performance or be necessary to
11 the safe and efficient conduct of Costco’s business;
12 g. Failing and refusing to take adequate steps to eliminate the effects of its
13 past discriminatory practices.
14 CLAIMS OF NAMED PLAINTIFF SHIRLEY “RAE” ELLIS
15 86. Plaintiff Shirley “Rae” Ellis, a female, was hired by Costco as an Assistant
16 Manager in 1998.
17 87. Prior to being recruited to join Costco, Ms. Ellis had extensive management
18 experience. At the time Costco hired Ms. Ellis, she was working as a General Manager for Wal-
19 Mart’s Sam Club, one of Costco’s main competitors. The position of General Manager at Sam’s
20 Club is similar in function and job duties to the General Manager position at Costco.
21 88. Ms. Ellis agreed to take a step down in pay and seniority and join Costco as an
22 Assistant General Manager rather than a General Manager because she was told that Costco did
23 not hire General Managers from the outside and that she would be eligible for promotion to
24 General Manager within a year. Promotion to General Manager would have brought increased
25 salary and substantial bonuses that would have raised her compensation above what she was then
26 earning at Sam’s Club. Ms. Ellis repeatedly told Costco during the interview process that, due to
27

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1 her age (45) and experience, she did not want to come to Costco just to be an Assistant General
2 Manager. Costco assured her that she would not have to wait long for promotion to General
3 Manager.
4 89. In Ms. Ellis’s first year with Costco, she transferred locations twice in order to
5 further her goal of promotion to GM. During this time, several GM positions became available
6 but she did not learn of them until after they were filled.
7 90. After joining Costco, Ms. Ellis received excellent performance reviews and was
8 told that she was eligible for promotion and that promotion was imminent. She repeatedly told
9 Costco of her interest in promotion to General Manager. Ms. Ellis advised Costco of her
10 willingness to move anywhere Costco desired to fill a General Manager position in a California
11 warehouse. However, despite the fact that Costco has at least 100 warehouses in California and
12 that there were numerous openings for General Manager in these warehouses and others during
13 the relevant time, Ms. Ellis was not offered a position in any of them.
14 91. In 2002, Ms. Ellis sent a letter to her supervisors expressing a “burning desire” to
15 help Costco be successful and advance within the company, asking how the GM selection process
16 worked, where she stood as a candidate for promotion, and what she needed to do to become a
17 GM.
18 92. Ms. Ellis was prevented from applying for specific openings in these warehouses
19 because Costco does not post or otherwise notify employees of these openings.
20 93. Instead, Ms. Ellis is informed and believes that these openings were filled mostly
21 with males with less experience and inferior qualifications.
22 94. On or about October 24, 2002, Ms. Ellis filed a charge of discrimination with the
23 United States Equal Employment Opportunity Commission (“EEOC”). Attached to this
24 Complaint as Exhibit A, and incorporated herein by reference, is a copy of that charge. Ms. Ellis
25 received a Notice of Right to Sue from the EEOC and timely filed this action. Under a “work-
26 sharing” agreement between the EEOC and the California Department of Fair Employment and
27

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1 Housing, charges filed with the EEOC are to be automatically cross-filed with the DFEH.
2 95. In 2004, after Ms. Ellis filed her charge of discrimination with the EEOC, Costco
3 retaliated against Ms. Ellis by, among other things, subjecting her to differential discipline, and
4 moving her from her warehouse in Aurora, Colorado to a remote location, requiring a multi-hour
5 commute. On or about April 23, 2004, Ms. Ellis filed a retaliation charge with the EEOC.
6 Attached as Exhibit B and incorporated by reference is a copy of the charge of retaliation that Ms.
7 Ellis filed. Ms. Ellis has received a Notice of Right to Sue from the EEOC and has timely filed
8 this action.
9 96. In November 2004, Ms. Ellis resigned her employment with Costco because the
10 ongoing retaliation made her position untenable.
11 97. Costco has discriminated against Ms. Ellis on account of her gender as follows:
12 a. By failing and refusing to consider her for promotional opportunities on the
13 same basis as males are considered;
14 b. By failing and refusing to provide her with timely and accurate notice of
15 employment opportunities;
16 c. By relying on a centralized system of pre-selection through the promotable
17 lists and Green Room;
18 d. By relying on unvalidated criteria to make promotion decisions;
19 e. By promoting similarly-situated and less qualified males more rapidly that
20 her;
21 f. By failing to change a system for pre-selection and selection that Costco
22 knew was disadvantaging and discriminating against women; and
23 g. By retaliating against her for filing a charge of discrimination with the
24 EEOC.
25 98. Ms. Ellis is informed and believes that Costco discriminated against her in the
26 same manner that it discriminates against the Classes generally. Her primary intention with
27

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1 regard to this case is to end Costco’s pattern and practice of discrimination.
2

3 CLAIMS OF NAMED PLAINTIFF LEAH HORSTMAN
4 99. Plaintiff Leah Horstman, a female, was hired by Costco as a “caller” in May 1981.
5 When she left Costco in July 2004, Ms. Horstman held the position of Receiving Manager at
6 Costco’s La Mesa, California warehouse.
7 100. Ms. Horstman was a Costco employee for 23 years. She began working for
8 Costco as a student and continued working for Costco after she received her college degree. She
9 served in numerous positions with Costco including approximately 15 years in management
10 positions.
11 101. During her tenure at Costco, Ms. Horstman consistently received excellent
12 performance reviews and was told that she was eligible for promotion and that promotion was
13 imminent. She repeatedly informed senior managers and executives at Costco of her interest in
14 being promoted to senior store management positions such as Assistant General Manager. Ms.
15 Horstman advised Costco of her willingness to move outside of California for an Assistant
16 Manager position. Despite the fact that Costco opened many new warehouses across the United
17 States, Ms. Horstman was not offered an Assistant General Manager position in any of them. Ms.
18 Horstman was prevented from applying for specific openings in these warehouses because Costco
19 does not post or otherwise notify employees of these openings and has no application procedure
20 for such positions, instead, Plaintiff is informed and believes that these openings were filled
21 mostly with males with less experience and inferior qualifications.
22 102. Ms. Horstman ceased working for Costco in July 2004 because she became
23 convinced that despite her excellent performance, her 23 years of service, and her repeated
24 requests, Costco would never promote her to Assistant General Manager.
25 103. On or about October 11, 2003, Mr. Horstman filed a charge of discrimination with
26 the United States Equal Employment Opportunity Commission (“EEOC”) and the California
27

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1 Department of Fair Employment and Housing (“DFEH”). Attached to this Complaint as Exhibit
2 C, and incorporated herein by reference, is a copy of that charge. Ms. Horstman has received a
3 Notice of Right to Sue from the EEOC and has timely filed this action.
4 104. Costco has discriminated against Ms. Horstman on account of her gender as
5 follows:
6 a. By failing and refusing to consider her for promotional opportunities on the
7 same basis as males are considered;
8 b. By failing and refusing to provide her with timely and accurate notice of
9 employment opportunities;
10 c. By relying on a centralized system of pre-selection through the promotable
11 lists and Green Room;
12 d. By relying on unvalidated criteria to make promotion decisions;
13 e. By promoting similarly-situated and less qualified males more rapidly that
14 her;
15 f. By failing to change a system for pre-selection and selection that Costco
16 knew was disadvantaging and discriminating against women;
17 g. By giving her shifting and inconsistent requirements for promotion;
18 h. By discouraging her from seeking promotion; and
19 i. By promoting similarly-situated and less qualified males more rapidly than
20 her.
21 105. Ms. Horstman is informed and believes that Costco has discriminated against her
22 in the same manner that it discriminates against the Classes generally. Her primary intention with
23 regard to this case is to end Costco’s pattern and practice of discrimination.
24 CLAIMS OF NAMED PLAINTIFF ELAINE SASAKI
25 106. Plaintiff Elaine Sasaki, a female, was hired by Costco as a front end cashier in
26 1985. She is currently an Assistant General Manager at Costco’s Clovis, California warehouse.
27

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1 107. Ms. Sasaki has been a Costco employee for 27 years. Within five years of being
2 hired, Ms. Sasaki was promoted to staff-level manager and subsequently held every staff level
3 position in the Clovis, California warehouse. After a brief stint as Administrative Assistant to the
4 Regional Vice President in the Bay Area Region, she was promoted to the position of Assistant
5 Manager and was assigned to the Chico, California store in November 1996. In March 2001 she
6 became an Assistant Manager in the Texas Region and then transferred to the Visalia, California
7 store in Costco’s Bay Area Region as Assistant Manager in March 2002.
8 108. Throughout her time at Costco, Ms. Sasaki has received excellent performance
9 reviews and has been repeatedly told she was eligible for promotion. In 2000, she was told that
10 she was on the “promotable list.” From the time of her promotion to Assistant Manager in 1996,
11 Ms. Sasaki has repeatedly told Costco that she is interested in a promotion to General Manager.
12 Despite her desire to stay in the Bay Area region, in March 2001, she transferred to the Texas
13 region because she was informed and believed that there would be more opportunity for
14 promotion to General Manager in that region. In March 2002, Ms. Sasaki returned to Northern
15 California after being told she would be considered for a General Manager position within the
16 next one to two years either in the Visalia, California warehouse or in one of the half-dozen soon-
17 to-be-opened Costco warehouses. However, despite the fact that Costco has at least 100
18 warehouses in California and that there have been numerous openings in these and other
19 warehouses in the Bay Area Region during the relevant time, Ms. Sasaki has not been offered a
20 position in any of them.
21 109. Ms. Sasaki has been prevented from applying for specific openings in these
22 warehouses because Costco does not post or otherwise notify employees of these openings.
23 Instead, Ms. Sasaki is informed and believes that many of these openings have been filled with
24 males with less or similar experience and inferior qualifications.
25 110. In September 2003, Ms. Elaine Sasaki complained in writing to Costco’s Director
26 of Human Resources, Judy Vadney, about the company’s promotion system, specifically
27

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1 highlighting “the subjective application of standards” and “the appearance … of gender bias.”
2 She wrote: “I want to be evaluated on facts. I want to be held to the same standards as my peers,
3 but it does not help that these standards seem to shift with each meeting.”
4 111. On or about March 1, 2005, Ms. Sasaki filed a charge of discrimination with the
5 United States Equal Employment Opportunity Commission (“EEOC”), which, plaintiffs are
6 informed and believe, was cross-filed with the California Department of Fair Employment &
7 Housing. Attached to this Third Amended Complaint as Exhibit D, and incorporated by
8 reference, is a copy of that charge. Plaintiffs have received a right to sue letter for this charge.
9 112. Costco has discriminated against Ms. Sasaki on account of her gender as follows:
10 a. By failing and refusing to consider her for promotional opportunities on the
11 same basis as males are considered;
12 b. By failing and refusing to provide her with timely and accurate notice of
13 employment opportunities;
14 c. By relying on a centralized system of pre-selection through the promotable
15 lists and Green Room;
16 d. By relying on unvalidated criteria to make promotion decisions;
17 e. By promoting similarly-situated and less qualified males more rapidly that
18 her;
19 f. By failing to change a system for pre-selection and selection that Costco
20 knew was disadvantaging and discriminating against women; and
21 g. By promoting similarly-situated and less qualified males more rapidly than
22 her.
23
113. Ms. Sasaki is informed and believes that Costco has discriminated against her in 24
the same manner that it discriminates against the Classes generally. Her primary intention with 25
regard to this case is to end Costco’s pattern and practice of discrimination. 26

27

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1 FIRST CLAIM FOR RELIEF:

2

(Title VII of the Civil Rights Act of 1964

3

42 U.S.C. §§ 2000(3), et. seq. on behalf of the Title VII class)

4

114. Plaintiffs incorporate Paragraphs 1 through 113.

5

115. This claim is brought on behalf of Plaintiffs and the Classes.

6

116. The foregoing conduct violates Title VII of the Civil Rights Act, 42 U.S.C. §§

7 2000(e), et. seq.

8

117. Plaintiffs have received Right to Sue letters from the EEOC and have commenced

9 this action in a timely manner. Plaintiffs have therefore exhausted their administrative remedies

10 and fulfilled all conditions precedent to suit.

11

118. Costco has maintained a system for making decisions about promotions into AGM

12 and GM positions that relies on a system of pre-selection and grooming through the Promotable

13 Lists and the Green Room, as well as unvalidated selection criteria, and lacks any meaningful

14 posting and application process. This system has a disparate impact on female employees.

15

119. Costco’s promotion system for Assistant General Manager and General Manager

16 is not justified by business necessity or, if it could be justified, there are less discriminatory

17 alternatives to it.

18

120. Costco’s promotion system for Assistant General Manager and General Manager

19 is not capable of separation for purposes of analysis.

20

121. Costco’s discriminatory practices described above have resulted in a loss of past

21 and future wages and other job benefits.

22

122. Plaintiffs request relief as provided for below in the Prayer.

23

24

SECOND CLAIM FOR RELIEF (Title VII of the Civil Rights Act of 1964

25

42 U.S.C §§ 2000 (e), et. seq. on behalf of Title VII class)

26

123. Plaintiffs incorporate Paragraphs 1 through 113.

27

124. This claim is brought on behalf of Plaintiffs and the Classes.

28

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1 125. The foregoing conduct violates Title VII of the Civil Rights Act, 42 U.S.C. §§

2 2000(e), et. seq.

3 126. Costco has engaged in a pattern and practice of intentional discrimination against

4 the class and has denied women the same opportunities for promotion afforded to similarity

5 situated male employees.

6 127. Costco’s discriminatory practices described above have resulted in a loss of past

7 and future wages and other job benefits, and have caused Plaintiffs to suffer humiliation,

8 embarrassment and emotional distress.

9 128. Costco acted with malice or reckless indifference to the protected rights of

10 Plaintiffs and the members of the Classes. Plaintiffs and the members of the Classes are thus

11 entitled to recover punitive damages in an amount to be determined according to proof.

12 129. Plaintiffs request relief as provided for below in the Prayer.

13 THIRD CLAIM FOR RELIEF

14

(California Fair Employment and Housing Act,

Govt. Code §§ 12940, et. seq. on behalf of Plaintiffs only) 15

130. Plaintiffs incorporate Paragraphs 1 through 113. 16

131. This claim is brought on behalf of the Plaintiffs only. 17

132. The foregoing conduct violates the California Fair Employment and Housing Act, 18

Government Code §§ 12940 et. seq. Plaintiffs have received a right to sue letter from the DFEH 19

and have commenced this action in a timely manner. 20

133. Defendant’s discriminatory practices have resulted in the loss of past and future 21

wages and other job benefits, and have caused Plaintiffs to suffer humiliation, embarrassment, 22

and emotional distress. 23

134. Costco acted with oppression, fraud and malice. Plaintiffs are thus entitled to 24

recover punitive damages in an amount to be determined according to proof. 25

26

27

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1

FOURTH CLAIM FOR RELIEF

2

(Title VII of the Civil Rights Act of 1964

42 U.S.C. §§ 2000(e), et. seq. for Retaliation Against Plaintiff Ellis) 3

135. Plaintiff Ellis incorporates Paragraphs 1 through 98.

4

136. This claim is brought on behalf of Plaintiff Shirley “Rae” Ellis individually for her

5

retaliation claim.

6

137. Defendant discriminated against Plaintiff Ellis on the basis of her gender by

7

refusing to promote her and by retaliating against her for filing a charge of discrimination with

8

the EEOC.

9

138. Defendant’s discriminatory and retaliatory practices have resulted in the loss of

10

past and future wages and other job benefits, and have caused Plaintiff Ellis to suffer humiliation,

11

embarrassment, and emotional distress.

12

139. Costco acted with malice of reckless indifference to the protected rights of

13

Plaintiff Ellis. Plaintiff Ellis is thus entitled to recover punitive damages in an amount to be

14

determined according to proof.

15

140. Plaintiff Ellis therefore requests relief as provided for below in the Prayer.

16

17

RELIEF ALLEGATIONS

18

19

141. Plaintiff Sasaki and the Injunctive Relief Class have no plain, adequate, or

20 complete remedy at law to redress the wrongs alleged, and the injunctive relief sought in this

21 action is the only means of securing complete and adequate relief. Plaintiff Sasaki and the

22 Injunctive Class are now suffering and will continue to suffer irreparable injury from Costco’s

23 discriminatory acts and omissions.

24

142. The actions on the part of Costco have caused and will continue to cause Plaintiffs

25 and members of the Classes substantial losses in earnings, promotional opportunities, and other

26 employment benefits, and have caused Plaintiffs and members of the Classes to suffer and

27 continue to suffer humiliation, embarrassment, and anguish, all to their damage in an amount

28

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1 according to proof.
2

PRAYER FOR RELIEF

3 Plaintiffs and the Classes pray for relief as follows:
4 1. Certification of the Injunctive Relief class, designation of Plaintiff Elaine Sasaki as
5 representative of the Injunctive Relief Class, and designation of her counsel of record as Class
6 Counsel;
7 2. Certification of the Monetary Relief class, designation of Plaintiffs Shirley “Rae”
8 Ellis, Leah Horstman, Elaine Sasaki as representatives of the Monetary Relief Class, and
9 designation of their counsel of record as Class Counsel;
10 3. All damages which the Plaintiffs and the Classes have sustained as a result of
11 Costco’s conduct, including back pay, general and special damages for lost compensation and job
12 benefits that they would have received but for the discriminatory practices of Costco, and for the
13 emotional distress, humiliation, embarrassment, and anguish, according to proof;
14 4. For Plaintiffs’ individual claims, all damages they have sustained as a result of
15 Defendant’s conduct, including back pay, front pay, general and specific damages for lost
16 compensation and job benefits they would have received but for the discriminatory practices of
17 defendant, and damages for emotional distress, according to proof;
18 5. Exemplary and punitive damages for the Classes in an amount consistent with the
19 law;
20 6. A preliminary and permanent injunction against Costco and its officers, owners,
21 agents, successors, employees, representatives, and any and all persons acting in concert with
22 them, that requires the following:
23 a. desisting from engaging in each of the unlawful practices, policies,
24 customs, and usages set forth in this complaint;
25 b. adopting non-discriminatory and objective promotion standards;
26 c. creating a transparent and non-discriminatory job posting and application
27

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1 process for Assistant General Manager and General Manager positions;
2 d. instituting an affirmative action policy to ensure that women receive the
3 share of Assistant General Manager and General Manage positions they would have obtained
4 were it not for Costco’s discriminatory practices; and
5 e. creating a monitoring and reporting system to ensure that injunctive relief
6 is fully implemented.
7 7. A declaratory judgment that the challenged practices are unlawful under 42 U.S.C.
8 §§ 2000(e), et. seq., Title VII of the Civil Rights Act of 1964.
9 8. An order assigning Plaintiffs and the Classes to those jobs they would have held
10 but for Defendant’s discriminatory practices;
11 9. An adjustment of the wage rates, benefits, and seniority rights for Plaintiffs and the
12 Classes to that level which Plaintiffs and the Classes would be enjoying but for Defendant’s
13 discriminatory practices;
14 10. For prejudgment interest to the extent permitted by law;
15 11. For costs and expenses of suit incurred, including reasonable attorneys’ fees to the
16 extent available by law; and
17 12. For such other legal and equitable relief as the Court may deem just and proper.
18

19

20

21

22

23

24

25

26

27

28

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1 Dated: March 23, 2012 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

By: /s/ Jocelyn D. Larkin________ Jocelyn D. Larkin
THE IMPACT FUND Jocelyn D. Larkin (SBN: 110817) 125 University Ave., Suite 102 Berkeley, CA 94710 Telephone: (510) 845-3473 Facsimile: (510) 845-3654 jlarkin@impactfund.org
Additional Counsel for Plaintiffs
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Kelly Dermody (SBN: 171716) Daniel Hutchinson (SBN: 239458) Embarcadero Center West 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 kdermody@lchb.com
DAVIS, COWELL & BOWE LLP Steve Stemerman (SBN:067690) Elizabeth A. Lawrence (SBN:111781) 595 Market Street, #1400 San Francisco, CA 94105 Telephone: (415) 597-7200 Facsimile: (415) 597-7201 eal@dcbsf.com
ALTSHULER BERZON LLP James M. Finberg (SBN: 114850) Eve H. Cervantez (SBN: 164709) 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 jfinberg@altshulerberzon.com

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1

2 JURY TRIAL DEMAND
3 Plaintiffs and the Classes they represent demand jury trial on all claims where such trial is
4 authorized by law.
5 //
6

7 Dated: March 23, 2012 8

By: /s/ Jocelyn D. Larkin________ Jocelyn D. Larkin

9

THE IMPACT FUND

Jocelyn D. Larkin (SBN: 110817)

10

125 University Ave., Suite 102

Berkeley, CA 94710

11

Telephone: (510) 845-3473

Facsimile: (510) 845-3654

12

jlarkin@impactfund.org

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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Case3:04-cv-03341-EMC Document537-1 Filed03/23/12 Page1 of 3
Exhibit A

Case3:04-cv-03341-EMC Document537-1 Filed03/23/12 Page2 of 3

Case3:04-cv-03341-EMC Document537-1 Filed03/23/12 Page3 of 3

Case3:04-cv-03341-EMC Document537-2 Filed03/23/12 Page1 of 4
Exhibit B

Case3:04-cv-03341-EMC Document537-2 Filed03/23/12 Page2 of 4

Case3:04-cv-03341-EMC Document537-2 Filed03/23/12 Page3 of 4

Case3:04-cv-03341-EMC Document537-2 Filed03/23/12 Page4 of 4

Case3:04-cv-03341-EMC Document537-3 Filed03/23/12 Page1 of 4
Exhibit C

Case3:04-cv-03341-EMC Document537-3 Filed03/23/12 Page2 of 4

Case3:04-cv-03341-EMC Document537-3 Filed03/23/12 Page3 of 4

Case3:04-cv-03341-EMC Document537-3 Filed03/23/12 Page4 of 4

Case3:04-cv-03341-EMC Document537-4 Filed03/23/12 Page1 of 4
Exhibit D

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1 THE IMPACT FUND Jocelyn D. Larkin (SBN: 110817)
2 Robert Schug (SBN: 249640) Meredith Johnson (SBN: 291018)
3 125 University Avenue, Suite 102 Berkeley, CA 94710
4 Telephone: (510) 845-3473 Facsimile: (510) 845-3654
5 jlarkin@impactfund.org

DAVIS, COWELL & BOWE, LLP Steve Stemerman (SBN: 067690) Elizabeth A. Lawrence (SBN: 111781) 595 Market Street, #1400 San Francisco, CA 94105 Telephone: (415) 597-7200 Facsimile: (415) 597-7201 eal@dcbsf.com

6 LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C.
7 Bill Lann Lee (SBN: 108452) Lindsay Nako (SBN: 239090)
8 476 9th Street Oakland, CA 94607
9 Telephone: (510) 839-6824 Facsimile: (510) 839-7839
10 blee@lewisfeinberg.com

ALTSHULER BERZON LLP James M. Finberg (SBN: 114850) 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 jfinberg@altshulerberzon.com

11 Kelly M. Dermody (SBN: 171716) kdermody@lchb.com
12 Daniel M. Hutchinson (SBN: 239458) dhutchinson@lchb.com
13 LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
14 275 Battery Street, 29th Floor San Francisco, CA 94111-3339
15 Telephone: 415.956.1000 Facsimile: 415.956.1008
16 Attorneys for Plaintiffs and Certified Classes
17 UNITED STATES DISTRICT COURT
18 NORTHERN DISTRICT OF CALIFORNIA
19

20 SHIRLEY "RAE" ELLIS, et al.,
21 Plaintiffs,
22 v.
23 COSTCO WHOLESALE CORPORATION,
24 Defendant.
25
26

Case No. C04-3341 EMC

Assigned to Hon. Edward M. Chen

NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

Hearing Date: Hearing Time: Courtroom:

May 22, 2014 1:30 p.m. 5 (17th Floor)

27

28

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1

TABLE OF CONTENTS

2

Page

3 NOTICE OF MOTION AND MOTION; RELIEF SOUGHT ....................................................... 1

4 INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 2

5 I.

PROCEDURAL HISTORY................................................................................................ 2

6

A. The Class Action Complaint ................................................................................... 2

7

B. Discovery and Motion Practice ............................................................................... 2

II. SETTLEMENT AND PRELIMINARY APPROVAL....................................................... 4

8 III. THE NOTICE WAS DISTRIBUTED ACCORDING TO THE PRELIMINARY

9

APPROVAL ORDER AND THERE ARE NO OBJECTIONS TO DATE....................... 5

IV. THE TERMS OF THE PROPOSED SETTLEMENT ....................................................... 7

10 ARGUMENT .................................................................................................................................. 9

11 I. FINAL SETTLEMENT APPROVAL SHOULD BE GRANTED..................................... 9

12

A. The Legal Standards for Settlement Approval........................................................ 9

B. The Relevant Factors Weigh in Favor of Granting Final Approval...................... 10

13

1. Strength of the case ................................................................................... 10

14

2. Risk, expense, complexity, and duration of further litigation................... 11

15

3. Risk of maintaining class status through trial ........................................... 12

4. Amount offered in settlement versus outcome at trial .............................. 12

16

5. Extent of discovery completed and the stage of proceedings ................... 13

17

6. Experience and views of counsel .............................................................. 14

18

7. The reaction of the class members ............................................................ 14

C. The Proposed Cy Pres Beneficiary is Reasonable ................................................ 15

19

D. The Named Plaintiffs’ Request for Service Awards is Reasonable ...................... 16

20

E. Plaintiffs’ Request for Attorneys’ Fees and Costs is Reasonable ......................... 16

21 CONCLUSION ............................................................................................................................. 17

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2 3 Cases

Page

4 Chun-Hoon v. McKee Foods Corp.,
5 716 F. Supp. 2d 848 (N.D. Cal. 2010) ............................................................................ 15 Dennis v. Kellogg Co.,
6 697 F.3d 858 (9th Cir. 2012) .......................................................................................... 15
7 Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ............................................................................................ 3
8 Ellis v. Naval Air Rework Facility,
9 87 F.R.D. 15 (N.D. Cal. 1980),
10 aff’d, 661 F.2d 939 (9th Cir. 1981)................................................................................... 9 Garner v. State Farm Mut. Auto. Ins. Co.,
11 2010 WL 1687832 (N.D. Cal. Apr. 22, 2010) ................................................................ 15
12 Greko v. Diesel U.S.A., Inc.,
13 2013 WL 1789602 (N.D. Cal. Apr. 26, 2013) ................................................................ 12 Hanlon v. Chyrsler Corp.,
14 150 F.3d 1011 (9th Cir. 1998) .................................................................................... 9, 10
15 In re Heritage Bond Litig., 2005 WL 1594403 (C.D. Cal. June 10, 2005) ................................................................ 11
16 In re Synocor ERISA Litig.,
17 516 F.3d 1095 (9th Cir. 2008) .......................................................................................... 9
18 Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012),
19 cert. denied, 134 S. Ct. 8 (2013). .................................................................................... 15
20 Nachshin v. AOL, LLC,
21 663 F.3d 1034 (9th Cir. 2011) ........................................................................................ 15 Officers for Justice v. Civil Serv. Comm’n of San Francisco,
22 688 F.2d 615 (9th Cir.1982) ....................................................................................... 9, 14
23 Officers for Justice v. Civil Serv. Comm’n. of San Francisco, 473 F. Supp. 801 (N.D. Cal. 1979),
24 aff’d, 688 F.2d 615 (9th Cir. 1982)................................................................................... 9
25 Pierce v. Rosetta Stone, Ltd.,
26 2013 WL 5402120 (N.D. Cal. Sept. 26, 2013) ............................................................... 14 Rodriguez v. W. Publ’g Corp.,
27 563 F.3d 948 (9th Cir. 2009) .......................................................................................... 16
28

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Schaffer v. Litton Loan Servicing, LP,

4 2012 WL 10274679 (C.D. Cal. Nov. 13, 2012) ............................................................... 9 Staton v. Boeing Co.,
5 327 F.3d 938 (9th Cir. 2003) ........................................................................................ 16

6 Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541 (2011)................................................................................................... 11
7 Wren v. RGIS Inventory Specialists,

8 2011 WL 1230826 (N.D. Cal. Apr. 1, 2011),

9 supplemented, 2011 WL 1838562 (N.D. Cal. May 13, 2011).................................. 15, 16
Statutes
10
California Fair Employment & Housing Act, 11 Government Code §§ 12940 et seq................................................................................... 2

12

Title VII of the Civil Rights Act of 1964, 42 U.S.C §§ 2000(e) et seq. .............................................................................................. 2

13 Rules

14 Fed. R. Civ. P. 23(b)(2) ........................................................................................................ 3 15 Fed. R. Civ. P. 23(e) ......................................................................................................... 1, 9

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

NOTICE OF MOTION AND MOTION; RELIEF SOUGHT

2

Please take notice that, on May 22, 2014 at 1:30 p.m. before the Honorable Judge Edward

3 M. Chen, United States District Court, 450 Golden Gate Ave., San Francisco, CA, Plaintiffs will

4 seek an order granting final class action settlement approval.

5

Pursuant to Federal Rule of Civil Procedure 23(e), Plaintiffs request that the Court:

6 (1) grant Plaintiffs’ Motion for Final Approval of Class Action Settlement; (2) grant Plaintiffs’

7 Application for Service Awards to Class Representatives in the amount of $10,000 each; and (3)

8 grant Plaintiffs’ Motion for Attorneys’ Fees and Costs in the amount of $3,950,000 for work

9 performed through November 30, 2013, $633,959.64 in expert fees and costs, and $300,000 for

10 future work monitoring and administering the settlement. (See Proposed Order.)

11

INTRODUCTION

12

Plaintiffs request that this Court grant final approval of the proposed class action

13 settlement. The settlement is “fair, reasonable, and adequate,” as required by Rule 23. Fed. R.

14 Civ. P. 23(e)(2). The programmatic relief obtained by Plaintiffs includes substantial changes to

15 Costco’s evaluation and promotion processes that will advance the goal of equal promotion

16 opportunities for female Costco warehouse employees. The $8 million settlement fund will

17 provide adequate and meaningful relief to class members through a streamlined claims process.

18 The proposed settlement is reasonable in light of the strength of Plaintiffs’ case, as well as the

19 risk, expense, complexity, and duration of further litigation, including the risk of maintaining

20 class action status through trial. Class Counsel, who are experienced in complex class action

21 litigation, have conducted significant discovery over nearly a decade of litigation, and are

22 intimately familiar with Plaintiffs’ claims and Costco’s defenses. The settlement was obtained

23 after months of extensive negotiations with a well-respected mediator. Class members have

24 responded positively; as of April 16, 2014, only seventy-seven of more than 1,300 class members

25 have opted out, and no class member has filed an objection. The settlement has the full support

26 of each of the three Named Plaintiffs.

27

The Court should also approve the Named Plaintiffs’ request for service awards, as well as

28 Plaintiffs’ request for attorneys’ fees and costs. As explained in Plaintiffs’ Application for

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1 Service Awards to Class Representatives, the three Class Representatives have devoted

2 substantial time to this case, pursuing it for nearly ten years with no guarantee of success. (ECF

3 No. 771.) Service awards of $10,000 each are appropriate. Likewise, as set forth in Plaintiffs’

4 Motion for Attorneys’ Fees and Costs, Class Counsel have worked diligently and efficiently over

5 the course of this litigation, and have obtained an excellent result. (ECF No. 760.) Costco does

6 not oppose either of these requests, and the parties have stipulated to the amount of fees and costs

7 as set forth in the parties’ joint Stipulation Regarding Motion for Attorneys’ Fees and Costs. (See

8 ECF No. 770). Final approval should be granted.

9

BACKGROUND

10 I. PROCEDURAL HISTORY

11

A. The Class Action Complaint

12

Plaintiff Shirley “Rae” Ellis filed a class charge of discrimination with the EEOC on

13 October 30, 2002. (ECF No. 1 at 18-22.) She filed this lawsuit on August 17, 2004. (Id. at 17.)

14 In the Fourth Amended Complaint, the Named Plaintiffs—Ms. Ellis, Leah Horstman, and Elaine

15 Sasaki—bring claims against Defendant Costco Wholesale Corporation on behalf of themselves

16 and all others similarly situated, alleging violations of Title VII of the Civil Rights Act of 1964,

17 42 U.S.C §§ 2000(e) et seq. (ECF No. 718.) Plaintiffs allege that Costco discriminates against

18 female employees by using a uniform, corporate-directed system that fails to promote equally or

19 better qualified women into Assistant General Manager (“AGM”) and General Manager (“GM”)

20 positions. (Id. ¶¶ 115-130.) In addition to the class claims, the Named Plaintiffs bring individual

21 discrimination claims under the California Fair Employment & Housing Act, Government Code

22 §§ 12940 et seq. (Id. ¶¶ 131-135.) Ms. Ellis and Ms. Sasaki also allege individual Title VII

23 retaliation claims. (Id. ¶¶ 136-147.)

24

B. Discovery and Motion Practice

25

As set forth in detail in Plaintiffs’ Motion for Preliminary Approval, the Named Plaintiffs

26 pursued their claims and the claims of the class through extensive discovery. (ECF No. 755 at 2-

27 3.) Over nine years of litigation, Class Counsel served a total of ten sets of requests for

28 production, through which they obtained and reviewed several hundred thousand pages of

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1 documents. (Id.) Counsel also served twenty-eight interrogatories and took fifteen depositions,

2 including three Rule 30(b)(6) depositions. (Id.) Class Counsel defended the depositions of the

3 three Named Plaintiffs (twice each) and five class members. (ECF No. 760 at 4-5.) Counsel assisted

4 the Named Plaintiffs in responding to document requests, interrogatories, and requests for admissions.

5 (Id.) Plaintiffs also retained three experts, each of whom provided extensive analysis of the

6 employment practices at issue. (Id.) Costco deposed each of Plaintiffs’ experts, and Class Counsel

7 also deposed three of Costco’s four experts. (Id.)

8

The parties also engaged in extensive motion practice. (ECF No. 755 at 3-6.) On October

9 15, 2004, Costco filed a motion to transfer venue. (See ECF Nos. 6, 65, 66, 70, 74, 77, 81.) The

10 Court denied the motion on May 31, 2005. (ECF No. 98.)

11

On August 28, 2006, Plaintiffs filed their motion for class certification. (See ECF No.

12 127, 433, 435, 436, 447.) On January 11, 2007, the Court granted the motion and certified a class

13 under Fed. R. Civ. P. 23(b)(2) of “all current and former female Costco employees nationwide

14 who have been denied promotion to GM or AGM or denied promotion to Senior Staff positions

15 since January 3, 2002.” (ECF No. 494 at 35-36.) The parties later stipulated to a slightly

16 narrower class definition. (ECF No. 509 ¶ 1.)

17

Costco sought and was granted permission to appeal under Fed. R. Civ. P. 23(f). (Case

18 No. 07-15838, ECF No. 1.) Oral argument was held on April 14, 2008. (Case No. 07-15838,

19 ECF No. 47.) However, the Ninth Circuit’s decision was delayed by the appellate proceedings in

20 Dukes v. Wal-Mart Stores, Inc., No. C01-02252 (N.D. Cal.). (See ECF No. 755 at 4-5.) After

21 several rounds of supplemental briefing, the Ninth Circuit issued its decision on September 16,

22 2011. See Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011). The Ninth Circuit

23 affirmed in part, vacated in part, and remanded. See id. at 974-75.

24

On remand, the parties agreed that Plaintiffs would file a Third Amended Complaint to

25 reflect the intervening change in the law. (ECF No. 535 at 5.) Costco filed a motion for an order

26 eliminating class claims, and Plaintiffs filed an affirmative motion for class certification. (ECF

27 Nos. 543, 664.) On September 25, 2012, the Court granted Plaintiffs’ motion and certified an

28 Injunctive Relief Class:

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1

2

All women who are currently employed or who will be employed at any Costco

warehouse in the U.S. who have been or will be subject to Costco’s system for

3

promotion to Assistant General Manager and/or General Manager positions.

4 (ECF No. 693 at 85.) The Court also certified a Monetary Relief Class (back pay, compensatory,

5 and punitive damages):

6

All women who have been employed at any Costco warehouse store in the U.S.

since January 3, 2002 who have been subject to Costco’s system for promotion to

7

Assistant General Manager and/or General Manager positions.

8 (Id.) Costco’s second petition to appeal under Fed. R. Civ. P. 23(f) was denied. (Case No. 12-

9 80188, ECF No. 5.)

10

Court-approved notice was issued in December 2012. (See ECF No. 717.)

11 Approximately 100 class members opted out. (ECF No. 755 at 6.) The parties subsequently

12 engaged in discovery in preparation for dispositive motions and trial. At the time the proposed

13 settlement was reached, both parties were preparing to file multiple summary judgment and

14 Daubert motions, and Costco was preparing a motion to decertify the classes. (See, e.g., ECF

15 Nos. 697, 747.)

16 II. SETTLEMENT AND PRELIMINARY APPROVAL

17

As detailed in Plaintiffs’ Motion for Preliminary Approval, the parties devoted substantial

18 time and effort over the course of the litigation to reaching the proposed settlement agreement.

19 (ECF No. 755 at 6-8.) The parties attended five mediation sessions with Mark Rudy, an

20 experienced and respected mediator—two sessions in 2004 and three in 2013. (Id.) The parties

21 also conducted countless informal sessions—both in person and over the phone—in order to

22 narrow the issues and negotiate the details of the agreement. (Id.) On October 11, 2013, the

23 parties reached an agreement on the principal settlement terms of a class-wide settlement, which

24 was submitted to the Court in camera. (See ECF No. 749.) A final agreement was signed on

25 December 17, 2013. (ECF No. 755 at 8.)

26

On December 17, 2013, Plaintiffs filed an unopposed Motion for Preliminary Settlement

27 Approval, as well as a Motion for Attorneys’ Fees and Costs. (ECF Nos. 755, 760.) On January

28 22, 2014, the Court ordered the parties to submit supplemental briefing addressing various

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1 questions about the proposed settlement. (ECF No. 767.) The parties filed a Joint Supplemental

2 Brief on January 30, 2014, addressing the issues identified by the Court, and notifying the Court

3 of the parties’ selection of a proposed cy pres recipient, the Network of Executive Women,

4 Consumer Products/Retail. (ECF No. 775.) Plaintiffs also filed a Supplemental Application for

5 Service Awards to Class Representatives. (ECF No. 771.)

6

Prior to the hearing on preliminary approval, the parties filed a stipulation regarding

7 Plaintiffs’ Motion for Attorneys’ Fees and Costs. (ECF No. 770.) Under the stipulation, Costco

8 agreed not to oppose the motion, and agreed to pay an award equal to or lower than the following:

9 $3,950,000 in attorneys’ fees for work performed through November 30, 2013, $633,959.64 in

10 expert fees and costs, and $300,000 for future work monitoring and administering the settlement.

11 (ECF No. 770.)

12

A hearing on Plaintiffs’ Motion for Preliminary Approval was held on February 6, 2014.

13 At the conclusion of the hearing, the Court indicated that the settlement would be preliminarily

14 approved. (Ex. 1 (2/6/14 Hearing Tr.) at 16:17-20.) The Court indicated that the settlement fund

15 was adequate, and provided meaningful relief in light of the litigation risks. (Id. at 12:21-13-2.)

16 The Court commended the parties on “a very finely honed settlement that you worked out, and

17 one that I think has appeared, from all appearances, fair and adequate.” (Id. at 18:1-3.)

18

The Court granted preliminary approval on February 12, 2014. (ECF No. 780.) The

19 Court concluded that the proposed settlement was the product of extensive, arms’ length

20 negotiations by counsel familiar with the strengths and weaknesses of the case. (Id. at 1.) The

21 Court found that the proposed settlement had no obvious defects and fell within the range of

22 approval such that notice was appropriate. (Id.) The Court also approved the proposed Class

23 Notice and distribution plan. (Id. at 2-3.)

24 III. THE NOTICE WAS DISTRIBUTED ACCORDING TO THE PRELIMINARY APPROVAL ORDER AND THERE ARE NO OBJECTIONS TO DATE
25 Pursuant to the agreement, the notice process is being administered by Settlement
26 Services, Inc. (Am. Agreement § 2.12.) Notice of the proposed class action settlement has been
27 distributed in the form and manner approved by the Court. (See ECF No. 780 at 3.)
28

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1

In preparation for mailing notice, Costco generated an updated class list, which was

2 shared with Class Counsel for review. (Larkin Decl. ¶ 3.) The 102 Class Members who had

3 previously opted out of the litigation were excluded, and any other discrepancies, such as

4 outdated addresses, were resolved. (Id.) The final list of the Class Members’ names and

5 identifying information was provided to Settlement Services on February 20, 2014. (Patton Decl.

6 ¶ 3.) The final class list included 1,318 members. (Id.)

7

On February 26, 2014, Settlement Services mailed a notice packet to each of the class

8 members by post-marked First Class U.S. Mail.1 (Patton Decl. ¶ 4.) Each notice packet

9 contained the Notice of Class Action Settlement and the Opt-Out Form, the form and content of

10 which was approved by the Court. (Id. ¶ 2.) Before mailing, Settlement Services used the United

11 States Postal Service National Change of Address Database to verify the addresses of the Class

12 Members. (Id. ¶ 3.) Approximately forty-one addresses were updated. (Id.) When Notices were

13 returned as undeliverable, they were mailed to updated addresses when possible. (Id. ¶ 5.) As of

14 the date of this brief, only thirty-two Notices were returned undeliverable, and all but two were

15 re-mailed to updated addresses. (Id.)

16

The reaction of the class members to the proposed settlement has been positive. As of

17 April 16, 2014, only seventy-seven of the 1,318 members have opted out, and no objections have 18 been filed.2 (Id. ¶¶ 6-7.) The deadline for class members to opt out or file objections is April 28, 19 2014.3 (See ECF No. 780 at 3 (setting deadline sixty days from the completion of the first

20 mailing).) Pursuant to the Preliminary Approval Order, the parties will file responses to any

21 objections no later than one week before the final fairness hearing. (Id.)

22

23 1 Plaintiffs are informed that, on February 24, 2014, Costco mailed notice of the proposed

24

settlement to the Attorney Generals of all states where class members reside, as required by the Class Action Fairness Act.

25 2 Costco has the right to rescind the agreement at any time up to ten days before the date of final approval if ten or more class members opt out, or if the United States EEOC initiates an

26 enforcement proceeding alleging gender discrimination in connection with the promotions that are the subject of this action. (Am. Agreement § 9.)

27 3 Plaintiffs will supplement this filing after the opt-out deadline to provide the Court with the final

number of opt-outs and their identities for inclusion in the Proposed Order. (See Proposed

28 Order.)

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1 IV. THE TERMS OF THE PROPOSED SETTLEMENT

2

The terms of the settlement are set forth in full detail in Plaintiffs’ Motion for Preliminary

3 Approval and the parties’ Joint Supplemental Brief. (ECF No. 755 at 8-16; ECF No. 775.) The

4 final Settlement Agreement is attached as Exhibit 1 to the Court’s Order Granting Preliminary

5 Approval. (ECF No. 780, Ex. 1 (“Am. Agreement”).) The settlement provides class-wide

6 programmatic relief tailored to the Title VII violations alleged, and also creates a formal claims

7 procedure through which the discrimination claims of the class members may be finally resolved.

8 (See id.) Costco will receive a release from the settlement class of all claims for individual and

9 class-wide declaratory, injunctive, and monetary relief. (See id.) The settlement is supported by

10 the Named Plaintiffs. (See ECF No. 757 (Ellis Decl.) ¶¶ 6-8; ECF No. 758 (Horstman Decl.) ¶ 5;

11 ECF No. 759 (Sasaki Decl.) ¶¶ 6-7.) The core provisions are summarized below:

12

Programmatic Relief: The proposed programmatic relief is designed to address the specific

13 gender promotion issues alleged in this litigation. (See Am. Agreement §§ 4, 13.) This relief

14 includes:

15

 use of an industrial organizational psychologist to conduct job analyses, evaluate promotion

16

processes, and develop selection criteria and tools for AGM and GM promotions;

17

 a posting process for AGM promotions;

18

 a registration of interest system for GM promotions;

19

 a merchandising training class for Senior Staff managers;

20

 a promotion process for AGM positions, including comprehensive records maintenance;

21

 internal training and communication concerning the implemented programs; and

22

 compliance procedures, including annual reporting by Costco.

23 (See id.) None of these business practices, which are critical to discouraging gender

24 discrimination at Costco, were in place prior to the start of this litigation.

25

Monetary Relief: The proposed settlement also provides extensive monetary relief. (See id.

26 §§ 3, 5.) This includes:

27

 a claims process to distribute an $8 million settlement fund, with nearly all of any remaining

28

amount going to the Network of Executive Women, Consumer Products/Retail, an

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1

organization dedicated to attracting, retaining, and advancing women in the retail and

2

consumer products industry;4

3

 claims submitted either by written submission or through formal arbitration, with a

4

confidential option for claims made by written submission;

5

 for successful non-confidential claims by written submission, awards of up to $150,000 for

6

AGM promotion claims, and up to $300,000 for GM promotion claims;

7

 for successful confidential claims by written submission, awards of up to $25,000 for AGM

8

promotion claims, and up to $50,000 for GM promotion claims;

9

 for successful claims by formal arbitration, awards of up to $250,000 for AGM promotion

10

claims, and up to $600,000 for GM promotion claims;

11

 the option of representation by Class Counsel free of charge; and

12

 attorneys’ fees and costs for prevailing claimants.

13 (See id.)

14

Scope of Release: The proposed settlement agreement gives Costco a release of claims

15 limited to the claims asserted in the Fourth Amended Complaint. (Id.§ 6.) In exchange for the relief

16 provided, members of the settlement class will release all claims for systemic injunctive relief for the

17 claims alleged in the case on behalf of the Injunctive Relief Class. (Id.) In addition, a class member

18 who submits claims through the monetary claims process shall, upon the date of her claim, release any

19 claim for failure to promote to AGM or GM not pursued through that process. (Id.) Each member of

20 the Monetary Relief Class who does not opt out and who does not submit a timely claim will also

21 release any claim that Costco, on the basis of her gender, denied her promotion to AGM or GM at any

22 time since January 3, 2002. (Id.)

23

Resolution of Named Plaintiffs’ Claims: A Named Plaintiff may choose to resolve all of

24 her claims against Costco by trial in this Court. (Id. § 10.) Any damages will not be taken from the

25 gross settlement fund. (Id.) In the alternative, a Named Plaintiff may submit only her promotion
26 4 The settlement provides that any funds not awarded to class members through the claims process “will be used as follows: (i) the first $100,000, or fraction thereof, will be used to pay the
27 Independent Consultant to the extent that Independent Consultant fees exceed $100,000; (ii) any remainder will be donated” to the proposed cy pres beneficiary, the Network of Executive
28 Women. (Am. Agreement § 3.5.)

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1 claims through the monetary claims process. (Id.) Under this scenario, any damages awarded will be

2 taken out of the gross settlement fund. (Id.) The Named Plaintiffs may seek Court-approved service

3 payments of up to $10,000 each, to be paid from the gross settlement fund. (Id.)

4

Attorneys’ Fees and Costs: The settlement permits Plaintiffs to apply for an award of

5 reasonable attorneys’ fees and costs for the litigation up to the date of final approval of the proposed

6 settlement. (Id. § 11.) Plaintiffs may also seek an award of reasonable fees and costs for their

7 anticipated services in monitoring the programmatic relief and administrating the monetary claims

8 settlement. (Id.)

9

ARGUMENT

10 I. FINAL SETTLEMENT APPROVAL SHOULD BE GRANTED

11

A. The Legal Standards for Settlement Approval

12

Courts in this circuit have long recognized that “‘there is a strong judicial policy that

13 favors settlements, particularly where complex class action litigation is concerned.’” Schaffer v.

14 Litton Loan Servicing, LP, 2012 WL 10274679, at *7 (C.D. Cal. Nov. 13, 2012) (quoting In re

15 Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008)). This is especially true in Title VII

16 cases, where “cooperation and voluntary compliance are the preferred means for achieving the

17 statutory goals.” Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980), aff’d, 661

18 F.2d 939 (9th Cir. 1981); see also, e.g., Officers for Justice v. Civil Serv. Comm’n of San

19 Francisco, 473 F. Supp. 801, 803 (N.D. Cal. 1979) (remaining “mindful . . . of the favored status

20 of settlements in Title VII litigation”), aff’d, 688 F.2d 615 (9th Cir. 1982).

21

Under Rule 23(e), “[t]he claims, issues, or defenses of a certified class may be settled . . .

22 only with the court’s approval.” Fed. R. Civ. P. 23(e). To meet the standard for approval, a

23 settlement must be “fundamentally fair, adequate, and reasonable.” Hanlon v. Chrysler Corp.,

24 150 F.3d 1011, 1026 (9th Cir. 1998). “It is the settlement taken as a whole, rather than the

25 individual component parts, that must be examined for overall fairness.” Id. The district court

26 has “the sound discretion” to approve or reject a settlement, since it has been “‘exposed to the

27 litigants, and their strategies, positions and proof.’” Id. (quoting Officers for Justice v. Civil Serv.

28 Comm’n of San Francisco, 688 F.2d 615, 626 (9th Cir. 1982)). Factors considered by the district

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1 court in assessing a proposed settlement include: (1) the strength of the plaintiffs’ case; (2) the

2 risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining

3 class action status throughout the trial; (4) the amount offered in the settlement; (5) the extent of

4 discovery completed and the stage of the proceedings; (6) the experience and views of counsel;

5 (7) the presence of a governmental participant; and (8) the reaction of the class members to the 6 proposed settlement.5 Id.

7

B. The Relevant Factors Weigh in Favor of Granting Final Approval

8

1. Strength of the case

9

The proposed settlement fairly reflects the strength of Plaintiffs’ case. While Plaintiffs

10 believe their claims are meritorious, Costco remains confident that its defenses are strong. (See

11 ECF No. 775 at 7-12.) As explained in the parties’ Joint Supplemental Brief, Plaintiffs contend

12 that they can prove their case by relying on certain evidence, including: evidence of a uniform

13 system of pre-selection and grooming of AGM and GM candidates, implemented by a small

14 group of senior decision-makers; evidence that some Costco managers held gender-based

15 stereotypes; and evidence that Costco learned about gender-based barriers to promotion as early

16 as 1999, among other evidence. (See id. at 7-9.) Plaintiffs have also obtained expert testimony

17 and statistical evidence to support their claims. (See id. at 9.)

18

Costco, meanwhile, contends that it can defeat Plaintiffs’ claims by pointing to: evidence

19 that the statistics from 1999-2004 differ significantly from current statistics; evidence of the need

20 for certain experience in order to be promoted to AGM positions; evidence of anti-discrimination

21 policies and practices; evidence of formal diversity initiatives; and evidence of female employees

22 who succeeded during the relevant time period, among other evidence. (See id. at 9-10.) In

23 addition, Costco has retained experts who dispute the findings of Plaintiffs’ experts, and contend

24 that the statistical evidence supports Costco’s position. (See id. at 10-11.)

25

Although Plaintiffs remain confident of their ability to prevail, they recognize that the

26 statistical evidence is stronger for some time periods than for others. (See Ex. 1 (2/6/14 Hearing

27 Tr.) at 5:2-7.) They also recognize the risk of loss at trial, as well as the inherent expense and 28 5 The seventh factor is inapplicable here because there is no governmental entity involved.

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1 delay associated with continuing to litigate. (See supra, Part 2.) In light of these factors, the

2 proposed settlement reflects the strength of Plaintiffs’ case and represents a fair and reasonable

3 outcome.

4

2. Risk, expense, complexity, and duration of further litigation

5

The risks associated with further litigation also weigh in favor of final approval. As

6 described in Plaintiffs’ Motion for Preliminary Approval, this case has been vigorously litigated

7 from the start. (See ECF No. 755 at 22.) In addition to aggressively opposing class certification,

8 Costco filed a motion to transfer venue, hired four expert witnesses to rebut Plaintiffs’

9 allegations, and filed approximately 200 declarations from current and former employees

10 purporting to disclaim any gender discrimination in Costco’s warehouses. (See id.) Costco

11 continues to deny that it has discriminated against female warehouse employees. (See id.) The

12 history of this case suggests that further litigation would continue to be prolonged and difficult.

13

Plaintiffs believe that their case is strong. However, they also recognize that it would be

14 challenging to present evidence spanning a ten-year period to a jury. (See ECF No. 755 at 22.)

15 The passage of time would undoubtedly affect the quality of percipient witness testimony on both

16 sides. And if Plaintiffs lost, the class members would get none of the programmatic or monetary

17 relief that they have sought for nearly a decade. Cf. In re Heritage Bond Litig., 2005 WL

18 1594403, at *7 (C.D. Cal. June 10, 2005) (“[W]hile Plaintiffs are confident of the strength of their

19 case, it is imprudent to presume ultimate success at trial and thereafter.”). Likewise, if Plaintiffs

20 prevailed on their disparate impact claims, but not their pattern or practice claims, their monetary

21 recovery would be limited to lost wages and interest, not compensatory and punitive damages.

22 (See ECF No. 693 at 86.) Even a total victory at trial would not guarantee compensation for the

23 class, because individual class members would still have to appear at Stage II hearings in San

24 Francisco, likely followed by numerous appeals. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.

25 2541, 2561 (2011) (discussing Stage II Teamsters hearings).

26

Under any of these scenarios, continued litigation would increase the amount of attorneys’

27 fees incurred, without necessarily improving the likelihood of a favorable resolution and

28 monetary recovery for the class members. (See ECF No. 755 at 22.) In contrast, the proposed

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1 settlement allows for immediate implementation of the programmatic relief, as well as an

2 expedited process for pursuing individual claims for monetary relief. (See id. at 22-23.) In sum,

3 the risks and potential delay of further litigation—especially in a case that has already been

4 litigated for nearly a decade—outweigh the immediate, concrete relief provided under the

5 proposed settlement agreement. See, e.g., Greko v. Diesel U.S.A., Inc., 2013 WL 1789602, at *5

6 (N.D. Cal. Apr. 26, 2013) (approving a final settlement, and noting that “even with a strong case,

7 further litigation would be time-consuming and expensive”).

8

3. Risk of maintaining class status through trial

9

The settlement is also reasonable in light of the risks associated with maintaining class

10 status through trial. Prior to settlement, Costco indicated that it was planning to file a motion for

11 decertification. (ECF No. 747 at 3; see also ECF No. 755 at 22.) This would result in a third

12 round of briefing complex class certification issues, as well as substantial delay in obtaining

13 relief. While Plaintiffs are confident that they would defeat a decertification motion, the risks of

14 engaging in further litigation counsel in favor of approving the proposed settlement agreement.

15 See Greko, 2013 WL 1789602, at *4 (“A motion for decertification would, at the very least, entail

16 significant expense, and if successful, would have a dramatic effect on the ability of the absent

17 class members to obtain any monetary recovery whatsoever.”).

18

4. Amount offered in settlement versus outcome at trial

19

The amount offered in the proposed settlement is fair and reasonable. As explained in

20 detail in Plaintiffs’ Motion for Preliminary Approval, the programmatic relief will advance the

21 goal of equal promotion opportunities for female Costco warehouse employees. (ECF No. 755 at

22 17-19.) This relief includes: (1) the use of an industrial organizational psychologist to conduct

23 job analyses, evaluate promotion processes, and develop selection criteria for AGM and GM

24 promotions; (2) a posting process for AGM promotions; (3) a registration of interest system for

25 GM promotions; (4) a merchandising training class for Senior Staff managers; (5) a promotion

26 process for AGM positions, including comprehensive records maintenance; and (6) internal

27 training and communication concerning the implemented programs. (See ECF No. 755 at 8-12;

28 see also ECF No. 775 at 1-2.)

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1

The monetary component is also substantial. The settlement provides for an $8 million

2 settlement fund, distributed through a litigated claims process. (ECF No. 755 at 12-15.) Class

3 members have the option of either submitting written claims or making claims by formal

4 arbitration. (Id.) Class members who prevail on written claims can obtain up to $150,000 for

5 AGM promotions, and up to $300,000 for GM promotions; class members who prevail in

6 arbitration can obtain up to $250,000 for AGM promotions, and up to $600,000 for GM

7 promotions. (Id. at 19.) A confidential option is available for current employees submitting

8 written claims. (Id. at 14.)

9

The $8 million fund is more than adequate when compared with a possible litigated

10 outcome. (ECF No. 775 at 5-7.) As the parties advised the Court at the preliminary approval

11 hearing, the shortfall in AGM promotions is relatively small, with Costco estimating a shortfall of

12 29.3 promotions, and Plaintiffs estimating a shortfall of 46 promotions. (Ex. 1 (2/6/2014 Hearing

13 Tr.) at 11:9-21.) Moreover, there would be no single Stage I verdict on damages if the case went

14 to trial. (ECF No. 775 at 5.) Stage II hearings would be required, with the amount of damages

15 awarded depending on various factors such as: (1) the types of damages available; (2) the

16 specific time period for which Costco is found liable; (3) whether class members could challenge

17 any promotion, or only promotions in regions where there was a shortfall; (4) whether the back

18 pay pool would be limited to the shortfall in promotions to women; and (5) whether prevailing

19 class members would share damages on a pro rata basis. (Id. at 5-7.)

20

In sum, the proposed settlement provides an avenue for obtaining significant monetary

21 relief that is faster, less expensive, and more convenient than a fully-litigated Stage II hearing. As

22 the Court recognized at the preliminary approval hearing, the fund “represents a fair reflection of

23 the risks” in this case, taking into account “the potential verdict value [discounted] by [the]

24 litigation risks,” such that the fund is “fair and adequate in that regard.” (Ex. 1 (2/6/2014 Hearing

25 Tr.) at 12:21-13:2.)

26

5. Extent of discovery completed and the stage of proceedings

27

The proposed settlement was reached after years of thorough investigation into the merits

28 of this case. Over almost a decade of litigation, the parties conducted extensive discovery that

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1 included over twenty depositions, written discovery, the production and review of hundreds of

2 thousands of documents, and significant expert discovery. (ECF No. 755 at 2-3.) This thorough

3 investigation allowed both parties to fully understand and evaluate Plaintiffs’ claims and Costco’s

4 defenses. The parties further developed their cases through extensive motion practice, including

5 five separate rounds of class certification briefing—two before the district court, two on Rule

6 23(f) appeals, and one before the Ninth Circuit Court of Appeals.

7

The proposed settlement was reached through highly contested negotiations held at arms’

8 length, with the aid of Mark Rudy, a respected mediator, after five separate mediation sessions

9 and numerous rounds of informal negotiation. At the time of settlement, the litigation was at a

10 stage where both parties had a clear view of the strengths and weaknesses of their positions,

11 which weighs strongly in favor of approving the settlement. See, e.g., Officers for Justice, 688

12 F.2d at 627 (affirming the approval of a consent decree, where the case had been “aggressively

13 litigated . . . for six years,” resulting in a large record and many pre-trial orders, assuring the court

14 that the proposed settlement “was not hastily arrived at”).

15

6. Experience and views of counsel

16

The experience and views of Counsel also support approving the proposed settlement

17 agreement. As set forth more fully in Plaintiffs’ Motion for Preliminary Approval and Motion for

18 Attorneys’ Fees and Costs, Class Counsel have significant experience in both Title VII

19 discrimination cases and class action litigation. (See ECF No. 755 at 21; ECF No. 760 at 17.).

20 They have worked on this case for almost a decade and are familiar with Plaintiffs’ claims and

21 Costco’s defenses. The fact that Counsel believe this settlement is fair, reasonable, and adequate

22 weighs in favor of final approval. See, e.g., Pierce v. Rosetta Stone, Ltd., 2013 WL 5402120, at

23 *5 (N.D. Cal. Sept. 26, 2013) (“Given the collective experience of the attorneys involved in this

24 litigation, the Court credits counsels’ view that the settlement is worthy of approval.”).

25

7. The reaction of the class members

26

Finally, the reaction of the class members weighs in favor of approving the settlement.

27 On February 26, 2014, notice of the settlement was sent to the 1,318 class members by First Class

28 U.S. Mail, using their last-known addresses. As of April 16, 2014, only seventy-seven of the

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1 class members have opted out, and no objections to the settlement have been filed. “Courts have

2 repeatedly recognized that the absence of a large number of objections to a proposed class action

3 settlement raises a strong presumption that the terms of a proposed class settlement action are

4 favorable to the class members.” Garner v. State Farm Mut. Auto. Ins. Co., 2010 WL 1687832,

5 at *14 (N.D. Cal. Apr. 22, 2010) (internal quotation marks omitted); see also, e.g., Wren v. RGIS

6 Inventory Specialists, 2011 WL 1230826, at *11 (N.D. Cal. Apr. 1, 2011) (same), supplemented,

7 2011 WL 1838562 (N.D. Cal. May 13, 2011); Chun-Hoon v. McKee Foods Corp., 716 F. Supp.

8 2d 848, 852 (N.D. Cal. 2010) (concluding that class members had an “overwhelming positive

9 reaction” to the proposed settlement where “[a] total of zero objections and sixteen opt-outs

10 (comprising 4.86% of the class)” were made from a class of 329 members).

11

C. The Proposed Cy Pres Beneficiary is Reasonable

12

The Court should also approve the parties’ designated cy pres beneficiary. Under the

13 agreement, excess settlement funds will be used by the Network of Executive Women, Consumer

14 Products/Retail to fund scholarships or otherwise assist women pursuing leadership roles in retail

15 management. (Am. Agreement § 3.5.) This organization is comprised of “the next best class of

16 beneficiaries” in this lawsuit. Lane v. Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012) (internal

17 quotation marks omitted), cert. denied, 134 S. Ct. 8 (2013). As the Ninth Circuit has explained, a

18 cy pres award should “bear[] a substantial nexus to the interests of the class members.” Id. at

19 821. This means that the award should account for “the nature of the plaintiffs’ lawsuit, the

20 objectives of the underlying statutes, and the interests of the silent class members, including their

21 geographic diversity.” Nachshin v. AOL, LLC, 663 F.3d 1034, 1036 (9th Cir. 2011); see also

22 Dennis v. Kellogg Co., 697 F.3d 858, 865 (9th Cir. 2012) (stating that a cy pres award “must not

23 benefit a group too remote from the plaintiff class” (internal quotation marks omitted)). The

24 parties’ designation of the Network of Executive Women satisfies all of these requirements. The

25 organization was founded on the belief that there are not enough female leaders in consumer

26 products and retail, and it seeks to attract and advance women in this industry through

27 programming that includes education, events, research, and leadership development programs.

28 (See ECF 775 at 13-14.) It has more than 8,000 members spread all across the United States and

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1 Canada. (See id.) Any funds awarded to the organization will be used specifically to further the

2 advancement of women in retail. (Am. Agreement § 3.5.)

3

D. The Named Plaintiffs’ Request for Service Awards is Reasonable

4

Plaintiffs’ request for service awards of $10,000 for each of the three Class

5 Representatives should also be approved. As set forth in detail in Plaintiffs’ Application for

6 Service Awards to Class Representatives, the Named Plaintiffs have risked their reputations and

7 ability to obtain future employment, devoted substantial time to the litigation, and pursued this

8 case for nearly ten years, without any guarantee of success. (ECF No. 771.) As such, they are

9 entitled to service awards to compensate them for the work done, to make up for financial and

10 reputational risks taken, and to recognize their willingness to enforce the law in this case. See

11 Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 958-59 (9th Cir. 2009); Staton v. Boeing Co., 327

12 F.3d 938, 977 (9th Cir. 2003); see also, e.g., Wren, 2011 WL 1230826, at *31-32. In addition, the

13 service awards are reasonable and appropriate because they were not conditioned in any way on

14 the Named Plaintiffs’ support for the Settlement Agreement. Each Plaintiff maintained the right

15 to separately and independently support, object to, or comment upon any settlement at any point

16 in the litigation, and none of the Named Plaintiffs had any conflicts with the class overall.

17

E. Plaintiffs’ Request for Attorneys’ Fees and Costs is Reasonable

18

Plaintiffs’ request for attorneys’ fees and costs is also reasonable. As explained in

19 Plaintiffs’ Motion for Attorneys’ Fees and Costs, Class Counsel achieved excellent results. They

20 twice obtained class certification, won virtually every significant motion that was litigated before

21 this Court, and achieved a proposed settlement with substantial programmatic and monetary

22 relief. (See ECF No. 760.) In a joint stipulation filed prior to the hearing on preliminary

23 approval, Costco agreed not to oppose Plaintiffs’ motion and to pay an award equal to or lower

24 than the following: $3,950,000 in attorneys’ fees for work performed through November 30,

25 2013, $633,959.64 in expert fees and costs, and $300,000 for future work monitoring and

26 administering the settlement. (ECF No. 770.) These amounts are reasonable in light of the

27 duration of the litigation, the complexity of the issues, and the excellent results that Class Counsel

28 achieved, including substantial injunctive relief. As of the date of this brief, no class member has

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1 objected to the attorneys’ fee application or Costco’s stipulation.

2

CONCLUSION

3

For all of the reasons explained above, Plaintiffs respectfully request that their motion for

4 final settlement approval be granted.

5

6 Dated: April 17, 2014 7 8 9 10

Respectfully submitted,
IMPACT FUND
By: s/ Jocelyn D. Larkin Jocelyn D. Larkin Attorneys for Plaintiffs and Certified Classes

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 THE IMPACT FUND
Jocelyn D. Larkin (SBN: 110817)
2 Robert Schug (SBN: 249640)
Meredith Johnson (SBN: 291018)
3 125 University Avenue, Suite 102
Berkeley, CA 94710
4 Telephone: (510) 845-3473
Facsimile: (510) 845-3654
5 jlarkin@impactfund.org

DAVIS, COWELL & BOWE, LLP Steve Stemerman (SBN: 067690) Elizabeth A. Lawrence (SBN: 111781) 595 Market Street, #1400 San Francisco, CA 94105 Telephone: (415) 597-7200 Facsimile: (415) 597-7201 eal@dcbsf.com

6 LEWIS, FEINBERG, LEE,
RENAKER & JACKSON, P.C.
7 Bill Lann Lee (SBN: 108452)
Lindsay Nako (SBN: 239090)
8 476 9th Street
Oakland, CA 94607
9 Telephone: (510) 839-6824
Facsimile: (510) 839-7839
10 blee@lewisfeinberg.com

ALTSHULER BERZON LLP James M. Finberg (SBN: 114850) 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 jfinberg@altshulerberzon.com

11 LIEFF, CABRASER, HEIMANN
& BERNSTEIN, LLP
12 Kelly Dermody (SBN: 171716)
Daniel Hutchinson (SBN: 239458)
13 Embarcadero Center West
275 Battery Street, 30th Floor
14 San Francisco, CA 94111-3339
Telephone: (415) 956-1000
15 Facsimile: (415) 956-1008
kdermody@lchb.com
16

17 Attorneys for Plaintiffs and Certified Classes

18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

20 SHIRLEY "RAE" ELLIS, et al.,

21

Plaintiffs,

22

v.

23 COSTCO WHOLESALE CORPORATION

24

Defendant.

25

26

27

) Case No. C04-3341 EMC

)

) Assigned to: Hon. Edward M. Chen

)

) [PROPOSED] ORDER GRANTING

) MOTION FOR FINAL APPROVAL OF

) CLASS ACTION SETTLEMENT

)

) Hearing Date: May 22, 2014

) Hearing Time: 1:30 PM

) Courtroom:

5 (17th Floor)

)

)

)

)

28
[PROPOSED] ORDER GRANTING MOTION FOR FINAL SETTLEMENT APPROVAL Case No. C04-3341 EMC

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1

A proposed settlement in this case was preliminarily approved by this Court on February

2 12, 2014. The operative Amended Settlement Agreement is attached as Exhibit 1 to the Court’s

3 Preliminary Approval Order. The Court conducted a final fairness hearing on May 22, 2014 as

4 required by Rule 23(e) of the Federal Rules of Civil Procedure. Before the Court was Plaintiffs’

5 unopposed Motion for Final Approval of Class Action Settlement, Plaintiffs’ unopposed Motion

6 for Attorneys’ Fees and Costs, and Plaintiffs’ unopposed Application for Service Awards to

7 Class Representatives.

8

The Court has reviewed the materials submitted by the Parties and heard arguments

9 presented by counsel at the hearing. For the reasons cited below, the Court grants final approval

10 of the Settlement. The Court finds that the Settlement is fair, adequate, and reasonable to the

11 Class. The Court also grants Plaintiffs’ Motion for Attorneys’ Fees and Costs and Application

12 for Service Awards to Class Representatives. Accordingly, the Court orders as follows:

13

FINAL SETTLEMENT APPROVAL

14

1. Except as otherwise stated, for purposes of this Order, the Court incorporates by

15 reference the defined terms in the Settlement Agreement.

16

2. The Court has jurisdiction over the parties and the subject matter of this litigation.

17

3. The Court finds that this action satisfies the requirements for the settlement of a

18 class action under Federal Rule of Civil Procedure 23, and finds that the Classes have at all times

19 been adequately represented by the Named Plaintiffs and Class Counsel.

20

4. The Class Notice approved by the Court was provided by First Class mail to the

21 last-known address of each of the individuals identified as Class Members. In addition, follow-

22 up efforts were made to send the Notice to those individuals whose original Notices were

23 returned as undeliverable. The Notice adequately described all of the relevant and necessary

24 parts of the proposed Settlement Agreement, the request for service awards to the Class

25 Representatives, and Class Counsel’s request for an award of attorneys’ fees and costs. The

26 Court finds that the Notice given to the Class fully complied with Rule 23, was the best notice

27 practicable, satisfied due process, and provides the Court with jurisdiction over the Class

28 Members.

1

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1

5. The Court has assessed the proposed Settlement in light of: (1) the strength of

2 Plaintiffs’ case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the

3 risk of maintaining class action status throughout the trial; (4) the amount offered in the

4 settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the

5 experience and views of counsel; (7) the presence of a governmental participant; and (8) the

6 reaction of the class members to the proposed settlement. See Staton v. Boeing Co., 327 F.3d

7 938, 959 (9th Cir. 2003); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).

8

6. The Court finds that the terms of the Agreement are fair, reasonable, and adequate

9 in all respects. The Court specifically finds that the programmatic and monetary relief of the

10 Settlement are reasonable in light of the types and amounts of relief offered, the strength of

11 Plaintiffs’ and the Class Members’ claims, and the risk, expense, complexity, and duration of

12 further litigation. The Court confirms its previous finding that the Settlement Agreement is the

13 result of arms-length negotiations between experienced counsel representing the interests of

14 Plaintiffs and Defendant, after thorough factual and legal investigation.

15

7. No Class Members have objected to any aspect of the Settlement, the request for

16 Class Representative service awards, or the request for attorneys’ fees and costs. The reaction of

17 the Class also supports the conclusion that the Settlement is fair, reasonable, and adequate.

18

8. The individuals who timely opted out of the Settlement are identified in Exhibit A

19 to this Order. These individuals are excluded from the Settlement and are not bound by its

20 terms.

21

9. The Court approves the cy pres recipient identified in the Settlement, the Network

22 of Executive Women, Consumer Products/Retail. The Court finds that there is a “driving nexus

23 between the plaintiff class and the cy pres beneficiaries.” See Dennis v. Kellogg Co., 697 F.3d

24 858, 865 (9th Cir. 2012) (internal quotation marks omitted).

25

10. The Settlement is HEREBY APPROVED in its entirety.

26

27

28

2

[PROPOSED] ORDER GRANTING MOTION FOR

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1

CLASS REPRESENTATIVE SERVICE AWARDS

2

11. On January 30, 2014, Plaintiffs filed an Application for Service Awards to Class

3 Representatives. Plaintiffs request a service award of $10,000 for each Class Representative,

4 Shirley “Rae” Ellis, Leah Horstman, and Elaine Sasaki.

5

12. In evaluating the reasonableness of a service award, courts consider factors such

6 as: (1) the actions the plaintiff has taken to protect the interests of the class; (2) the degree to

7 which the class has benefitted from those actions; (3) the duration of the litigation and the

8 amount of time and effort the plaintiff expended in pursing it; and (4) the risks to the plaintiff in

9 commencing the litigation, including reasonable fears of workplace retaliation, personal

10 difficulties, and financial risks. See Staton, 327 F.3d at 977; see also, e.g., Wren v. RGIS

11 Inventory Specialists, 2011 WL 1230826, at *32 (N.D. Cal. Apr. 1, 2011), supplemented, 2011

12 WL 1838562 (N.D. Cal. May 13, 2011).

13

13. The Court finds that the Named Plaintiffs’ requests for service payments are

14 reasonable in light of their time and effort pursuing this litigation, the substantial benefit to the

15 Class from the Settlement, and the risks that they have faced in representing the Class.

16

14. Accordingly, IT IS HEREBY ORDERED that Shirley “Rae” Ellis, Leah

17 Horstman, and Elaine Sasaki are awarded service payments of $10,000 each, to be paid

18 according to the terms of the Settlement Agreement.

19

ATTORNEYS’ FEES AND COSTS

20

15. On December 17, 2014, Class Counsel filed a Motion for Attorneys’ Fees and

21 Costs. Counsel requested an award of: (1) reasonable attorneys’ fees for work on the case-in-

22 chief and settlement through November 30, 2013, in the amount of $4,304,564; (2) costs in the

23 amount of $633,959.64; (3) fees and costs for monitoring and administering the settlement in the

24 amount of $300,000; and (4) fees for work done on the fee motion.

25

16. On January 30, 2014, the Parties filed a stipulation regarding Plaintiffs’ Motion

26 for Attorneys’ Fees and Costs. Pursuant to the stipulation, Costco agreed not to oppose the

27 Motion for Attorneys’ Fees and Costs, and agreed to pay an award equal to or lower than the

28 following: $3,950,000 in attorneys’ fees for work performed through November 30, 2013,

3

[PROPOSED] ORDER GRANTING MOTION FOR

FINAL SETTLEMENT APPROVAL

Case No. C04-3341 EMC

Case3:04-cv-03341-EMC Document785-1 Filed04/17/14 Page5 of 8

1 $633,959.64 in expert fees and costs, and $300,000 for future work monitoring and

2 administering the settlement.

3

17. Plaintiffs’ motion for attorneys’ fees and costs is granted.

4

18. Plaintiffs are a “prevailing party” for purposes of awarding attorneys’ fees

5 pursuant to 42 U.S.C. § 2000e-5(k). See Prison Legal News v. Schwarzenegger, 608 F.3d 446,

6 451 (9th Cir. 2010).

7

19. The lodestar method is the appropriate means of calculating attorneys’ fees in this

8 case, where a major part of the relief sought and obtained was injunctive. See In re Bluetooth

9 Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011).

10

20. The number of hours that Class Counsel spent on this case was reasonable in light

11 of the length and complexity of the litigation and the excellent result obtained. Class Counsel

12 have reasonably accounted for and eliminated unnecessary or duplicative hours.

13

21. The rates used by Class Counsel are reasonable, and are in line with attorneys of

14 comparable skill, experience, and reputation who practice in the Northern District of California.

15 This conclusion is supported by the Declarations of Richard Pearl, Jocelyn D. Larkin, Daniel M.

16 Hutchinson, Bill Lann Lee, Elizabeth A. Lawrence, and James M. Finberg.

17

22. The use of current rates is appropriate here because of the very significant delay

18 in payment. Missouri v. Jenkins by Agyei, 491 U.S. 274, 284 (1989).

19

23. The attorneys’ fee requested, which is substantially less than the full lodestar, is

20 reasonable. No further reduction of the lodestar is necessary.

21

24. No cross-check against the percentage of recovery is required, since there is no

22 common fund in this case. However, even if the settlement were viewed as creating a

23 constructive or putative common fund, the lodestar is still reasonable, in light of the complexity

24 and duration of the litigation, Class Counsel’s skill and experience, and the important injunctive

25 and monetary relief that Class Counsel obtained in this case. See, e.g., Wren, 2011 WL 1230826,

26 at *29.

27

28

4

[PROPOSED] ORDER GRANTING MOTION FOR

FINAL SETTLEMENT APPROVAL

Case No. C04-3341 EMC

Case3:04-cv-03341-EMC Document785-1 Filed04/17/14 Page6 of 8

1

25. The costs and expenses incurred by Class Counsel are reasonable and are the type

2 that would normally be charged by an attorney to a fee-paying client. See Grove v. Wells Fargo

3 Fin. Cal., Inc., 606 F.3d 577, 580 (9th Cir. 2010).

4

26. Class Counsel are entitled to an award for the hours Class Counsel will spend

5 monitoring Costco’s compliance with the Settlement and overseeing the claims process. See

6 Balla v. Idaho, 677 F.3d 910, 916-18 (9th Cir. 2012); Hanlon, 150 F.3d at 1029. This work will

7 include developing programmatic relief, reviewing draft proposals, resolving any disputes, and

8 reviewing monitoring and compliance processes. For the latter, Class Counsel’s work will

9 include selecting arbitrators, writing context briefs, developing and disseminating materials to

10 explain the claims procedure, and consulting with class members about whether to file claims.

11

27. The total award of $3,950,000 for attorneys’ fees, $633,959.64 for costs, and

12 $300,000 for future work is fair and reasonable.

13

28. Accordingly, IT IS HEREBY ORDERED that Class Counsel are awarded:

14 (1) attorneys’ fees in the amount of $3,950,000; (2) costs in the amount $633,959.64; and (3)

15 fees and costs in the amount of $300,000 for monitoring and administering the settlement.

16 Defendant is ordered to pay these amounts as agreed in the Settlement Agreement.

17

FINAL JUDGMENT

18

29. The Court hereby enters Judgment approving the terms of the Settlement as set

19 forth herein. This document shall constitute a final judgment for purposes of Rule 58 of the

20 Federal Rules of Civil Procedure.

21

30. The class action claims are DISMISSED WITH PREJUDICE, subject to the

22 Court’s retention of jurisdiction to enforce the Settlement Agreement under Section 14 of the

23 Agreement. The claims of the Named Plaintiffs are not dismissed. The Named Plaintiffs will

24 inform the Court on or before the Claim Form Submission Deadline of their decisions regarding

25 whether to proceed in this Court or in the monetary claims process. The Named Plaintiffs will

26 use best efforts to inform Costco by May 5, 2014 whether they intend to proceed in this Court.

27

31. Each party is to bear his, her, or its own costs, except as set provided above.

28

5

[PROPOSED] ORDER GRANTING MOTION FOR

FINAL SETTLEMENT APPROVAL

Case No. C04-3341 EMC

Case3:04-cv-03341-EMC Document785-1 Filed04/17/14 Page7 of 8

1

32. This Court retains exclusive jurisdiction over this matter for purposes of enforcing

2 the Settlement Agreement, including the disbursement of the Settlement Fund.

3

4

5
IT IS SO ORDERED.
6

7 Dated: 8 9

EDWARD M. CHEN United States District Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

[PROPOSED] ORDER GRANTING MOTION FOR

FINAL SETTLEMENT APPROVAL

Case No. C04-3341 EMC

Case3:04-cv-03341-EMC Document785-1 Filed04/17/14 Page8 of 8
Exhibit 1
(To be provided to the Court once the Opt-Out and Objection Periods have concluded.)

 
 Case3:04-cv-03341-EMC Document791 Filed05/27/14 Page1 of 8

1 THE IMPACT FUND
Jocelyn D. Larkin (SBN: 110817)
2 Robert Schug (SBN: 249640)
Meredith Johnson (SBN: 291018)
3 125 University Avenue, Suite 102
Berkeley, CA 94710
4 Telephone: (510) 845-3473
Facsimile: (510) 845-3654
5 jlarkin@impactfund.org

DAVIS, COWELL & BOWE, LLP Steve Stemerman (SBN: 067690) Elizabeth A. Lawrence (SBN: 111781) 595 Market Street, #1400 San Francisco, CA 94105 Telephone: (415) 597-7200 Facsimile: (415) 597-7201 eal@dcbsf.com

6 LEWIS, FEINBERG, LEE,
RENAKER & JACKSON, P.C.
7 Bill Lann Lee (SBN: 108452)
Lindsay Nako (SBN: 239090)
8 476 9th Street
Oakland, CA 94607
9 Telephone: (510) 839-6824
Facsimile: (510) 839-7839
10 blee@lewisfeinberg.com

ALTSHULER BERZON LLP James M. Finberg (SBN: 114850) 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 jfinberg@altshulerberzon.com

11 LIEFF, CABRASER, HEIMANN
& BERNSTEIN, LLP
12 Kelly Dermody (SBN: 171716)
Daniel Hutchinson (SBN: 239458)
13 Embarcadero Center West
275 Battery Street, 30th Floor
14 San Francisco, CA 94111-3339
Telephone: (415) 956-1000
15 Facsimile: (415) 956-1008
kdermody@lchb.com
16

17 Attorneys for Plaintiffs and Certified Classes

18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

20 SHIRLEY "RAE" ELLIS, et al.,

21

Plaintiffs,

22

v.

23 COSTCO WHOLESALE CORPORATION

24

Defendant.

25

26

27

) Case No. C04-3341 EMC

)

) Assigned to: Hon. Edward M. Chen

)

) [PROPOSED] ORDER GRANTING

) MOTION FOR FINAL APPROVAL OF

) CLASS ACTION SETTLEMENT

)

) Hearing Date: May 22, 2014

) Hearing Time: 1:30 PM

) Courtroom:

5 (17th Floor)

)

)

)

)

28
[PROPOSED] ORDER GRANTING MOTION FOR FINAL SETTLEMENT APPROVAL Case No. C04-3341 EMC

Case3:04-cv-03341-EMC Document791 Filed05/27/14 Page2 of 8

1

A proposed settlement in this case was preliminarily approved by this Court on February

2 12, 2014. The operative Amended Settlement Agreement is attached as Exhibit 1 to the Court’s

3 Preliminary Approval Order. The Court conducted a final fairness hearing on May 22, 2014 as

4 required by Rule 23(e) of the Federal Rules of Civil Procedure. Before the Court was Plaintiffs’

5 unopposed Motion for Final Approval of Class Action Settlement, Plaintiffs’ unopposed Motion

6 for Attorneys’ Fees and Costs, and Plaintiffs’ unopposed Application for Service Awards to

7 Class Representatives.

8

The Court has reviewed the materials submitted by the Parties and heard arguments

9 presented by counsel at the hearing. For the reasons cited below, the Court grants final approval

10 of the Settlement. The Court finds that the Settlement is fair, adequate, and reasonable to the

11 Class. The Court also grants Plaintiffs’ Motion for Attorneys’ Fees and Costs and Application

12 for Service Awards to Class Representatives. Accordingly, the Court orders as follows:

13

FINAL SETTLEMENT APPROVAL

14

1. Except as otherwise stated, for purposes of this Order, the Court incorporates by

15 reference the defined terms in the Settlement Agreement.

16

2. The Court has jurisdiction over the parties and the subject matter of this litigation.

17

3. The Court finds that this action satisfies the requirements for the settlement of a

18 class action under Federal Rule of Civil Procedure 23, and finds that the Classes have at all times

19 been adequately represented by the Named Plaintiffs and Class Counsel.

20

4. The Class Notice approved by the Court was provided by First Class mail to the

21 last-known address of each of the individuals identified as Class Members. In addition, follow-

22 up efforts were made to send the Notice to those individuals whose original Notices were

23 returned as undeliverable. The Notice adequately described all of the relevant and necessary

24 parts of the proposed Settlement Agreement, the request for service awards to the Class

25 Representatives, and Class Counsel’s request for an award of attorneys’ fees and costs. The

26 Court finds that the Notice given to the Class fully complied with Rule 23, was the best notice

27 practicable, satisfied due process, and provides the Court with jurisdiction over the Class

28 Members.

1

[PROPOSED] ORDER GRANTING MOTION FOR

FINAL SETTLEMENT APPROVAL

Case No. C04-3341 EMC

Case3:04-cv-03341-EMC Document791 Filed05/27/14 Page3 of 8

1

5. The Court has assessed the proposed Settlement in light of: (1) the strength of

2 Plaintiffs’ case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the

3 risk of maintaining class action status throughout the trial; (4) the amount offered in the

4 settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the

5 experience and views of counsel; (7) the presence of a governmental participant; and (8) the

6 reaction of the class members to the proposed settlement. See Staton v. Boeing Co., 327 F.3d

7 938, 959 (9th Cir. 2003); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).

8

6. The Court finds that the terms of the Agreement are fair, reasonable, and adequate

9 in all respects. The Court specifically finds that the programmatic and monetary relief of the

10 Settlement are reasonable in light of the types and amounts of relief offered, the strength of

11 Plaintiffs’ and the Class Members’ claims, and the risk, expense, complexity, and duration of

12 further litigation. The Court confirms its previous finding that the Settlement Agreement is the

13 result of arms-length negotiations between experienced counsel representing the interests of

14 Plaintiffs and Defendant, after thorough factual and legal investigation.

15

7. No Class Members have objected to any aspect of the Settlement, the request for

16 Class Representative service awards, or the request for attorneys’ fees and costs. The reaction of

17 the Class also supports the conclusion that the Settlement is fair, reasonable, and adequate.

18

8. The individuals who timely opted out of the Settlement are identified in Exhibit A

19 to this Order. These individuals are excluded from the Settlement and are not bound by its

20 terms.

21

9. The Court approves the cy pres recipient identified in the Settlement, the Network

22 of Executive Women, Consumer Products/Retail. The Court finds that there is a “driving nexus

23 between the plaintiff class and the cy pres beneficiaries.” See Dennis v. Kellogg Co., 697 F.3d

24 858, 865 (9th Cir. 2012) (internal quotation marks omitted).

25

10. The Settlement is HEREBY APPROVED in its entirety.

26

27

28

2

[PROPOSED] ORDER GRANTING MOTION FOR

FINAL SETTLEMENT APPROVAL

Case No. C04-3341 EMC

Case3:04-cv-03341-EMC Document791 Filed05/27/14 Page4 of 8

1

CLASS REPRESENTATIVE SERVICE AWARDS

2

11. On January 30, 2014, Plaintiffs filed an Application for Service Awards to Class

3 Representatives. Plaintiffs request a service award of $10,000 for each Class Representative,

4 Shirley “Rae” Ellis, Leah Horstman, and Elaine Sasaki.

5

12. In evaluating the reasonableness of a service award, courts consider factors such

6 as: (1) the actions the plaintiff has taken to protect the interests of the class; (2) the degree to

7 which the class has benefitted from those actions; (3) the duration of the litigation and the

8 amount of time and effort the plaintiff expended in pursing it; and (4) the risks to the plaintiff in

9 commencing the litigation, including reasonable fears of workplace retaliation, personal

10 difficulties, and financial risks. See Staton, 327 F.3d at 977; see also, e.g., Wren v. RGIS

11 Inventory Specialists, 2011 WL 1230826, at *32 (N.D. Cal. Apr. 1, 2011), supplemented, 2011

12 WL 1838562 (N.D. Cal. May 13, 2011).

13

13. The Court finds that the Named Plaintiffs’ requests for service payments are

14 reasonable in light of their time and effort pursuing this litigation, the substantial benefit to the

15 Class from the Settlement, and the risks that they have faced in representing the Class.

16

14. Accordingly, IT IS HEREBY ORDERED that Shirley “Rae” Ellis, Leah

17 Horstman, and Elaine Sasaki are awarded service payments of $10,000 each, to be paid

18 according to the terms of the Settlement Agreement.

19

ATTORNEYS’ FEES AND COSTS

20

15. On December 17, 2014, Class Counsel filed a Motion for Attorneys’ Fees and

21 Costs. Counsel requested an award of: (1) reasonable attorneys’ fees for work on the case-in-

22 chief and settlement through November 30, 2013, in the amount of $4,304,564; (2) costs in the

23 amount of $633,959.64; (3) fees and costs for monitoring and administering the settlement in the

24 amount of $300,000; and (4) fees for work done on the fee motion.

25

16. On January 30, 2014, the Parties filed a stipulation regarding Plaintiffs’ Motion

26 for Attorneys’ Fees and Costs. Pursuant to the stipulation, Costco agreed not to oppose the

27 Motion for Attorneys’ Fees and Costs, and agreed to pay an award equal to or lower than the

28 following: $3,950,000 in attorneys’ fees for work performed through November 30, 2013,

3

[PROPOSED] ORDER GRANTING MOTION FOR

FINAL SETTLEMENT APPROVAL

Case No. C04-3341 EMC

Case3:04-cv-03341-EMC Document791 Filed05/27/14 Page5 of 8

1 $633,959.64 in expert fees and costs, and $300,000 for future work monitoring and

2 administering the settlement.

3

17. Plaintiffs’ motion for attorneys’ fees and costs is granted.

4

18. Plaintiffs are a “prevailing party” for purposes of awarding attorneys’ fees

5 pursuant to 42 U.S.C. § 2000e-5(k). See Prison Legal News v. Schwarzenegger, 608 F.3d 446,

6 451 (9th Cir. 2010).

7

19. The lodestar method is the appropriate means of calculating attorneys’ fees in this

8 case, where a major part of the relief sought and obtained was injunctive. See In re Bluetooth

9 Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011).

10

20. The number of hours that Class Counsel spent on this case was reasonable in light

11 of the length and complexity of the litigation and the excellent result obtained. Class Counsel

12 have reasonably accounted for and eliminated unnecessary or duplicative hours.

13

21. The rates used by Class Counsel are reasonable, and are in line with attorneys of

14 comparable skill, experience, and reputation who practice in the Northern District of California.

15 This conclusion is supported by the Declarations of Richard Pearl, Jocelyn D. Larkin, Daniel M.

16 Hutchinson, Bill Lann Lee, Elizabeth A. Lawrence, and James M. Finberg.

17

22. The use of current rates is appropriate here because of the very significant delay

18 in payment. Missouri v. Jenkins by Agyei, 491 U.S. 274, 284 (1989).

19

23. The attorneys’ fee requested, which is substantially less than the full lodestar, is

20 reasonable. No further reduction of the lodestar is necessary.

21

24. No cross-check against the percentage of recovery is required, since there is no

22 common fund in this case. However, even if the settlement were viewed as creating a

23 constructive or putative common fund, the lodestar is still reasonable, in light of the complexity

24 and duration of the litigation, Class Counsel’s skill and experience, and the important injunctive

25 and monetary relief that Class Counsel obtained in this case. See, e.g., Wren, 2011 WL 1230826,

26 at *29.

27

28

4

[PROPOSED] ORDER GRANTING MOTION FOR

FINAL SETTLEMENT APPROVAL

Case No. C04-3341 EMC

Case3:04-cv-03341-EMC Document791 Filed05/27/14 Page6 of 8

1

25. The costs and expenses incurred by Class Counsel are reasonable and are the type

2 that would normally be charged by an attorney to a fee-paying client. See Grove v. Wells Fargo

3 Fin. Cal., Inc., 606 F.3d 577, 580 (9th Cir. 2010).

4

26. Class Counsel are entitled to an award for the hours Class Counsel will spend

5 monitoring Costco’s compliance with the Settlement and overseeing the claims process. See

6 Balla v. Idaho, 677 F.3d 910, 916-18 (9th Cir. 2012); Hanlon, 150 F.3d at 1029. This work will

7 include developing programmatic relief, reviewing draft proposals, resolving any disputes, and

8 reviewing monitoring and compliance processes. For the latter, Class Counsel’s work will

9 include selecting arbitrators, writing context briefs, developing and disseminating materials to

10 explain the claims procedure, and consulting with class members about whether to file claims.

11

27. The total award of $3,950,000 for attorneys’ fees, $633,959.64 for costs, and

12 $300,000 for future work is fair and reasonable.

13

28. Accordingly, IT IS HEREBY ORDERED that Class Counsel are awarded:

14 (1) attorneys’ fees in the amount of $3,950,000; (2) costs in the amount $633,959.64; and (3)

15 fees and costs in the amount of $300,000 for monitoring and administering the settlement.

16 Defendant is ordered to pay these amounts as agreed in the Settlement Agreement.

17

FINAL JUDGMENT

18

29. The Court hereby enters Judgment approving the terms of the Settlement as set

19 forth herein. This document shall constitute a final judgment for purposes of Rule 58 of the

20 Federal Rules of Civil Procedure.

21

30. The class action claims are DISMISSED WITH PREJUDICE, subject to the

22 Court’s retention of jurisdiction to enforce the Settlement Agreement under Section 14 of the

23 Agreement. The claims of the Named Plaintiffs are not dismissed. The Named Plaintiffs will

24 inform the Court on or before the Claim Form Submission Deadline of their decisions regarding

25 whether to proceed in this Court or in the monetary claims process. The Named Plaintiffs will

26 use best efforts to inform Costco by May 5, 2014 whether they intend to proceed in this Court.

27

31. Each party is to bear his, her, or its own costs, except as set provided above.

28

5

[PROPOSED] ORDER GRANTING MOTION FOR

FINAL SETTLEMENT APPROVAL

Case No. C04-3341 EMC

Case3:04-cv-03341-EMC Document791 Filed05/27/14 Page7 of 8

1

32. This Court retains exclusive jurisdiction over this matter for purposes of enforcing

2 the Settlement Agreement, including the disbursement of the Settlement Fund.

3

TATES DISTRICT C

4

UNITED S ALIFORNIA

OURT NORTH

5
IT IS SO ORDERED.
6

APPROVED

7 Dated: 8 9 10

5/27/14

EUDniWtedAJuSRdtgDaeteMEsd.DwCaisHrtdrEiMcNt .JCudhgene
ERN DISTRICT OF C

11

12

13

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6

[PROPOSED] ORDER GRANTING MOTION FOR

FINAL SETTLEMENT APPROVAL

Case No. C04-3341 EMC

Case3:04-cv-03341-EMC Document791 Filed05/27/14 Page8 of 8
Exhibit 1
(To be provided to the Court once the Opt-Out and Objection Periods have concluded.)
(attached)

Case3:04-cv-03341-EMC Document791-1 Filed05/27/14 Page1 of 3
Exhibit A

Case3:04-cv-03341-EMC Document791-1 Filed05/27/14 Page2 of 3

Ellis v. Costco Wholesale Corp., No. C04-3341 EMC (N.D. Cal.) Settlement Opt-Outs

Jeannine Ahearn Heather Anderson
Kamela August Heather Baker Lynda Bejarano Debbie Berg Kathleen Biberaj Debbie Bozilov Kerri Brewer Kimberly Brown Jessica Bunnell Debbie Burrell Christy Bushey Jamie Caldwell Nedenia Cancel Janice Carter Helen Castillo Amy Chancellor Laura Churillo Cynthia Conner-Sovey Kerry Dimmitt Sheli Duppman Maria Encarnacion Laurie Evans Meredith Fox Anita Fulsom Kathy Fuson Jami Gallaway Maria Garibay Darnell Glasson
Meg Glime Patricia Goodman
Linda Greek Carol Green Alice T. Gross Laura Gumina April Hall Joni Hammer

Linda Hammer Stephanie Hernandez
Gail Hibbs Sonia Hinds Nalani Hunt Jodi Jaques Jennifer Kaikko Alexis Leonhardt Dawn Loucks Amanda Luedde Joyce Malik Melissa Mangini Kirsten Mayer Melissa McCurdy Ellen McDowell Shauney McMillan Theresa Mills Traci Morgan Nicole Moritz Melinda Moser Jessica Neri Sylvie Ocafrain Stacey Perea Jeri Phillips Margret Ramirez Michelle Riggott Donna Rogers Rosina Rosamond LaVonCherise Schaffner Anita Schwartz Rolene Shimaoka-Lopez Vicki Sneed Elizabeth Soares Karen Sokol Narquita Steanhouse Elizabeth Stowell Kellie Sullivan Valerie Swangler

Case3:04-cv-03341-EMC Document791-1 Filed05/27/14 Page3 of 3
Lonnie Tapp Carmen Vasquez Deann Vickers Desiree Viverito
Janine Walsh Jennifer Welker Shyla Westbrook
Terry Wey Donna Wilkinson Margaret Winslow
Taryn Witt Debra Wolford Josanne Wong Koula Wynn Monica Zavala

 
 657 F.3d 970 United States Court of Appeals,
Ninth Circuit.
Shirley “Rae” ELLIS; Leah Horstman; Elaine Sasaki, on behalf of themselves and all others
similarly situated, Plaintiffs–Appellees, v.
COSTCO WHOLESALE CORPORATION, Defendant–Appellant.
No. 07–15838. |
Argued on April 14, 2008. |
Resubmitted on Sept. 9, 2011. |
Filed Sept. 16, 2011.
Synopsis Background: Current and former employees brought putative class action under Title VII and California’s Fair Employment and Housing Act (FEHA), alleging gender discrimination in national discount retailer’s promotion and management practices. The District Court, 372 F.Supp.2d 530, denied employer’s motion to transfer action. Employees moved for class certification. The United States District Court for the Northern District of California, Marilyn H. Patel, J., 240 F.R.D. 627, granted motion. Employer appealed.
Holdings: The Court of Appeals, N.R. Smith, Circuit Judge, held that:
[1] current employee had Article III standing to bring suit for injunctive relief;
[2] remand was required to allow district court to conduct the required “rigorous analysis” to determine whether there were common questions of law or fact among the class members’ claims;
[3] district court applied impermissible legal criteria in determining that employees met typicality requirement for certification;
[4] current employee was adequate class representative; and

[5] district court abused its discretion in granting class certification on grounds that action of party opposing class warranted final injunctive relief or corresponding declaratory relief.
Affirmed in part, vacated in part, and remanded.
West Headnotes (26)
[1] Federal Courts Persons Entitled to Seek Review or Assert
Arguments;  Parties;  Standing Standing is a threshold matter central to Court of Appeals’ subject matter jurisdiction.
1 Cases that cite this headnote
[2] Federal Courts Standing
Federal Courts Standing
Court of Appeals reviews the district court’s factual findings as to standing under the clearly erroneous standard and reviews the district court’s determination of standing de novo.
Cases that cite this headnote
[3] Federal Civil Procedure Representation of class;  typicality;  standing
in general In a class action, the plaintiff class bears the burden of showing that Article III standing exists. U.S.C.A. Const. Art. 3, § 2, cl. 1.
27 Cases that cite this headnote
1

[4] Federal Civil Procedure In general;  injury or interest
Federal Civil Procedure Causation;  redressability
Standing requires that (1) the plaintiff suffered an injury in fact, i.e., one that is sufficiently concrete and particularized and actual or imminent, not conjectural or hypothetical, (2) the injury is fairly traceable to the challenged conduct, and (3) the injury is likely to be redressed by a favorable decision.
15 Cases that cite this headnote
[5] Federal Civil Procedure Representation of class;  typicality;  standing
in general
Standing exists if at least one named plaintiff in a class action meets the requirements.
90 Cases that cite this headnote
[6] Federal Civil Procedure In general;  injury or interest
Federal Courts Injury, harm, causation, and redress
In order to satisfy the Lujan requirements for Article III standing, plaintiff must demonstrate that he has suffered or is threatened with a concrete and particularized legal harm, coupled with a sufficient likelihood that he will again be wronged in a similar way; past wrongs do not in themselves amount to a real and immediate threat of injury necessary to make out a case or controversy but are evidence bearing on whether there is a real and immediate threat of repeated injury. U.S.C.A. Const. Art. 3, § 2, cl. 1.
14 Cases that cite this headnote

[7] Civil Rights Persons Protected and Entitled to Sue
Federal Civil Procedure Sex discrimination actions
Female employee who had been denied promotion to position of general manager (GM) for national discount retailer had Article III standing, as a class representative, to bring action against employer alleging discrimination based on gender; employer’s failure to promote employee to GM was a “concrete and particularized” harm because the injury affected employee in a personal and individual way, the “crux” of the lawsuit was that such harm was directly traceable to employer’s promotion practices and general corporate culture, employee could show that there was a significant likelihood that she would be wronged again in a similar way, and, if employer’s allegedly discriminatory policies were enjoined, employee’s claimed threat of being passed over for promotion due to her gender was likely to be redressed. U.S.C.A. Const. Art. 3, § 2, cl. 1.
5 Cases that cite this headnote
[8] Federal Courts Class actions
Court of Appeals reviews the district court’s decision regarding class certification for abuse of discretion. Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A.
17 Cases that cite this headnote
[9] Federal Civil Procedure Discretion of court
District court abuses its discretion in certifying a class action if its certification order is premised on impermissible legal criteria. Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A.
Cases that cite this headnote
2

[10] Federal Civil Procedure In general;  certification in general
District courts must engage in a “rigorous analysis” of each factor of the class certification rule when determining whether plaintiffs seeking class certification have met the requirements of the rule. Fed.Rules Civ.Proc.Rule 23(a), 28 U.S.C.A.
206 Cases that cite this headnote
[11] Federal Courts Need for further evidence, findings, or
conclusions
Remand was required to allow district court to conduct the required “rigorous analysis” to determine whether there were common questions of law or fact among the class members’ claims in suit alleging gender discrimination in national discount retailer’s promotion and management practices, as required to establish commonality requirement for class certification; district court should not have relied on the admissibility of class members’ evidence to reach its conclusion on commonality. Fed.Rules Civ.Proc.Rule 23(a)(2), 28 U.S.C.A.
209 Cases that cite this headnote
[12] Evidence Necessity and sufficiency
Under Daubert, the trial court must act as a “gatekeeper” to exclude junk science that does not meet evidence rule’s reliability standards by making a preliminary determination that the expert’s testimony is reliable. Fed.Rules Evid.Rule 702, 28 U.S.C.A.
80 Cases that cite this headnote

[13] Evidence Matters involving scientific or other special
knowledge in general Evidence
Necessity and sufficiency
Daubert does not require a court to admit or to exclude evidence based on its persuasiveness; rather it requires a court to admit or exclude evidence based on its scientific reliability and relevance.
25 Cases that cite this headnote
[14] Evidence Necessity and sufficiency
An expert’s inference or assertion must be derived by the scientific method to be admissible.
4 Cases that cite this headnote
[15] Evidence Necessity and sufficiency
A trial court has broad latitude not only in determining whether an expert’s testimony is reliable, but also in deciding how to determine the testimony’s reliability.
48 Cases that cite this headnote
[16] Federal Civil Procedure Representation of class;  typicality;  standing
in general
The test of typicality for class certification is whether other members have the same or similar injury, whether the action is based on conduct
3

which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. Fed.Rules Civ.Proc.Rule 23(a)(3), 28 U.S.C.A.
181 Cases that cite this headnote
[17] Federal Civil Procedure Representation of class;  typicality;  standing
in general
For purposes of class certification, typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought. Fed.Rules Civ.Proc.Rule 23(a)(3), 28 U.S.C.A.
39 Cases that cite this headnote
[18] Federal Civil Procedure Sex discrimination actions
District court abused its discretion by applying impermissible legal criteria in determining that named plaintiffs’ claims in action alleging gender discrimination in national discount retailer’s promotion and management practices were typical of class claims, as required to establish typicality requirement for class certification, where district court failed to consider the effect of defenses retailer alleged were unique to the named plaintiffs’ claims. Fed.Rules Civ.Proc.Rule 23(a)(3), 28 U.S.C.A.
46 Cases that cite this headnote
[19] Federal Civil Procedure Representation of class;  typicality;  standing
in general
To determine whether named plaintiffs will adequately represent a class, courts must resolve two questions: (1) whether the named plaintiffs and their counsel have any conflicts of interest

with other class members and (2) whether the named plaintiffs and their counsel would prosecute the action vigorously on behalf of the class. Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.
251 Cases that cite this headnote
[20] Federal Civil Procedure Representation of class;  typicality;  standing
in general
Adequate representation, for class certification purposes, depends on, among other factors, an absence of antagonism between representatives and absentees, and a sharing of interest between representatives and absentees. Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.
68 Cases that cite this headnote
[21] Federal Civil Procedure Sex discrimination actions
Current female employee who had been denied promotion to position of general manager (GM) for national discount retailer was an adequate class representative, as required to support class certification in action alleging gender discrimination in retailer’s promotion and management practices; employee claimed she had been wrongly denied promotion to GM and thus shared an interest with all class members, and nothing in the record suggested employee would not vigorously pursue injunctive relief on behalf of the entire class. Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.
12 Cases that cite this headnote
[22] Declaratory Judgment Representative or class actions
Federal Civil Procedure Common interest in subject matter, questions
4

and relief;  damages issues
Class certification on grounds that action of party opposing class warrants final injunctive relief or corresponding declaratory relief is appropriate only where the primary relief sought is declaratory or injunctive. Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.
56 Cases that cite this headnote
[23] Constitutional Law Class Actions
Declaratory Judgment Representative or class actions
Federal Civil Procedure Common interest in subject matter, questions
and relief;  damages issues
Instead of considering the amount of the damages sought or the subjective intent of the class members seeking relief to determine if injunctive relief “predominates,” the relevant inquiry in determining whether to grant class certification on grounds that action of party opposing class warrants final injunctive relief or corresponding declaratory relief is what procedural safeguards are required by the Due Process Clause for the type of relief sought. U.S.C.A. Const.Amend. 14; Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.
29 Cases that cite this headnote
[24] Constitutional Law Class Actions
The absence of procedural protections of notification and an opt-out option in a class action predominantly for monetary damages violates due process. U.S.C.A. Const.Amend. 14.
2 Cases that cite this headnote

[25] Declaratory Judgment Representative or class actions
Federal Civil Procedure Sex discrimination actions
District court abused its discretion, in determining whether to grant class certification on grounds that action of party opposing class warranted final injunctive relief or corresponding declaratory relief, by focusing on evidence of subjective intent of national discount retailer alleged to have discriminated against employees on basis of gender, instead of on whether the monetary relief could be granted absent individualized determinations of each employee’s eligibility for monetary damages. Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.
5 Cases that cite this headnote
[26] Declaratory Judgment Representative or class actions
Federal Civil Procedure Common interest in subject matter, questions
and relief;  damages issues
Claims for individualized relief do not satisfy requirements for class certification on grounds that action of party opposing class warrants final injunctive relief or corresponding declaratory relief; the key to such a class is the indivisible nature of the injunctive or declaratory remedy warranted. Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.
54 Cases that cite this headnote
Attorneys and Law Firms
*974 Kenwood C. Youmans, David D. Kadue, David B. Ross, Gerlad L. Maatman, & Thomas J. Wybenga, Seyfarth Shaw LLP, New York, NY, for defendantappellant Costco Wholesale Corporation.
Brad Seligman & Jocelyn D. Larkin, The Impact Fund, Berkeley, CA; Steve Stemerman, Elizabeth A. Lawrence,
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& Sarah Varela, Davis, Cowell & Bowe, San Francisco, CA; Bill Lann Lee, Lindsay Nako, & Julia Campins, Lewis, Feinberg, Lee, Renaker & Jackson, P.C., Oakland, CA, for plaintiffs-appellees Shirley “Rae” Ellis, Leah Horstman, & Elaine Sasaki.
Appeal from the United States District Court for the Northern District of California, Marilyn H. Patel, District Judge, Presiding. D.C. No. CV–04–03341–MHP.
Before: RONALD M. GOULD, RICHARD R. CLIFTON, and N. RANDY SMITH, Circuit Judges.
OPINION
N.R. SMITH, Circuit Judge:
Costco Wholesale Corporation appeals the district court’s order granting class certification in a class action brought by Shirley “Rae” Ellis, Leah Horstman, and Elaine Sasaki (collectively Plaintiffs). In the class action, Plaintiffs allege that Costco’s promotional practices discriminate based on gender. Because we granted Costco permission to file an interlocutory appeal, our jurisdiction arises under 28 U.S.C. § 1292(e). We affirm in part, vacate in part, and remand.
This complicated case requires us to consider a number of issues relating to class certification. Several of these issues have recently been clarified by the Supreme Court’s decision in Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). Given this new precedent altering existing case law, we must remand to the district court. See Associated Builders & Contractors, Inc. v. Curry, 68 F.3d 342, 343 (9th Cir.1995). Specifically, we take the following actions: (1) Because at least one named Plaintiff (Sasaki) alleges a concrete injury that is both directly traceable to Costco’s allegedly discriminatory practices and is redressable by both injunctive relief and monetary damages, see Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir.2007) (en banc), we affirm the district court’s ruling on standing. (2) We vacate and remand the district court’s ruling as to “commonality” under Rule 23(a) of the Federal Rules of Civil Procedure. The district court failed to conduct the required “rigorous analysis” to determine whether there were common questions of law or fact among the class members’ claims. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Instead it relied on the admissibility of Plaintiffs’ evidence to reach its conclusion on

commonality. (3) We vacate the district court’s ruling as to “typicality” under Rule 23(a), because the district court failed to consider the effect that defenses unique to the named Plaintiffs’ claims have on that question. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.1992). (4) We affirm the district *975 court’s ruling that Sasaki is an adequate class representative under Rule 23(a). As a current employee who continues to be denied promotion, Sasaki has incentive to vigorously pursue injunctive relief as well as monetary damages on behalf of all the class members. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.1998). However, we vacate the district court’s finding that Ellis and Horstman could adequately represent the class, because they were former employees and had no incentive to pursue injunctive relief. (5) In light of Wal–Mart ‘s rejection of the “predominance” test, 131 S.Ct. at 2557–59, the district court must consider whether the claims for various forms of monetary relief will require individual determinations and are therefore only appropriate for a Rule 23(b)(3) class. Thus, we vacate the district court’s certification of the class under Rule 23(b)(2).
FACTUAL BACKGROUND
I. The Parties
A. Costco Costco is a corporation headquartered in Issaquah, Washington. Costco operates over 350 warehouse-style retail establishments (warehouses). These warehouses sell items ranging from groceries to electronics. Within each Costco warehouse, the management structure consists of a General Manager (GM), two to three Assistant General Managers (AGM), and three to four Senior Staff Managers. A Costco GM is responsible for the entire operation of his or her respective warehouse and earns an average salary of approximately $116,000, plus stock and bonuses. Costco AGMs are second in command within each warehouse and earn an average salary of approximately $73,000, plus stock and bonuses. Costco’s Senior Staff Managers are divided into four categories: Front End Managers, Administration Managers, Receiving Managers, and Merchandise Managers.1 Front End Managers oversee cashiers, membership/marketing personnel, cart staff, and other employees who deal directly with Costco members. Administration Managers manage administrative functions such as payroll and human resources. Receiving Managers oversee stocking of all incoming items from the receiving dock to the shelves. Merchandising Managers oversee lower level managers and are responsible for planning floor displays
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to maximize sales.
Costco promotes almost entirely from within its organization. Only current Costco AGMs are eligible for GM positions. Costco does not have any written policy explaining to employees the criteria to be considered for promotion to GM or AGM, though candidates are promoted from a list of promotable candidates. Costco does not have written guidelines explaining how candidates should be selected for the promotable lists and does not regularly inform employees about the existence of such lists. Costco does not require that more than one candidate be considered for any particular opening or that a performance evaluation or any other documents be reviewed before a recommended candidate is approved. Costco also lacks a consistent practice for interviewing potential candidates for GM and AGM openings. Costco does not keep records regarding the selection process.
Costco employs a different promotion procedure for Senior Staff Managers. Costco fills the majority of Senior Staff openings by rotating managers among the four Senior Staff positions. This rotation is *976 part of Costco’s philosophy and, in Costco’s opinion, trains and develops managers for future advancement by exposing them to different aspects of Costco’s operations. Like the GM and AGM promotion procedures, Costco has no written guidelines regarding rotation of Senior Staff Managers.
B. Ellis Costco hired Shirley Ellis as an AGM in 1998. Prior to joining Costco, Ellis worked for nearly 20 years in retail management, including five years as a general manager for Sam’s Club (Costco’s chief competitor). According to Ellis, she left Sam’s Club, because she was actively recruited by Costco and promised promotion to GM within a year. On the other hand, Costco claims that it recruited Ellis because she misrepresented herself as a star at Sam’s Club, when she had, in fact, lost her job for poor performance.
In Ellis’s first year with Costco, she transferred locations twice in order to further her goal of promotion to GM. During this time, several GM positions became available, but she did not learn of the openings until after they were filled. In 2000, Ellis transferred to Colorado to assist her sick mother. According to Ellis, a supervisor told her that it would not hurt her chances for promotion. After six months, Ellis notified Costco that she was again able to relocate anywhere as a GM. In 2002, Ellis sent a letter to her supervisors expressing a “burning desire” to help Costco be successful and advance within the company,

asking how the GM selection process worked, where she stood as a candidate for promotion, and what she needed to do to become a GM.
In October 2002, Ellis, while still employed with Costco as an AGM, filed a gender discrimination charge with the Equal Employment Opportunity Commission (EEOC), alleging that she had been passed over for promotion to GM because she was female. Ellis left Costco in November 2004.
C. Horstman Leah Horstman worked for Costco for more than 23 years beginning in 1981. In 1996, after 15 years with Costco, Horstman was promoted to be a Senior Staff Manager. By 2000, Horstman had rotated through the Administrative Manager, Merchandise Manager, and Receiving Manager positions. She had earlier worked as an Assistant Front End Manager, but did not rotate to the Front End Manager position because of scheduling conflicts and her duties as a single mother with two young daughters.
Throughout her career with Costco, Horstman repeatedly expressed her interest in advancing to AGM and GM and questioned supervisors about the requirements for both positions. Heeding the advice of a supervisor, Horstman also transferred to a high-volume store and expressed a willingness to move from California to Texas in order to become an AGM. However, in her final three annual selfperformance reviews, Horstman indicated that her goal was to stay in a position similar to that which she held at the time for three to five years so that she could balance her family life and then to continue her advancement to AGM and GM. Horstman filed a discrimination charge with the EEOC in October 2003 and resigned in June 2004.
D. Sasaki Elaine Sasaki began working for Costco in 1985. Sasaki advanced to become a Senior Staff Manager within four years. She received consistently high performance reviews, and her GM first indicated that she was ready to be promoted to AGM in 1993. Although Sasaki offered to *977 transfer to places as far away as Hong Kong, she was not promoted to AGM until 1996. Sasaki is currently an AGM in Visalia, California.
Since Sasaki was promoted to AGM in 1996, she has not been selected for at least eight GM positions. She claims she was not aware of any of these openings until after they were filled. Sasaki has relocated four times to
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improve her chances of promotion to GM. In September 2003, Sasaki wrote to Costco’s director of human resources expressing her concern that she had not been promoted because of her gender. At least some of her concern stems from an incident in which she claimed to rebuff the advances of her regional Senior Vice President in a hotel elevator and was later told by him that he holds her to higher standards than other AGMs. According to Costco, Sasaki has not been promoted because both her performance appraisals and her self-evaluations identify areas for improvement. Further, she has never ranked high on Costco’s GM promotable list. Sasaki filed a gender discrimination charge with the EEOC on March 1, 2005. She remains employed as an AGM at Costco.
II. Procedural History The EEOC dismissed Ellis’s charge of gender discrimination, after which Ellis filed suit in federal district court “on behalf of a Title VII class of all women employed by Costco in the United States denied promotion to [AGM] and/or [GM] positions.” Ellis’s complaint sought class-wide injunctive relief, lost pay, and compensatory and punitive damages. Her second amended complaint included Horstman and Sasaki as named Plaintiffs. In August 2006, Plaintiffs filed a motion for class certification under Rule 23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure supported by numerous declarations, deposition transcripts, and Costco company documents. Plaintiffs also submitted the declarations of three experts in support of their class certification motion: statistician Dr. Richard Drogin; labor economist Dr. Marc Bendick; and sociologist Dr. Barbara Reskin. Dr. Drogin concluded that female employees are promoted at a slower rate and are under-represented at the AGM and GM levels relative to their male peers. Dr. Bendick concluded that female Costco employees are under-represented in the Senior Staff Manager, AGM, and GM positions relative to female employees in similar positions at comparable companies. Dr. Reskin concluded that Costco has a pervasive culture of gender stereotyping and paternalism.
Costco opposed class certification and filed 200 employee declarations in support. Costco additionally submitted declarations of its own experts, most notably, Dr. Ali Saad, a statistician and labor economist. Dr. Saad concluded that women are not under-represented at Costco and that any gender disparities, if they exist, are confined to two regions. Costco offered additional expert declarations concluding that gender disparities, if they exist, are based upon factors such as women’s lack of interest in jobs requiring early morning hours. Costco also filed three separate motions to strike Plaintiffs’ experts,

supported by Costco’s expert declarations challenging the relevance and reliability of Plaintiffs’ experts’ analysis and conclusions.
On January 11, 2007, the district court filed a 37–page order granting Plaintiffs’ motion to certify a class. The district court certified a class that “consists of all current and former female Costco employees nationwide who have been denied promotion to GM or AGM or denied promotion to Senior Staff positions since January 3, 2002.” Ellis v. Costco Wholesale Corp., 240 F.R.D. 627, 652 (N.D.Cal.2007). Because the district court certified a class broader than the class requested by *978 Plaintiffs,2 the parties stipulated to a narrower class definition that consists of “all women employed by Costco on or after January 3, 2002 in a U.S. warehouse (including Puerto Rico) who, at any time, have been employed at Costco as a Senior Staff Manager ... or [AGM]. The class includes women who have been promoted to [GM] or [AGM] since January 3, 2002.”3 Stipulation and Order Regarding Class Definition, Class Notice and For Regulation of Costco’s Communications 2.
The district court found that all of the requirements of Rule 23(a)—numerosity, commonality, typicality, and adequacy—had been satisfied. Id. at 638–42. It further found that Rule 23(b)(2)4 was satisfied, ruling that signed statements from the Plaintiffs proved their predominant intent in filing suit was to recover injunctive relief. Id. at 642–43. It dismissed Costco’s arguments that Plaintiffs’ claims for punitive and compensatory damages precluded such a finding. Id. at 643. It did not consider the fact that two of the named Plaintiffs—Ellis and Horstman—were no longer employees of Costco at the time of the filing of the complaint in making its determination.
As part of its order, the district court ruled on Costco’s motions to strike Plaintiffs’ experts. Id. at 644–51. The district court granted in part and denied in part Costco’s motion regarding Dr. Drogin, striking Dr. Drogin’s conclusion regarding the average number of years required to reach AGM because of the dates Dr. Drogin used to conduct his analysis. Id. at 648–49. The district court denied Costco’s motions regarding Dr. Bendick and Dr. Reskin. Id. at 651.
Costco then sought leave to file an interlocutory appeal, alleging that the district court committed numerous errors by certifying the class. On May 14, 2007, we granted permission to appeal.
ANALYSIS
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I. Standing [1] [2] [3] [4] [5] Costco argues that the district court abused its discretion by certifying the class, because Plaintiffs lack standing to seek injunctive relief. “Standing is a threshold matter central to our subject matter jurisdiction.” Bates, 511 F.3d at 985. We review the district court’s factual findings under the clearly erroneous standard and review the district court’s determination of standing de novo. Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 725 (9th Cir.2007). In a class action, the plaintiff class bears the burden of showing that Article III standing exists. Bates, 511 F.3d at 985. “[S]tanding requires that (1) the plaintiff suffered an injury in fact, i.e., one that is sufficiently concrete and particularized and actual or imminent, not conjectural or hypothetical, (2) the injury is fairly traceable to the challenged conduct, and (3) the injury is likely to be redressed by a favorable decision.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)) (internal quotation marks omitted). Plaintiffs must show standing with respect to each form of relief sought. Id. Standing exists if at least one named plaintiff meets the requirements. Id.
*979 [6] In order to satisfy the Lujan requirements, “[t]he plaintiff must demonstrate that he has suffered or is threatened with a concrete and particularized legal harm, coupled with a sufficient likelihood that he will again be wronged in a similar way.” Id. (internal citations and quotation marks omitted). “Past wrongs do not in themselves amount to a real and immediate threat of injury necessary to make out a case or controversy” but “are evidence bearing on whether there is a real and immediate threat of repeated injury.” Id. (internal citations, alterations, and quotation marks omitted). For Plaintiffs to have standing here, the claimed threat of injury must be likely to be redressed by the prospective injunctive relief. Id.
[7] Sasaki satisfies all aspects of the standing requirements. The parties’ stipulated class description includes female Costco employees who have been denied promotion to AGM or GM. Sasaki has been denied promotion to GM. Costco’s failure to promote Sasaki (a current AGM) to GM is a “concrete and particularized” harm, because the injury affects her “in a personal and individual way.” Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130. Additionally, the “crux” of Plaintiffs’ lawsuit is that the “harm alleged is directly traceable” to Costco’s promotion practices and general corporate culture, which Plaintiffs allege are discriminatory to women. See Bates, 511 F.3d at 986 (citation omitted). Sasaki can also show that there is a significant likelihood that she will be wronged again in a similar way. See id. at 985. Sasaki has been employed as an AGM for twelve years. Despite her expressed interest

in becoming a GM, coupled with numerous relocations to avail herself of that opportunity, Sasaki has been passed over for promotion at least eight times. Because Costco’s challenged promotion practices for GM and AGM positions have not changed,5 there is a likelihood that Costco will continue to fail to promote Sasaki. Finally, if Costco’s allegedly discriminatory policies are enjoined, Sasaki’s claimed threat of being passed over for promotion due to her gender is likely to be redressed. See Bates, 511 F.3d at 985.
Costco, nevertheless, argues that Sasaki lacks standing because, as a current AGM, she cannot challenge the denial of AGM promotions. This argument more appropriately addresses whether Sasaki’s claim is typical of other class members, which we address below. Sasaki’s status as a current AGM does not preclude her from meeting Lujan’s standing requirements, given that the purported class also includes women denied promotion to GM. Because only one named Plaintiff must meet the standing requirements, the district court did not err in finding that Plaintiffs have standing.
II. Rule 23(a) The district court held that Plaintiffs established all four Rule 23(a) factors necessary for class certification. Costco argues that the district court abused its discretion by finding that Plaintiffs established commonality, typicality, and adequacy of representation. However, Costco does not contest the district court’s holding that Plaintiffs established numerosity.
Parties seeking class certification bear the burden of demonstrating that they have met each of the four requirements of Federal Rule of Civil Procedure 23(a) and *980 at least one of the requirements of Rule 23(b). Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.), amended by 273 F.3d 1266 (9th Cir.2001). Here, the district court certified the class under Rule 23(b)(2).
Rule 23(a) requires parties seeking class certification to establish: (1) that the class is so large that joinder of all members is impracticable (numerosity); (2) that there are one or more questions of law or fact common to the class (commonality); (3) that the named parties’ claims are typical of the class (typicality); and (4) that the class representatives will fairly and adequately protect the interests of other members of the class (adequacy of representation). Fed.R.Civ.P. 23(a).
[8] [9] We review the district court’s decision regarding class certification for abuse of discretion. Lozano, 504
9

F.3d at 725. “The district court abuses its discretion if its certification order is premised on impermissible legal criteria.” Id. (citing Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 479 (9th Cir.1983)).
[10] The United States Supreme Court requires district courts to engage in a “rigorous analysis” of each Rule 23(a) factor when determining whether plaintiffs seeking class certification have met the requirements of Rule 23. Falcon, 457 U.S. at 161, 102 S.Ct. 2364. The Supreme Court has also noted that the “[e]valuation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims. The typicality of the representative’s claims or defenses, the adequacy of the representative, and the presence of common questions of law or fact are obvious examples.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n. 12, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (internal citation and quotation marks omitted). When considering class certification under Rule 23, district courts are not only at liberty to, but must perform “a rigorous analysis [to ensure] that the prerequisites of Rule 23(a) have been satisfied.” Wal–Mart, 131 S.Ct. at 2551 (internal citation and quotation marks omitted). In many cases, “that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped.” Id. Here, the question of commonality overlaps with Plaintiffs’ claim that Costco’s system of promotion and corporate culture constitutes a pattern or practice of discrimination.
A. Commonality [11] Costco challenges the district court’s finding of commonality, arguing primarily that the district court failed to conduct the required “rigorous analysis” and impermissibly declined to resolve numerous disputed issues of law and fact necessary to determine whether Plaintiffs established commonality. Costco argues that the district court erred by relying on the declarations of Plaintiffs’ experts to establish commonality.6 We agree. Because *981 the district court premised its certification order on improper legal criteria, Lozano, 504 F.3d at 725, the district court abused its discretion. We vacate its order as to commonality and remand for the district court to reconsider this issue consistent with our holding today.
To show commonality, Plaintiffs must demonstrate that there are questions of fact and law that are common to the class. Fed.R.Civ.P. 23(a)(2). The requirements of Rule 23(a)(2) have “been construed permissively,” and “[a]ll questions of fact and law need not be common to satisfy the rule.” Hanlon, 150 F.3d at 1019. However, it is insufficient to merely allege any common question, for

example, “Were Plaintiffs passed over for promotion?” See Wal–Mart, 131 S.Ct. at 2551–52. Instead, they must pose a question that “will produce a common answer to the crucial question why was I disfavored.” Id. at 2552; see also id. at 2551 (“What matters to class certification is not the raising of common ‘questions’ ... but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” (internal citation, alteration, and quotation marks omitted)). In other words, Plaintiffs must have a common question that will connect many individual promotional decisions to their claim for class relief.
The precise standard the district court used to evaluate commonality is difficult to discern from its order. The district court began by citing Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975), for the proposition that “in adjudicating a motion for class certification, the court accepts the allegations in the complaint as true so long as those allegations are sufficiently specific to permit an informed assessment as to whether the requirements of Rule 23 have been satisfied.” Ellis, 240 F.R.D. at 635. It proceeded to note, relying on Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177–78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), that the merits of the class members’ substantive claims were generally irrelevant to its inquiry and that it should not inquire into the merits of the suit during the certification process. Id. However, later in its order, the district court seemed to qualify its position by noting that it may consider the merits to the extent that they overlap with class certification issues, relying on In re Initial Public Offerings Securities Litigation, 471 F.3d 24 (2d Cir.2006). Id. After all this, the district court stated in its analysis of commonality, that “[t]o the extent that the parties’ commonality arguments overlap with the merits, the court has evaluated all relevant evidence to determine whether commonality has been established.” Id. at 638. This statement mitigates the district court’s earlier erroneous suggestions that it may (but not must ) consider the merits to the extent they overlap with the commonality issue.
At best, it was unclear what standard the district court used. Regardless of whether the district court applied an erroneous standard, we take this opportunity to clarify the correct standard. As we explained above, the merits of the class members’ substantive claims are often highly relevant when determining whether to certify a class. More importantly, it is not correct to say a district court may consider the merits to the extent that they overlap with class certification issues; rather, a district court must consider the merits if they overlap with the Rule 23(a) requirements. Wal–Mart, 131 S.Ct. at 2551–52; Hanon, 976 F.2d at 509.
10

*982 In Wal–Mart, for example, the Supreme Court considered whether the statistical and sociological studies cited by the plaintiffs were sufficient to link the alleged discriminatory practice to harm suffered by the entire class. 131 S.Ct. at 2553–55. In that case, the alleged discriminatory practice was the exercise of discretion by thousands of individual managers throughout the country. Id. The only evidence of a nationwide practice of discrimination was Wal–Mart’s “strong corporate culture that makes it vulnerable to gender bias.” Id. (internal quotation marks omitted). However, plaintiffs’ expert was unable to show to what extent this was true—it was unclear whether “0.5 percent or 95 percent of the employment decisions” were based on this alleged bias. Id. at 2554. Without some evidence of the extent of the bias, no “common mode of exercising discretion that pervades the entire company” (and thus no common question) had been shown. See id. at 2554–55.
[12] [13] [14] [15] Part of the confusion over the standard applied by the district court in this case stems from the fact that the district court addressed Costco’s objections to Plaintiffs’ experts in both its commonality analysis and its analysis of Costco’s motions to strike. As the district court noted, the parties staged a battle of the experts over the issue of commonality. In its analysis of Costco’s motions to strike, the district court correctly applied the evidentiary standard set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Cf. Wal–Mart, 131 S.Ct. at 2553–54 (doubting proposition that Daubert did not apply to the certification stage). Under Daubert, the trial court must act as a “gatekeeper” to exclude junk science that does not meet Federal Rule of Evidence 702’s reliability standards by making a preliminary determination that the expert’s testimony is reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 145, 147–49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Daubert does not require a court to admit or to exclude evidence based on its persuasiveness; rather it requires a court to admit or exclude evidence based on its scientific reliability and relevance. 509 U.S. at 589–90, 113 S.Ct. 2786. Thus, an expert’s “inference or assertion must be derived by the scientific method” to be admissible. Id. at 590, 113 S.Ct. 2786. A trial court has broad latitude not only in determining whether an expert’s testimony is reliable, but also in deciding how to determine the testimony’s reliability. Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167.
However, the district court seems to have confused the Daubert standard it correctly applied to Costco’s motions to strike with the “rigorous analysis” standard to be applied when analyzing commonality. Instead of judging the persuasiveness of the evidence presented, the district court seemed to end its analysis of the plaintiffs’ evidence

after determining such evidence was merely admissible. For example, the district court stated that, although “Costco challenges the propriety of using aggregate data,” such “arguments attack the weight of the evidence and not its admissibility.” Ellis, 240 F.R.D. at 639. Therefore, to the extent the district court limited its analysis of whether there was commonality to a determination of whether Plaintiffs’ evidence on that point was admissible, it did so in error.
Plaintiffs introduced expert declarations to establish that: (1) female employees are promoted at a slower rate and are underrepresented at the AGM and GM levels relative to their male peers; (2) female Costco employees are underrepresented in the Senior Staff Manager, AGM, and GM positions relative to female employees in similar positions at comparable companies; and (3) Costco has a pervasive culture of *983 gender stereotyping and paternalism. Costco offered its own evidence to show that: (1) “women are not underrepresented at Costco and that any gender disparities, if they exist, are confined to two regions of Costco;” and (2) “gender disparities, if they exist, are based upon factors, such as women’s lack of interest in jobs requiring early morning hours, which are unrelated to Costco’s culture and promotion processes.” Id. at 638.
As an initial matter, we agree that the district court was not required to resolve factual disputes regarding: (1) whether women were in fact discriminated against in relevant managerial positions at Costco, or (2) whether Costco does in fact have a culture of gender stereotyping and paternalism. However, the district court was required to resolve any factual disputes necessary to determine whether there was a common pattern and practice that could affect the class as a whole.7 If there is no evidence that the entire class was subject to the same allegedly discriminatory practice, there is no question common to the class. In other words, the district court must determine whether there was “significant proof that [Costco] operated under a general policy of discrimination.” Wal– Mart, 131 S.Ct. at 2553 (alteration omitted).8
Whether gender disparities are confined to only two regions of Costco’s eight regions, for example, addresses precisely the question of whether there are common questions of law and fact among the putative class members. If, as Plaintiffs allege, promotion decisions are based on the biased attitudes of the CEO and upper management, one would expect disparities in all, or at least most, regions. A disparity in only 25% of the regions, however, would not show that “discrimination manifested itself in ... promotion practices in the same general fashion,” Wal–Mart, 131 S.Ct. at 2553, throughout Costco—which is necessary to show
11

commonality in a nationwide class. If no such nationwide discrimination exists, Plaintiffs would face an *984 exceedingly difficult challenge in proving that there are questions of fact and law common to the nationwide class.
The district court failed to engage in a “rigorous analysis” on this point. For example, Dr. Saad, Costco’s expert, concluded that any gender disparities, if they exist, are confined to two regions. The district court concluded that Dr. Saad’s analysis was “relevant and reliable for the purposes of commonality and ... that plaintiffs [had] not raised any significant challenges in this regard.” Ellis, 240 F.R.D. at 639. The district court ultimately denied Costco’s challenge on this point, however, stating that “Dr. Saad’s analysis has presented an alternative approach but it has not discredited Dr. Drogin’s results or methods [the evidence proffered by Plaintiffs].” Id. Instead of examining the merits to decide this issue, it appears the district court merely concluded that, because both Plaintiffs’ and Costco’s evidence was admissible, a finding of commonality was appropriate.
The district court applied an impermissible legal criteria, see Lozano, 504 F.3d at 725, and failed to resolve the critical factual disputes centering around the national versus regional nature of the alleged discrimination. Accordingly, we vacate the district court’s finding of commonality and remand for application of the appropriate legal standard. Because we vacate and remand, rather than reverse, the district court’s commonality determination, we also address the other Rule 23(a) factors.
B. Typicality [16] [17] To demonstrate typicality, Plaintiffs must show that the named parties’ claims are typical of the class. Fed.R.Civ.P. 23(a)(3). “The test of typicality ‘is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.’ ” Hanon, 976 F.2d at 508 (citation omitted). “Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought.” Id. (internal citation and quotation marks omitted).
Costco argues that Plaintiffs cannot satisfy the typicality requirement, because each of the named Plaintiffs’ respective discrimination claims are subject to unique defenses. The district court, citing Hanon, rejected this argument and held that “as a general matter, individualized defenses do not defeat typicality.” Ellis,

240 F.R.D. at 641.
[18] Hanon, however, supports Costco’s position. In Hanon, we stated that “a named plaintiff’s motion for class certification should not be granted if ‘there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.’ ” 976 F.2d at 508 (quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir.1990)). We found that the named plaintiff did not satisfy Rule 23(a)’s typicality requirement because his “unique background and factual situation require[d] him to prepare to meet defenses that [were] not typical of the defenses which may be raised against other members of the proposed class.” Id.
Costco asserts that it has unique defenses against each of the named Plaintiffs. Specifically, as to Horstman, Costco’s claimed defense is that, due to family reasons, Horstman rejected rotation to Front End Manager and stated several times that she wished to defer her pursuit of promotion for three to five years. As to Ellis, Costco’s claimed defense is that Ellis misrepresented her way into Costco, lacked the Costco experience of other *985 AGMs, transferred to a market with limited promotional opportunities, and was disciplined for abusing subordinates. As to Sasaki, Costco’s claimed defense is that Sasaki is not an outstanding performer and that Costco’s expert has concluded that there is no statistical evidence supporting a claim that females are promoted to GM at a lesser rate in Sasaki’s region.
We decline to express an opinion, in the first instance, about whether these defenses are typical of those that Costco may raise against other members of the class or whether they are unique such that Plaintiffs cannot satisfy Rule 23(a)’s typicality requirement.9 Instead, we hold that the district court misapplied Hanon, and thus abused its discretion by basing its typicality determination on impermissible legal criteria. See Lozano, 504 F.3d at 725. We vacate the district court’s typicality finding and remand so that the district court may apply the appropriate legal standard.
C. Adequacy [19] [20] The named Plaintiffs must fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a)(4). To determine whether named plaintiffs will adequately represent a class, courts must resolve two questions: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Hanlon, 150 F.3d at
12

1020. Adequate representation depends on, among other factors, an absence of antagonism between representatives and absentees, and a sharing of interest between representatives and absentees. Molski v. Gleich, 318 F.3d 937, 955 (9th Cir.2003), overruled on other grounds by Dukes, 603 F.3d at 617.
Costco argues that the district court abused its discretion by holding that the named Plaintiffs are adequate representatives. Specifically, Costco argues that Ellis and Horstman have little incentive to vigorously pursue injunctive relief on behalf of the class, because they are former employees. Costco also argues that Sasaki has little incentive to vigorously pursue relief for those denied promotion to AGM, because she has already reached the level of AGM.
[21] Sasaki is an adequate class representative. Costco’s argument, that she does not have an incentive to vigorously represent employees who have been denied a promotion to AGM, misses the point of the litigation. The purported class is composed of women who have been denied promotion to either AGM or GM. The Costco policies and culture challenged by Plaintiffs apply equally to AGM and GM promotion decisions. Sasaki, although a current AGM, claims she has been wrongly denied promotion to GM and thus shares an interest with all class members. Nothing in the record suggests that Sasaki would not vigorously pursue injunctive relief *986 on behalf of the entire class. Thus, we hold that the district court did not abuse its discretion by finding that Sasaki is an adequate representative.
Whether Ellis and Horstman adequately represent the class, however, depends entirely on how the district court chooses to manage the class on remand. Currently, the certified class includes both current and former employees of Costco. Ellis and Horstman, as former Costco employees, would share an interest with many class members who are former Costco employees. However, as we discuss infra, Plaintiffs not employed by Costco throughout this case do not have standing to seek injunctive relief. As former employees, Ellis and Horstman would not share an interest with class members whose primary goal is to obtain injunctive relief. Thus, as the class currently stands, Ellis and Horstman will not adequately protect the interests of the class as a whole. If, however, the district court decides on remand to certify a class of employees under Rule 23(b)(3), pursuant to our instructions in Part III of this opinion, it will need to consider in the first instance whether Ellis and Horstman can adequately represent the interests of the second class—i.e., those seeking monetary damages.

III. Rule 23(b) Turning to Rule 23(b), Costco argues that the district court abused its discretion by certifying the class pursuant to Rule 23(b)(2), because Plaintiffs do not primarily seek injunctive relief. Rule 23(b)(2) permits class actions for declaratory or injunctive relief if “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....” Id. We agree that certification under Rule 23(b)(2) was improper, although on another basis.
Relying primarily on our decision in Molski v. Gleich, 318 F.3d at 950, the district court examined the Plaintiffs’ subjective intent and held that injunctive relief was the predominant form of relief sought. Ellis, 240 F.R.D. at 642–43. Specifically, the district court relied on declarations submitted by the named Plaintiffs stating that their primary objective was obtaining injunctive relief and noted that Costco had not offered any alternative method of discerning Plaintiffs’ subjective intent in bringing the suit. Id. Having so concluded, the district court easily found that Plaintiffs’ claims for compensatory and punitive damages were merely incidental to the claim for injunctive relief.
[22] “Class certification under Rule 23(b)(2) is appropriate only where the primary relief sought is declaratory or injunctive.” Zinser, 253 F.3d at 1195. Although we have previously held that in “Rule 23(b)(2) cases, monetary damage requests are generally allowable only if they are merely incidental to the litigation,” Kanter v. Warner– Lambert Co., 265 F.3d 853, 860 (9th Cir.2001), this standard has been called into doubt by the Supreme Court. Wal–Mart, 131 S.Ct. at 2560 (“We need not decide in this case whether there are any forms of ‘incidental’ monetary relief that are consistent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause.”).
[23] The Supreme Court recently rejected the “predominance” test for determining whether monetary damages may be included in a 23(b)(2) class certification. Id. at 2559. Instead of considering the amount of the damages sought or the subjective intent of the class members seeking relief to determine if injunctive relief “predominates,” the relevant inquiry is what procedural safeguards are required by the *987 Due Process Clause for the type of relief sought. Id. at 2557–58.
[24] The Advisory Committee, in amending the Rules to include a (b)(3) class, noted that it was created for situations where “class-action treatment is not as clearly called for.” Id. at 2558 (citation omitted). While
13

expanding the breadth of possible class actions, it also expanded the procedural protections afforded the class. Id. Unlike classes certified under Rule 23(b)(1) or (b)(2), a (b)(3) class is not mandatory. Id. Instead, putative class members are afforded the right to be notified of the action and to opt out of the class. Id. (citing Rule 23(c)(2)(B)). The absence of these protections in a class action predominantly for monetary damages violates due process. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). The Wal– Mart court later opined: “We fail to see why the Rule should be read to nullify these protections whenever a plaintiff class, at its option, combines its monetary claims with a request—even a ‘predominating request’—for an injunction.” 131 S.Ct. at 2559.
[25] [26] The Court relatedly held that “claims for individualized relief (like the backpay at issue here) do not satisfy [Rule 23(b)(2) ],” noting that the “key to the (b)(2) class is the ‘indivisible nature of the injunctive or declaratory remedy warranted.’ ” Id. at 2557 (citation omitted). Rule 23(b)(2) “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.” Id. The district court erred, therefore, by focusing on evidence of Plaintiffs’ subjective intent, instead of on whether the monetary relief could be granted absent “individualized determinations of each employee’s eligibility for [monetary damages].” Id. at 2560.
We vacate the district court’s order finding that Plaintiffs had satisfied Rule 23(b)(2) and remand for the district court to apply the legal standard established in Wal–Mart. On remand, we highlight several factors for the district court to consider.
First, if the district court determines that a (b)(2) class may be certified consistent with this opinion, it may consider whether Plaintiffs’ claim for punitive damages may properly be sought by a (b)(2) class.10 The district court earlier found that claims for punitive damages are suitable for certification under 23(b)(2), “because such ... claim[s] focus[ ] on the conduct of the defendant and not the individual characteristics of the plaintiffs.” Ellis, 240 F.R.D. at 643; see also Dukes, 603 F.3d at 622 (noting that plaintiffs’ claim for punitive damages did “not require individualized punitive damages determinations”); Kolstad v. Am. Dental Assoc., 527 U.S. 526, 535, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999) (noting that whether punitive damages are warranted is based on the employer’s state of mind, i.e., if “[t]he employer [acted] with ‘malice or with reckless indifference to the plaintiff’s federally protected rights.’ ” (quoting 42 U.S.C. § 1981a(b)(1)) (emphasis and alterations omitted)). The court may consider whether punitive damages are an

allowable “form[ ] of ‘incidental’ monetary relief” consistent with the Court’s interpretation of 23(b)(2) because they do not require an individual determination. See Wal–Mart, 131 S.Ct. at 2560.
Second, the district court must consider whether a class may be certified under (b)(3) to address Plaintiffs’ compensatory damages and backpay claims. As the court properly recognized, compensatory *988 damages require individual determinations. Ellis, 240 F.R.D. at 643. We remand, therefore, for the district court to consider whether the class may properly be certified under Rule 23(b)(3). The district court must also consider whether the named Plaintiffs are adequate representatives of the putative (b)(3) class.
Finally, if the district court determines that a class may be certified, it must consider anew how to manage those members of the proposed class who are no longer Costco employees. As the Supreme Court explained, only current employees have standing to seek injunctive relief. Wal– Mart, 131 S.Ct. at 2559–60. Therefore, the district court must consider how best to define the class(es) to ensure that all class members have standing to seek the requested relief. See, e.g., Dukes, 603 F.3d at 620 (suggesting the court certify a “Rule 23(b)(2) class for equitable relief and a separate Rule 23(b)(3) class for damages”).
IV. Manageability Finally, Costco argues that certification of the class would either be unmanageable or violate its constitutional rights. Although the district court declined to formally adopt a trial plan at this stage, it did indicate that it could accommodate the need for individualized determinations of compensatory damages by bifurcating the trial into different phases. Costco, relying on International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), argues that such a plan is unmanageable and violates both its due process and Seventh Amendment rights.
Because the district court has not actually adopted a trial plan yet and in light of our holding today to vacate the district court’s certification of the class under Rule 23, it is premature for us to address these arguments now.
CONCLUSION
To summarize, we hold that at least one named Plaintiff (Sasaki) has standing to bring suit. We hold that the
14

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.

AFFIRMED in part; VACATED in part; REMANDED.
Parties shall bear their own costs on appeal.
All Citations 657 F.3d 970, 113 Fair Empl.Prac.Cas. (BNA) 496, 94 Empl. Prac. Dec. P 44,282, 80 Fed.R.Serv.3d 832, 11 Cal. Daily Op. Serv. 11,904, 2011 Daily Journal D.A.R. 14,156

Footnotes

1

Most warehouses employ four Senior Staff Managers—one for each of the four Senior Staff Manager positions. However, in

some larger warehouses, one of the AGMs assumes the role of Administration Manager.

2

The class certified by the district court was broader than that sought by Plaintiffs because it included those employees who had

been denied promotion to Senior Staff positions.

3

Costco did not stipulate to certification of the class, only to narrowing the district court’s description of the class assuming that it

was properly certified.

4

Although Plaintiffs requested certification under both Rule 23(b)(2) and (b)(3), the district court did not address certifying the

class under (b)(3).

5

Costco’s adoption of the Rothman Workplan does not change this result. The Workplan was adopted in response to criticisms

that Costco’s inconsistent promotion practices allowed for favoritism and individual biases. However, it appears the Rothman

Workplan only changed promotion practices as to the four Senior Staff jobs, but not as to AGM or GM positions.

6

In the district court, Costco moved to strike the entirety of Plaintiffs’ three expert declarations. With the exception of Dr. Drogin’s

conclusion regarding the average number of years required to reach AGM, the district court held that Plaintiffs’ experts’

declarations were admissible. It noted that, while Costco’s arguments may eventually render the declarations unconvincing at

trial, they did not render the declarations inadmissible. On appeal, Costco does not argue that the district court abused its

discretion by failing to strike Plaintiffs’ experts’ declarations. Instead, it devotes a substantial portion of its opening brief to

arguments challenging the validity of the conclusions in Plaintiffs’ experts’ declarations, but only in the context of challenging the

district court’s conclusion that Plaintiffs had established commonality under Rule 23(a). We “will not ordinarily consider matters

on appeal that are not specifically and distinctly argued in appellant’s opening brief....” Miller v. Fairchild Indus., Inc., 797 F.2d

727, 738 (9th Cir.1986). Therefore, we affirm the district court’s decision to not strike Plaintiffs’ experts’ declarations and

consider Costco’s challenges to Plaintiffs’ experts only in our review of the district court’s Rule 23(a) analysis.

7

For example, the parties dispute whether promotional decisions for AGMs were made by the GM of the local warehouse, or were

made or strongly influenced by upper management at Costco headquarters. If the decisions were made at the local warehouse,

Plaintiffs likely cannot show this decisionmaking process affected the class as a whole, since “demonstrating the invalidity of one

manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide

class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.”

WalMart, 131 S.Ct. at 2554.

8

Accordingly, we dispose of most of Costco’s arguments on this point. Costco seems to equate a “rigorous analysis” with an in-

depth examination of the underlying merits—i.e., whether Costco was in fact discriminating against women. See, e.g., Costco’s

Opening Br. 21 (“[T]here is no commonality absent (a) statistical proof of under-promotion of women and (b) a plausible link

between the practice and the impact.”). This is incorrect. The district court is required to examine the merits of the underlying

claim in this context, only inasmuch as it must determine whether common questions exist; not to determine whether class

15

members could actually prevail on the merits of their claims. See Dukes v. Wal–Mart Stores, Inc., 603 F.3d 571, 592 (9th Cir.2010) (en banc), reversed Wal–Mart, 131 S.Ct. 2541 (“[P]laintiffs and defendants disagree on whose statistical findings and observations are more credible, but this disagreement is relevant only to the merits of plaintiffs’ claim—whether plaintiffs actually suffered disparate treatment—and not to whether plaintiffs have asserted common questions of fact or law....’ ” (citation omitted)); see also Wal–Mart, 131 S.Ct. at 2552 n. 6 (clarifying that Rule 23 does not authorize a preliminary inquiry into the merits of the suit for purposes other than determining whether certification was proper) (citing Eisen, 417 U.S. at 177, 94 S.Ct. 2140). To hold otherwise would turn class certification into a mini-trial.

9

Costco also argues that Plaintiffs’ claims are not typical because experience as a Merchandise Manager is essential to promotion

and, though some plaintiffs may lack such experience, the named Plaintiffs do not. We reject this argument. Plaintiffs do not

challenge whether Costco’s unofficial requirement that a person have experience as a Merchandise Manager to be eligible for

promotion is, by itself, a discriminatory promotion requirement. Unique defenses aside, all three Plaintiffs allege that they were

not promoted because of their gender. Differing factual scenarios resulting in a claim of the same nature as other class members

does not defeat typicality. Hanon, 976 F.2d at 508. Thus, the fact that the named Plaintiffs had Merchandise Manager experience

does not mean that Plaintiffs’ claims of gender discrimination are not typical of those of absent class members, even though

other class members may lack experience as a Merchandise Manager.

10 In the alternative, if the district court certifies a (b)(3) class in place of, or in addition to a (b)(2) class, it may determine that the punitive damages claim is more appropriate to a (b)(3) class.

16

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7

8 SHIRLEY “RAE” ELLIS, et al.,

No. C-04-3341 EMC

United States District Court For the Northern District of California

9

Plaintiffs,

10

v.

11 COSTCO WHOLESALE CORPORATION,

12

Defendant.

___________________________________/

13

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(Docket No. 814)

14

15

Plaintiff Elaine Sasaki asserts, in essence, two claims against Defendant Costco Wholesale

16 Corp.: (1) a claim for disparate treatment based on gender and (2) a claim for retaliation.1 The thrust

17 of Ms. Sasaki’s disparate treatment claim is that she was not promoted – from the position of

18 Assistant General Manager (“AGM”) to General Manager (“GM”) – because of her gender. The

19 thrust of Ms. Sasaki’s retaliation claim is that, after making an internal complaint about gender

20 discrimination in promotions, filing her DFEH complaint based on disparate treatment, and joining

21 in the instant lawsuit, she was retaliated against – again, by not being promoted.

22

Currently pending before the Court is Costco’s motion for summary judgment or, in the

23 alternative, for partial summary judgment. According to Costco, it is entitled to summary judgment

24 on both claims but, if not, at the very least, the Court should grant it partial summary judgment

25 because part of each claim is time barred. Having considered the parties’ briefs and accompanying

26

27 28
Act.

1 The claims are predicated on Title VII and the California Fair Employment and Housing

United States District Court For the Northern District of California

1 submissions, as well as all other evidence of record, the Court hereby GRANTS in part and

2 DENIES in part Costco’s motion.

3

I. DISCUSSION2

4 A. Legal Standard

5

Under Federal Rule of Civil Procedure 56(a), a party may seek summary judgment on a

6 claim or even part of a claim. “The court shall grant summary judgment if the movant shows that

7 there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter

8 of law.” Fed. R. Civ. P. 56(a).

9

The moving party has the burden of establishing the absence of a

genuine dispute of material fact. The court must view the evidence in

10

the light most favorable to the non-movant and draw all reasonable

inferences in the non-movant’s favor. Although “[c]redibility

11

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of a

12

judge . . . ruling on a motion for summary judgment,” the “mere

existence of a scintilla of evidence in support of the plaintiff’s position

13

[is] insufficient. . . .” “Where the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party, there is no

14

genuine issue for trial.”

15 City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049-50 (9th Cir. 2014).

16 B. Time Bar

17

As noted above, Costco argues that, at a minimum, it is entitled to partial summary judgment

18 because Ms. Sasaki’s disparate treatment claim as well as her retaliation claim are partially time

19 barred. The Court addresses each claim separately.

20

1. Disparate Treatment Claim

21

With respect to disparate treatment, Ms. Sasaki filed a charge of discrimination with the

22 DFEH on or about March 1, 2005. According to Costco, this means that her disparate treatment

23 claim is viable only for events that took place 300 days prior to that date – i.e., May 5, 2004. See 42

24 U.S.C. § 2000e-5(e)(1) (addressing time for filing administrative charge – either 180 or 300 days

25 after the alleged unlawful employment practice); see also Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th

26

27

2 Both parties have submitted evidence in conjunction with the summary judgment motion. Costco, in its opposition brief, has objected to some of Ms. Sasaki’s evidence. See Reply at 14-15.

28

The objections are effectively moot because the Court has not relied on any of the challenged evidence to make its rulings.

2

United States District Court For the Northern District of California

1 Cir. 1990) (noting that § 2000e-5(e) provides for a “judicial statute of limitations . . . , generally

2 barring subsequent suit on discriminatory incidents occurring prior to the 180-day [or 300-day]

3 period”). “[A]ny claim preceding May 5, 2004 . . . is time-barred.” Mot. at 16 (emphasis added).

4

Ms. Sasaki disagrees. According to Ms. Sasaki, she “can challenge any GM promotion filed

5 on or after January 3, 2002” because Shirley Rae Ellis, the original named plaintiff who initiated the

6 lawsuit, filed an administrative complaint 300 days after that date. Opp’n at 22 (stating that Ms.

7 Ellis’s administrative complaint was filed on October 30, 2002). In other words, Ms. Sasaki’s

8 contention is that she can “piggyback” on Ms. Ellis’s original charge.

9

The Court agrees with Ms. Sasaki. As Ms. Sasaki points out, in Harris v. County of Orange,

10 682 F.3d 1126 (9th Cir. 2012), the Ninth Circuit held that, where one class member has timely filed

11 an administrative complaint, then other members of that class may “piggyback” on that

12 administrative complaint, thereby satisfying the exhaustion requirement. Class members are not

13 each required to exhaust their individual claims.3 See id. at 1135-36. And as Ms. Sasaki contends,

14 the instant case is analogous to Harris: Ms. Ellis filed a class action and she timely filed an

15 administrative complaint; therefore, other members of the class, including Ms. Sasaki, may

16 piggyback on Ms. Ellis’s administrative complaint.

17

In response, Costco argues that Harris is distinguishable because, there, the other class

18 members who sought to piggyback did not file their own administrative complaints and, here, Ms.

19 Sasaki did. As an initial matter, this argument would seem to create an ironic result: a class

20 member who does nothing would be in a better position than one who exercises diligence and files

21 an administrative claim.

22

Nonetheless, as Costco points out, some courts have still held that “[a]n individual who has

23 previously filed an EEOC charge cannot piggyback onto someone else’s EEOC charge.” Holowecki

24

25

3 “This single filing rule is based on the observation that it would be duplicative and wasteful

26

for complainants with similar grievances to have to file identical notices of intent to sue with a governmental agency.” Harris, 682 F.3d at 1136.

27

To be sure, as discussed infra, some courts have found that where a claimant files an

28

administrative claim but then abandons it, he/she will be barred from bringing suit even when a class member who took no action is not.

3

United States District Court For the Northern District of California

1 v. Federal Express Corp., 440 F.3d 558, 664 (2d Cir. 2006). But notably those courts that have so

2 held have defended this conclusion for the following reason: “As noted by other Circuit Courts of

3 Appeals, allowing an individual who has previously filed a charge to abandon that charge and

4 piggyback onto the charges of another individual would too often frustrate the EEOC’s statutorily-

5 mandated efforts to resolve an individual charge through information conciliation.” Id. (emphasis

6 added); see also Levy v. United States Gen. Acct’g Office, 175 F.3d 254, 255 (2d Cir. 1999) (cited in

7 Holowecki in support of the above quotation; concluding that plaintiffs’ claims were time barred

8 because they timely filed charges of discrimination with the General Accounting Office but, after

9 being notified of the Office’s final decision on their claims, they did not file a complaint within

10 ninety days of that final decision); Gitlitz v. Compagnie Nationale Air. Fr., 129 F.3d 554, 557 (5th

11 Cir. 1997) (indicating that a plaintiff who files an administrative charge and receives a right-to-sue

12 letter “‘must file suit within ninety days after receiving that letter to preserve that cause of action’”);

13 Anderson v. Unisys Corp., 47 F.3d 302, 308-09 (8th Cir. 1995) (noting the same). In other words,

14 critical to the courts’ assessment was the abandonment of the administrative complaint. Abandoning

15 a filed claim could mislead the defendant.

16

Here, while Ms. Sasaki did file her own administrative complaint, it cannot be said that she

17 “abandoned” this charge. What happened in the instant case was that Ms. Sasaki filed her

18 administrative complaint (on March 1, 2005) and then she joined the Ellis lawsuit (on March 23,

19 2005), see Docket No. 83-1 (second amended complaint), before she ever received notice of her

20 right to sue. See Larkin Decl., Ex. 53-1030 (notice of right to sue, issued on June 2, 2005). When

21 Ms. Sasaki did receive her right-to-sue letter, she did not file a lawsuit but, presumably, that was

22 because she had already joined the Ellis action and thus initiating a new lawsuit was not necessary.

23 Thus, the reasoning underlying Holowecki and similar cases have no application in the instant case.

24

The Ninth Circuit decision, Inda v. United Air Lines, Inc., 565 F.2d 554 (9th Cir. 1977), also

25 provides no support for Costco’s position. The case is easily distinguishable on its facts. First, the

26 plaintiffs in Inda who sought to piggyback never filed their own administrative complaints. Second,

27 the main issue in Inda was whether the plaintiffs could piggyback on an administrative complaint

28 that had been made by another individual who had filed a separate lawsuit. See id. at 559. Notably,

4

United States District Court For the Northern District of California

1 the Harris court went out of its way to distinguish Inda on this basis. See Harris, 682 F.3d at 1136-

2 37 (stating that “Inda should be limited to its specific facts – ‘where a plaintiff sought to rely on an

3 administrative charge [i.e., complaint] of an individual employee in a separate action”). That is not

4 the situation in the case at bar. Here, Ms. Sasaki and Ms. Ellis are clearly part of the same lawsuit.

5

Accordingly, the Court rejects Costco’s contention that Ms. Sasaki’s claim for disparate

6 treatment is partially time barred.4

7

2. Retaliation

8

Similar to above, Costco also argues that Ms. Sasaki’s claim for retaliation is partially time

9 barred. Costco points out that, on March 3, 2013, Ms. Sasaki filed an administrative complaint with

10 the DFEH alleging retaliation. See Larkin Decl., Ex. 56 (DFEH charge of discrimination). Thus,

11 according to Costco, any retaliation claim preceding May 7, 2012 (i.e., 300 days before March 3,

12 2013) is time barred.

13

Ms. Sasaki disagrees. She argues that Costco is considering only her administrative

14 complaint for retaliation but not her administrative complaint for disparate treatment. According to

15 Ms. Sasaki, because her retaliation claim is reasonably related to her claim for disparate treatment,

16 the operative date for her retaliation claim can be tied to her administrative complaint for disparate

17 treatment – i.e., May 4, 2004 (which is 300 days before she filed her administrative complaint

18 alleging disparate treatment). See Opp’n at 24 (arguing that the issue is not how far back her

19 administrative complaint for retaliation can go but rather how far forward her administrative

20 complaint for disparate treatment and related claims can go).5 Ms. Sasaki’s argument is predicated

21 on case law holding that “[a]llegations of discrimination not included in the plaintiff’s administrative

22 charge” may still be considered by a court so long as “the new claims are like or reasonably related

23 to the allegations contained in the [administrative] charge.” B.K.B. v. Maui Police Dep’t, 276 F.3d

24 1091, 1100 (9th Cir. 2002) (internal quotation marks omitted); see also Lyons v. England, 307 F.3d

25

26

4 The Court notes, however, that Ms. Sasaki has conceded that any claim based on a failure to promote pre-dating January 3, 2002, is time barred.

27

5 According to Ms. Sasaki, even though her administrative complaint for disparate treatment

28

reaches forward to cover her retaliation claim, she decided to file an administrative complaint for retaliation “as a precautionary measure.” Opp’n at 25 n.20.

5

United States District Court For the Northern District of California

1 1092, 1104 (9th Cir. 2002); Vasquez v. County of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2003).6

2 This rule is based on the rationale that “forcing an employee to begin the administrative process

3 anew after additional occurrences of [related] discrimination in order to have them considered by the

4 agency and the courts ‘would erect a needless procedural barrier.’” Anderson v. Reno, 190 F.3d 930,

5 938 (9th Cir. 1999), overruled on other grounds by Morgan, 536 U.S. at 101; see also Sitar v. Ind.

6 DOT, 344 F.3d 720, 726 (7th Cir. 2003) (stating that, “[n]ormally, retaliation, sex discrimination,

7 and sexual harassment charges are not ‘like or reasonably related’ to one another to permit an EEOC

8 charge of one type of wrong to support a subsequent civil suit for another” but “[t]hose different

9 claims may be linked . . . where they are ‘so related and intertwined in time, people, and substance

10 that to ignore that relationship for a strict and technical application of the rule would subvert the

11 liberal remedial purposes of the Act’”). Applying the rule, several courts – including the Ninth

12 Circuit – have indicated or held that the reasonably related rule is satisfied where a plaintiff claims

13 retaliation because she filed an administrative complaint alleging discrimination – i.e., in such a

14 circumstance, the retaliation claim is sufficiently related to the discrimination charge so as to obviate

15 the filing of a new and separate administrative complaint for retaliation. See, e.g., Vasquez, 349

16 F.3d at 645-46 (finding exhaustion requirement satisfied where “[plaintiff] claims that his transfer

17 out of [the] cottage and Berglund’s harassment were in retaliation for the grievance he filed [for

18 discrimination]”); Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1030 (7th Cir. 2013) (noting

19 that “[w]e have held for practical reasons, to avoid futile procedural technicalities and endless loops

20 of charge/retaliation/charge/retaliation, etc., that a plaintiff who alleges retaliation for having filed a

21

22

6 Two circuit courts appear to have rejected the “reasonably related” test, particularly in the

23

wake of the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). See, e.g., Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851(8th Cir. 2012)

24

(“reject[ing] [the plaintiff’s] contention that retaliation claims arising from a charge filed with the EEOC are excepted from the statutory exhaustion requirement” because Morgan instructs that

25

statutory text must be followed, “Title VII requires that a complainant must file a charge with the EEOC . . . ‘after the alleged unlawful employment practice occurred,’” and “[t]he use of the definite

26

article shows that the complainant must file a charge with respect to each alleged unlawful employment practice”) (emphasis in original); see also Martinez v. Potter, 347 F.3d 1208, 1210-11

27

(10th Cir. 2003) (relying on Morgan to conclude that “each discrete incident of [discriminatory or retaliatory] treatment constitutes its own ‘unlawful employment practice’ for which administrative

28

remedies must be exhausted”; adding that this rule applies even “to discrete claims based on incidents occurring after the filing of Plaintiff’s EEO complaint”) (emphasis in original).

6

United States District Court For the Northern District of California

1 charge with the EEOC need not file a second EEOC charge to sue for that retaliation”); Jones v.

2 Calvert Group, Ltd., 551 F.3d 297, 302 (4th Cir. 2009) (stating that “a claim of ‘retaliation for the

3 filing of an EEOC charge as discrimination’ is indeed ‘like or reasonably related to and growing out

4 of such allegations’”); Franceschi v. U.S. Dep’t of Veterans Affairs, 514 F.3d 81, 86 (1st Cir. 2008)

5 (stating that a claim of retaliation for filing an administrative charge with the EEOC “may ordinarily

6 be bootstrapped onto the other Title VII claim or claims arising out of the administrative charge and

7 considered by the district court, even though it has not been put through the administrative

8 process”); Eberle v. Gonzales, 240 Fed. Appx. 622, 628 (5th Cir. 2007) (endorsing prior precedent

9 holding that “‘it is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a

10 retaliation claim growing out of an earlier charge’”); Butts v. New York Department of Housing

11 Preservation & Development, 990 F.2d 1397, 1402 (2d Cir. 1993) (stating that “[t]he second type of

12 ‘reasonably related’ claim is one alleging retaliation by an employer against an employee for filing

13 an EEOC charge”; explaining that “the EEOC charge requirement is not excused because the new

14 claims likely would have been discovered by the EEOC investigation” – “[r]ather, in such situations,

15 we have relaxed the exhaustion requirement based on the close connection of the retaliatory act to

16 both the initial discriminatory conduct and the filing of the charge itself”).

17

While the Court acknowledges the above case law, it ultimately does not find in Ms. Sasaki’s

18 favor. Although Ms. Sasaki has claimed retaliation in part because she filed her DFEH charge for

19 disparate treatment, there are unique circumstances in the case at hand that counsel against Ms.

20 Sasaki being able to hitch her retaliation claim to her administrative complaint for disparate

21 treatment. More specifically, after Ms. Sasaki filed her administrative complaint for disparate

22 treatment on or about March 1, 2005, she gave no indication for approximately eight years that she

23 intended to follow up on or pursue a retaliation claim. For instance, when Ms. Sasaki joined the

24 pending action on March 23, 2005, she did not assert as a cause of action any claim for retaliation –

25 this in contrast to Ms. Ellis who did assert a claim for retaliation in the second amended complaint

26 that Ms. Sasaki joined, see Docket No. 83 (second amended complaint) and who had been asserting

27 a retaliation claim since the inception of the case. See Docket No. 1 (complaint). Also, it is

28 undisputed that, when Ms. Sasaki engaged with Ms. Vadney in 2005, see Docket No. 852 (Def.’s

7

United States District Court For the Northern District of California

1 Supp. Br. at 6), Costco’s HR manager, and Ms. Vadney told Ms. Sasaki to bring her any concerns to

2 her attention, Ms. Sasaki never mentioned retaliation – indeed, she did not bring any additional

3 concerns to Ms. Vadney at all. See Kadue Decl., Ex. G (Sasaki Depo. at 268); see also Kadue Reply

4 Decl., Ex. L (Vadney Depo. at 268) (“I asked [Ms. Sasaki] if there were any new concerns that we

5 hadn’t already talked about, and she said no.”). Even in March 2012, when the third amended

6 complaint was filed in this case, Ms. Sasaki still failed to raise a claim for retaliation – again, even

7 though Ms. Ellis was asserting such a claim. It was not until March 2013 that Ms. Sasaki for the

8 first time raised a claim of retaliation: She finally filed an administrative complaint for retaliation

9 specifically and followed up with a claim for retaliation in the fourth amended complaint. See

10 Docket No. 718 (fourth amended complaint).

11

One purpose of an administrative charge is to “giv[e] the charged party notice of the claim

12 and narrow[] the issues for prompt adjudication and decision.” B.K.B., 276 F.3d at 1099 (emphasis

13 added; internal quotation marks omitted). Even if Ms. Sasaki could have – at one point – fairly

14 argued that a separate administrative complaint for retaliation would have been a needless

15 procedural barrier (i.e., in light of her administrative complaint for disparate treatment), she

16 effectively waived the benefit of the “reasonably related” rule when she failed to follow up on any

17 retaliation claim for approximately eight years. The passage of this length of time, if anything,

18 would well have lulled Costco into thinking that no retaliation claim from her would be

19 forthcoming. In some ways, the conduct here had the same effect of the plaintiffs’ effective

20 abandonment of their claims in Holowecki, 440 F.3d at 564-65.

21

While Ms. Sasaki relies on Anderson, 190 F.3d at 930, to support her position, the case is

22 distinguishable. In Anderson, it appears that, from the outset, the plaintiff had alleged in her lawsuit

23 a claim for retaliation that took place in 1994 and it was that incident that served as the “reasonably

24 related” hook for a second claim of retaliation that took place in 1997 (after the lawsuit had been

25 filed). See Anderson v. Reno, No. C-97-0747-VRW, 1998 U.S. Dist. LEXIS 9311, at *8-9 (N.D.

26 Cal. June 19, 1998) (discussing relevant underlying events); Anderson, 190 F.3d at 938 (stating that

27 “the 1997 retaliation is a direct continuation of conduct that had been properly exhausted and

28 specifically concerns it[;] [u]nder these circumstances, we find no compelling reason to require yet

8

United States District Court For the Northern District of California

1 another round of administrative activity and the filing of a separate lawsuit, when a lawsuit dealing

2 with these directly related issues was already underway”) (emphasis in original). Jones v. Calvert

3 Group, Ltd., 551 F.3d 297 (4th Cir. 2009), is also distinguishable as it involved the issue of whether

4 a second claim of retaliation could be deemed reasonably related to a claim for retaliation that had

5 been exhausted. See id. at 299. In both Anderson and Jones, the defendant was put on clear notice

6 of a retaliation claim by virtue of the first act of alleged retaliation.

7

Ms. Sasaki protests that, even if she cannot rely on her administrative complaint for disparate

8 treatment and instead were limited to her administrative complaint for retaliation, she could still

9 reach back further than May 7, 2012, because she has alleged a continuing violation based on a

10 pattern or practice. See Opp’n at 25 (arguing that, “to the extent Costco asks the Court to look

11 backward from Sasaki’s 2013 charge of retaliation, she can challenge retaliatory conduct that was

12 part of Costco’s ongoing practice”) (emphasis in original). Ms. Sasaki acknowledges that, in

13 National Railroad Passenger Corp. v. Morgan, 536 U.S. at 101, the Supreme Court put limits on the

14 continuing violations theory. More specifically, the Supreme Court held that “discrete

15 discriminatory acts are not actionable if time barred, even when they are related to acts alleged in

16 timely filed charges.” Id. at 113. The Court went on to note that “[d]iscrete acts such as

17 termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each

18 incident of discrimination and each retaliatory adverse employment decision constitutes a separate

19 actionable ‘unlawful employment practice.’” Id. at 114.

20

However, Ms. Sasaki asserts that Morgan addressed only whether a plaintiff can establish a

21 continuing violation by showing a series of related acts, one or more of which are within the

22 limitations period. Morgan left open, in other words, whether a plaintiff can establish a continuing

23 violation by showing a systematic policy or practice of discrimination that operated, in part, within

24 the limitations period. See id. at 107.

25

Ms. Sasaki is correct with respect to her interpretation of Morgan. Indeed, in a footnote, the

26 Morgan Court expressly stated that “[w]e have no occasion here to consider the timely filing

27 question with respect to ‘pattern-or-practice’ claims brought by private litigants as none are at issue

28 here.” Id. at 115 n.9. Moreover, Ms. Sasaki is correct that, since Morgan, the Ninth Circuit has not

9

United States District Court For the Northern District of California

1 foreclosed a continuing violations theory based on a pattern or practice. See Lyons, 307 F.3d at

2 1107 n.8 (stating that “the question of how Title VII’s filing deadlines should be applied to

3 pattern-or-practice claims based on a series of discriminatory acts, some of which occurred outside

4 the limitations period, has been left unanswered by the Court, and we do not consider it here”). In

5 Morgan, the Supreme Court explained that a pattern-or-practice claim constitutes a claim where

6 there is a “systematic policy or practice of discrimination” – i.e., a “systemic violation.” Morgan,

7 536 U.S. at 105, 107. And as indicated by the Ninth Circuit opinion which gave rise to the Morgan

8 decision, “[s]ystemic violations involve ‘demonstrating a company wide policy or practice’ and

9 most often occur in matters of placement or promotion.” Morgan v. AMTRAK, 232 F.3d 1008, 1016

10 (9th Cir. 2000); see also Cherosky v. Henderson, 330 F.3d 1243, 1247 (9th Cir. 2003) (stating that a

11 pattern-or-practice claim is based on “discriminatory conduct that is widespread throughout a

12 company or that is a routine and regular part of the workplace”).

13

That being said, there is still a fundamental problem with Ms. Sasaki’s position. More

14 specifically, even viewing the evidence in the light most favorable to Ms. Sasaki, there is nothing

15 more than a scintilla of evidence to support a pattern-or-practice claim here – especially taking into

16 account that what Ms. Sasaki must show is a pattern or practice of retaliation for complaining about

17 gender discrimination rather than a pattern or practice of disparate treatment. At best, Ms. Sasaki

18 has shown that she was retaliated against for her complaining about gender discrimination but that is

19 insufficient to show a widespread practice throughout Costco.

20

Accordingly, the Court agrees with Costco that Ms. Sasaki’s claim for retaliation is time

21 barred. Only those failures to promote that took place 300 days prior to her administrative

22 complaint for retaliation (and not disparate treatment) are actionable.

23 C. Disparate Treatment Claim

24

Costco asks not only for partial summary judgment based on a time bar, but also for

25 summary judgment on the merits with respect to the entirety of Ms. Sasaki’s claims for disparate

26 treatment and retaliation. As above, the Court addresses each claim separately.

27

“In responding to a summary judgment motion in a Title VII disparate treatment case, a

28 plaintiff may produce direct or circumstantial evidence demonstrating that a discriminatory reason

10

United States District Court For the Northern District of California

1 more likely than not motivated the defendant’s decision, or alternatively may establish a prima facie

2 case under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

3 792 (1973).” Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005); see

4 also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (stating that, “although the

5 McDonnell Douglas burden shifting framework is a useful ‘tool to assist plaintiffs at the summary

6 judgment stage so that they may reach trial,’ ‘nothing compels the parties to invoke the McDonnell

7 Douglas presumption’”).

8

Under the McDonnell Douglas burden-shifting framework,

9

an employee challenging an adverse employment action has the initial

burden of establishing a prima facie case of discrimination . . . . The

10

burden then shifts to the employer to provide a legitimate,

nondiscriminatory . . . reason for the adverse employment action. If

11

the employer does so, then the burden shifts back to the employee to

prove that the reason given by the employer was pretextual.

12

13 Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014).

14

A plaintiff can make out a prima facie case of discrimination by showing that “(1) [she]

15 belongs to a protected class; (2) [she] was qualified for the position; (3) [she] was subject to an

16 adverse employment action; and (4) similarly situated individuals outside [her] protected class were

17 treated more favorably.” Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000).

18

A plaintiff can establish pretext “‘either directly by persuading the court that a

19 discriminatory reason more likely motivated the employer or indirectly by showing that the

20 employer’s proffered explanation is unworthy of credence.’” Id. at 1124. While the Ninth Circuit

21 has held that, “[w]here evidence of pretext is circumstantial, rather than direct, the plaintiff must

22 produce ‘specific’ and ‘substantial’ facts to create a triable issue of pretext,” it has also noted that

23 “[t]hat standard is ‘tempered’ by our observation that a plaintiff’s burden to raise a triable issue of

24 pretext is ‘hardly an onerous one.’” Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th

25 Cir. 2011).

26

1. “Abandoned” Claims

27

In its reply brief, Costco contends that the Court should dismiss at least eighteen of Ms.

28 Sasaki’s failure-to-promote claims because, as to these promotions, she “offer[ed] no evidence at

11

United States District Court For the Northern District of California

1 all.” Reply at 3 & n.6. This argument has no merit. Ms. Sasaki has offered evidence to support a

2 prima facie case and further has offered evidence to support pretext on the part of Costco. See Part

3 II.C.2, infra. That Ms. Sasaki did not address pretext on a promotion-by-promotion basis is not

4 dispositive, particularly as Costco itself did not structure its opening brief in that manner.7

5

Costco also points out that, for several promotions, Ms. Sasaki questions the qualifications of

6 the men who were promoted by relying (either entirely or in part) on their post-promotion

7 performance. According to Costco, “[p]ost-promotion evidence is irrelevant as to Costco’s motive

8 at the time of the promotion.” Reply at 4 (emphasis added). This argument is problematic as well.

9 While, as a general matter, post-promotion performance may not be as probative as pre-promotion

10 performance, it cannot be said – at least as a blanket proposition – that post-promotion performance

11 is completely irrelevant. Furthermore, Costco fails to take into account that Ms. Sasaki is not

12 required to show that a man who was promoted was not as qualified as her. That is one way of

13 showing discrimination and/or pretext, but not the only way.

14

2. Nondiscriminatory Reasons for Denial of Promotion and Pretext

15

The main thrust of Costco’s argument is that it is entitled to summary judgment on the

16 disparate treatment claim because there is no genuine dispute that Costco denied Ms. Sasaki

17 promotion for nondiscriminatory, nonpretextual reasons – i.e., because she was not qualified.8

18

Contrary to what Costco contends, there is a genuine dispute of material fact as to whether

19 Costco’s assessment that Ms. Sasaki was not qualified was just a pretext. For example, there is

20 evidence as follows:

21

22

23

7 This is not to say that, at trial, Ms. Sasaki will necessarily be able to prevail at trial without

24 evaluating each promotion on an individual basis or at least a representative sampling.

25

8 At the hearing, Costco conceded that Ms. Sasaki’s alleged lack of qualifications was relevant at steps two and three of McDonnell Douglas, and not step one, because it used subjective

26

(and not objective) criteria in assessing an AGM’s qualifications to be GM. See Nicholson v. Hyannis Air Serv., 580 F.3d 1116, 1123 (9th Cir. 2009) (holding that “subjective criteria should not

27

be considered in determining whether a plaintiff is ‘qualified’ for purposes of establishing a prima facie case under [step one of] McDonnell Douglas[;] [i]nstead, ‘[t]he qualifications that are most

28

appropriately considered at step one [of McDonnell Douglas] are those to which objective criteria can be applied’”).

12

United States District Court For the Northern District of California

1

•

Even though Ms. Sasaki has never formally been ranked “Ready Now,” the “Ready

2

Now”/”Not Ready” system was not implemented until 2007. Before that system was

3

implemented: (1) Ms. Sasaki got strong reviews from one of her GMs, Mr. Berry, and

4

a fairly strong review from another GM, Ms. Loveland); (2) Ms. Sasaki’s name

5

appeared on a 2000 “promotable list”; (3) every man on that list was eventually

6

promoted (either soon thereafter or a few years thereafter); and (4) Mr. Hoover

7

insinuated to Ms. Sasaki that she would be promoted within a few years if she were to

8

return to the Bay Area from Texas. After the “Ready Now”/”Not Ready” system was

9

implemented, Ms. Sasaki was ranked by one of her GMs, Mr. Carlisle, as “Ready

10

Soon,” and another GM, Mr. Thompson, also gave Ms. Sasaki fairly strong reviews.9

11

•

Even though Ms. Sasaki’s name did not appear on another Bay Area “promotable

12

list,” Mr. Hoover testified in his declaration that Costco “typically do[es] not

13

maintain formal lists of the persons identified as ready now for promotion to GM,

14

because the RVPs already know which AGMs are ready.” Hoover Decl. ¶ 28.

15

Moreover, Ms. Sasaki’s name may not have appeared on a Bay Area promotable list

16

in 2001 or 2002 because that was the time she was working outside the Bay Area

17

(i.e., in Texas). Finally, while Ms. Sasaki’s name did not appear on a Bay Area

18

promotable list after 2003, that may have been because her relationship with Mr.

19

Hoover had soured that year after the van tour incident and the subsequent internal

20

complaint that Ms. Sasaki made to Ms. Vadney, Costco’s HR manager.

21

•

Mr. Hoover told Ms. Sasaki that he was holding her to a higher standard. See Sasaki

22

Decl. ¶ 33.

23

•

Ms. Sasaki was asked to be acting GM on two different occasions. See Larkin Decl.,

24

Ex. 3 (Booth Depo. at 252).

25

26

9 The Court acknowledges that Ms. Loveland and Mr. Thompson appear to be more critical

27

of Ms. Sasaki in their declarations than in their contemporaneous evaluations. But at this stage, all inferences are to be made in Ms. Sasaki’s favor and a reasonable fact finder could discount the

28

declarations as litigation-informed testimony, thus crediting the more favorable performance evaluations.

13

United States District Court For the Northern District of California

1

•

Ms. Sasaki’s formal performance evaluations were arguably comparable (roughly

2

speaking) to at least some of the men who were promoted to the GM position (e.g.,

3

Mr. Christensen and Mr. Thompson). To the extent Ms. Sasaki’s formal performance

4

evaluations suggested that her performance was not particularly strong (instead of

5

just adequate), or was not as strong as some of the men who were promoted, multiple

6

Costco managers downplayed the significance of those evaluations. See, e.g., Larkin

7

Decl., Ex. 4 (Carlisle Depo. at 19-20) (testifying that the evaluations are not produced

8

for the benefit of the VPs above and that they are not provided to anyone else,

9

including the VPs; adding that the evaluations are a teaching tool and that the

10

numbers on the evaluations are not as important as the comments and conversations);

11

Larkin Decl., Ex. 16 (Thompson Depo at 38) (testifying that the fact that two goals of

12

a particular AGM had not been met did not necessarily reflect whether that AGM had

13

had a good year or a bad year); Larkin Decl., Ex. 9 (Hoover Depo. at 4, 49)

14

(testifying that numbers are an important part of an evaluation to maybe highlight an

15

employee’s area of strength or weakness but adding that he would not look at one

16

specific number and hold that employee accountable for that number; also testifying

17

that he did not look at performance evaluations to see whether there should be a

18

promotion); see also Larkin Decl., Ex. 16 (Thompson Depo. at 10) (testifying that,

19

from year to year, he was not really concerned with whether he received a 3 or a 4 in

20

a particular box from his manager).

21

•

Moreover, some of the evaluations of Ms. Sasaki (both formal and informal) might be

22

read as implicating gender stereotypes. See, e.g., Larkin Decl., Ex. 1 (Abadir Depo.

23

at 21) (stating that, “when I go to locations, pretty much, she’s nonexistent [–] I don’t

24

mean to say a wallflower [b]ut the problem is I think she’s happy to be behind the

25

scenes”); Larkin Decl., Ex. 1 (Abadir Depo. at 24) (stating that he would like to see

26

her “[b]e more aggressive”); Kadue Decl., Ex. D (Carlisle Depo. at 41) (stating that,

27

during warehouse walks, “my general assessment would be one of more laid-back

28

and sitting back and taking notes as opposed to leading”); Kadue Decl., Ex. D

14

United States District Court For the Northern District of California

1

(Carlisle Depo. at 156) (stating that “you’re asking the same question,

2

aggressiveness, sense of urgency, proactive, – you know, it’s – I mean, we’re talking

3

about the same thing”).

4

•

The qualifications of at least some of the men who were eventually promoted to the

5

GM positions are arguably questionable (e.g., Mr. Brazil).10

6

Because there is a genuine dispute regarding Ms. Sasaki’s qualifications, the Court denies

7 Costco summary judgment on the disparate treatment claim.

8 D. Retaliation Claim

9

As noted above, the thrust of Ms. Sasaki’s retaliation claim is that she was denied further

10 promotions after (1) making an internal complaint to Ms. Vadney (in August/September 2003); (2)

11 filing her DFEH charge for disparate treatment (on or about March 1, 2005); and (3) joining the Ellis

12 action (on March 23, 2005). Implicitly, Ms. Sasaki is also asserting that her continued participation

13 in the Ellis action has led to retaliation in the form of additional failures to promote. As discussed

14 above, part of the retaliation claim is time barred.

15

Costco presents three arguments as to why it is entitled to summary judgment on the

16 remaining part of Ms. Sasaki’s retaliation claim: (1) Ms. Sasaki simply “speculat[es] that a causal

17 connection exists” between her protected activity and the failure to promote, and “the attenuated

18 timing between her protected activity and any denial of promotion is insufficient to establish

19 causation,” Mot. at 22; (2) Ms. Sasaki was not the victim of retaliation since she was not qualified to

20 be promoted; and (3) Ms. Sasaki’s “protected activity, coming in 2003 and 2005, came after her

21 name had already disappeared from anything that could remotely qualify as a promotion list, and her

22 protected activity came after successive GMs – Loveland, Prideaux, Marteney, Carlisle – had seen

23 her in action and declined to rate her as promotable.” Mot. at 24.

24

For the reasons discussed above, there is a genuine dispute of material fact regarding Ms.

25 Sasaki’s qualifications, and therefore the Court rejects Costco’s second argument. As for Costco’s

26

27

10 Although Costco argues that Ms. Sasaki has engaged in “cherrypicking” – either ignoring

28

the overall review or looking at an evaluation when the man was not ranked “Ready Now” – that is an argument that is best made to the fact finder.

15

United States District Court For the Northern District of California

1 third argument, it is essentially the same as or at least derivative of the second argument. Also,

2 Costco ignores evidence that suggests Ms. Sasaki was being considered for a promotion in or around

3 2002 (i.e., Mr. Hoover’s discussion with Ms. Sasaki that led her to transfer back to the Bay Area).

4 See Larkin Decl., Ex. 13 (Sasaki Depo. at 103) (testifying that “[Mr. Hoover] said Denny Carlisle

5 was up for relocation soon and I looked – I was looking at one to two years on the outside before

6 being promoted”). The Court therefore focuses on Costco’s first argument – i.e., is there evidence

7 suggesting a causal connection between her protected activity and the failure to promote?

8

Given the Court’s ruling on the time-bar issue, there is a significant gap in time between

9 some of the protected activity and the actionable retaliation – e.g., for the protected activity that took

10 place in 2003 and 2005 and the retaliation that took place in 2012 and on. See generally Clark

11 County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (stating that “[t]he cases that accept mere

12 temporal proximity between an employer’s knowledge of protected activity and an adverse

13 employment action as sufficient evidence of causality to establish a prima facie case uniformly hold

14 that the temporal proximity must be ‘very close’”).11 Nevertheless, there is still sufficient temporal

15 proximity for the actionable retaliation in 2012 and thereafter because, during that time, Ms. Sasaki

16 was still an active participant in the Ellis action. Her protected activity was ongoing, and she relies

17 on evidence of retaliatory motive in addition to the sequence of events (i.e., temporal proximity).

18

That evidence is sufficient to create a genuine issue of material fact. For example, Mr.

19 Abadir (one of the RVPs and therefore one of the decision makers on promotions) testified at his

20 deposition as follows:

21

[W]hat I’ve learned from with Elaine [Sasaki] is that, as far as we’re

talking about the job, is that what she needs to do to go to the next

22

level. What I think is that if she really, you know, spent her energy

thinking about that, going to the next level, versus pursuing a lawsuit,

23

that you spend all that energy, maybe she’d be successful, because

she’s been tenacious in doing that. Why not spend the time – you

24

25

26

11 In Breeden, the Supreme Court stated that a twenty-month gap between the protected activity and adverse employment action suggested “by itself, no causality at all,” Breeden, 532 U.S.

27

at 274, and cited two circuit court cases in which even a three- or four-month gap was deemed insufficient. See id. (citing Richmond v. ONEOK, Inc., 120 F.3d 205 (10th Cir.1997) (3-month

28

period insufficient), and Hughes v. Derwinski, 967 F.2d 1168 (7th Cir.1992) (4-month period insufficient)).

16

United States District Court For the Northern District of California

1

know, spending on your job and your career and put energy into that.

So if she would kind of use that tenacity, fantastic.

2

3 Larkin Decl., Ex. 1 (Abadir Depo. at 55). Costco tries to characterize the statement as a stray

4 remark, but certainly a reasonable fact finder could infer that Mr. Abadir had a retaliatory animus

5 based on that remark.

6

There is also evidence suggesting a retaliatory animus on the part of Mr. Hoover, the SVP

7 for the Bay Area region whose approval or “blessing” is needed for a promotion (at least there is

8 evidence to support such). More specifically, when Ms. Vadney was investigating Ms. Sasaki’s

9 internal complaint, she interviewed Mr. Hoover. During the interview, Ms. Vadney questioned Mr.

10 Hoover about whether he had engaged in inappropriate conduct with respect to Ms. Sasaki. One of

11 Ms. Vadney’s questions had to do with an alleged conversation between Ms. Sasaki and Mr.

12 Hoover, during which Ms. Sasaki congratulated Mr. Hoover “for having 6 of 10 buildings on top in

13 executive membership.” Larkin Decl., Ex. 37 (CRE0166076).

14

Q: Did you respond “I heard you like it that way”? Then say

“that’s a good exit line” and hung up?

15

A: Absolutely Not! That’s disgusting. I would never say it. The

16

rest of that stuff – I could have said, but I would never say that.

I want her held accountable for that.

17

18 Larkin Decl., Ex. 37 (CRE0166076) (emphasis added). As above, Costco contends that the

19 statement was a stray remark, but a reasonable fact finder need not view it that way. Moreover, a

20 reasonable fact finder could see Mr. Hoover’s statement as going beyond holding Ms. Sasaki

21 accountable for that specific claim – i.e., as a statement that Ms. Sasaki should be held accountable

22 for her larger assertion that he had acted inappropriately with respect to her. A retaliatory animus on

23 the part of Mr. Hoover could also be inferred from the fact that, after the internal complaint, it

24 appears that Mr. Hoover has not engaged in any substantive conversation with Ms. Sasaki, including

25 about her performance even though he continued to be one of her superiors and one of the key

26 decision makers on promotions. See Larkin Decl., Ex. 10 (Hoover Depo. at 56) (“We have not met.

27 And I don’t know if it was 2003, but we have not met. You know, and, again, I didn’t initiate those

28 meetings. I’d be more than happy to meet with her.”); Larkin Decl., Ex. 10 (Hoover Depo. at 86) (“I

17

United States District Court For the Northern District of California

1 think there’s maybe been a conversation where it was short. I don’t remember, though. I mean,

2 nothing that was anywhere to the extent that – what was before that time frame.”). Although – as

3 Costco argues – a reasonable fact finder could view Mr. Hoover’s conduct as prudent given Ms.

4 Sasaki’s claim of inappropriate conduct, a reasonable fact finder could also take a different view,

5 i.e., that Mr. Hoover was freezing Ms. Sasaki out in retaliation.

6

The Court thus declines to dismiss that part of the retaliation claim that is not time barred.

7 E. Motion to Seal

8

Finally, there is a motion to file under seal that is pending with the Court in conjunction with

9 the summary judgment motion. The motion to file under seal concerns information about additional

10 complaints made by other women at Costco against Mr. Hoover (i.e., for inappropriate conduct).

11 Ms. Sasaki argues that this information should not be sealed; Costco argues that it should be.

12

As a preliminary matter, the Court addresses Costco’s contention that the Court should

13 evaluate the motion to seal under a “good cause” standard instead of the “compelling reasons”

14 standard because the documents at issue are not part of Costco’s motion for summary judgment but

15 rather are part of Ms. Sasaki’s opposition only. This argument lacks merit. Before the Court is a

16 dispositive motion; the compelling reason standard applies to all relevant documents that informs the

17 adjudication thereof. Costco cites no authority for the proposition that the standard applies to some

18 briefs and evidence but not others in the context of a dispositive motion. Indeed, Costco ignores the

19 broad language used by the Ninth Circuit in Kamakana v. City & County of Honolulu, 447 F.3d

20 1172, 1179 (9th Cir. 2006) (stating that “[t]he public policies that support the right of access to

21 dispositive motions, and related materials, do not apply with equal force to non-dispositive

22 materials”) (emphasis added). Costco also fails to give enough credit to the fact that Kamakana

23 ultimately placed a premium on “ensuring the ‘public’s understanding of the judicial process and of

24 significant public events.’” Id. That understanding requires access to arguments and evidence

25 submitted by both sides of the dispute.

26

“In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in disclosure

27 and justify sealing court records exist when such ‘court files might have become a vehicle for

28 improper purposes,’ such as the use of records to gratify private spite, promote public scandal,

18

United States District Court For the Northern District of California

1 circulate libelous statements, or release trade secrets.” Id. Contrary to what Costco suggests, the

2 information at issue is hardly so irrelevant that one could only infer that there is an improper purpose

3 in Ms. Sasaki tendering the information. Mr. Hoover’s views and attitudes toward women are

4 clearly relevant as he is one of the key decision makers identified by Ms. Sasaki as having a

5 discriminatory animus. See also id. (stating that “[t]he mere fact that he production of records may

6 lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without

7 more, compel the court to seal its records’”). While Costco fairly notes that Mr. Hoover is

8 technically not a party to this lawsuit, the bottom line is that he is a Costco agent and it is through

9 his alleged discriminatory animus (as well as the animus of other managers) that Ms. Sasaki is

10 seeking to hold Costco liable. The only true nonparties are the women who made the complaints

11 about Mr. Hoover, and therefore the Court shall protect the names of the women who made the

12 complaints but, otherwise, the documents shall be public information.

13

Accordingly, the Court GRANTS in part and DENIES in part the motion to seal. Ms.

14 Sasaki shall publicly file the documents at issue, with only the names of the women who made the

15 complaints redacted. The filing shall be made within three days of the date of this order.

16

II. CONCLUSION

17

For the foregoing reasons, the Court grants in part and denies in part both the motion for

18 summary judgment and the motion to seal. The following claims shall proceed to trial: (1) the

19 disparate treatment claim and (2) the retaliation claim, but only with respect to failures to promote

20 that took place 300 days prior to the DFEH charge for retaliation specifically (and not disparate

21 treatment).

22

This order disposes of Docket Nos. 814 and 833.

23

24

IT IS SO ORDERED.

25

26 Dated: May 22, 2015

27

_________________________

EDWARD M. CHEN

28

United States District Judge

19

 
 Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 1 of 65
ADRMOP,APPEAL,CLOSED,E−Filing,REFDIS,REFSET−JCS
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:04−cv−03341−EMC

Ellis v. Costco Wholesale Corporation Assigned to: Hon. Edward M. Chen Referred to: Magistrate Judge Joseph C. Spero Demand: $0 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 08/17/2004 Date Terminated: 07/28/2015 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Shirley Rae Ellis on behalf of herself and all others similarly situated

represented by Bill Lann Lee Lewis Feinberg Lee & Jackson, P.C. 476 9th Street Oakland, CA 94607 510−839−6824 Fax: 510−839−7839 Email: blee@creeclaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel M. Hutchinson Lieff Cabraser Heimann & Bernstein, LLP Embarcadero Center West 275 Battery Street, 29th Floor San Francisco, CA 94111−3339 (415) 956−1000 x2312 Fax: (415) 956−1008 Email: dhutchinson@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly M. Dermody Leiff Cabraser Heimann & Bernstein LLP 275 Battery Street, 29th Floor San Francisco, CA 94111−3339 415−956−1000 Fax: 415−956−1008 Email: kdermody@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Loren Schug Nichols Kaster LLP One Embarcadero Center Suite 720 San Francisco, CA 94111 415−277−7235 Fax: 415−277−7238 Email: rschug@impactfund.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brad Seligman Impact Fund 125 University Avenue Suite 102 Berkeley, CA 94710 510−845−3473 ext 304 Fax: 510−845−3654 Email: bseligman@impactfund.org

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 2 of 65
TERMINATED: 01/14/2013 ATTORNEY TO BE NOTICED
Elizabeth A. Lawrence Law Offices of Elizabeth A. Lawrence 1569 Solano Ave., # 456 Berkeley, CA 94707 415−272−4305 Email: ealawrencelaw@gmail.com ATTORNEY TO BE NOTICED
Eve Hedy Cervantez Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421−7151 Fax: 415−362−8064 Email: ecervantez@altshulerberzon.com ATTORNEY TO BE NOTICED
James M. Finberg Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: jfinberg@altshulerberzon.com ATTORNEY TO BE NOTICED
Jocelyn Dion Larkin Impact Fund 125 University Avenue Suite 102 Berkeley, CA 94710 510−845−3473 x306 Fax: 510−845−3654 Email: jlarkin@impactfund.org ATTORNEY TO BE NOTICED
Julia Campins Campins Benham−Baker, LLP 935 Moraga Road, Suite 200 Lafayette, CA 94549 415−373−5333 Fax: 415−373−5334 Email: julia@cbbllp.com ATTORNEY TO BE NOTICED
Karin A. Kramer Quinn Emanuel Urquhart & Sullivan 555 Twin dolphin Drive 5th Floor Redwood Shores, CA 94065 650−801−5000 Fax: 650−801−5100 Email: karinkramer@quinnemanuel.com TERMINATED: 10/02/2006 ATTORNEY TO BE NOTICED
Lexi Joy Hazam , Esq. Lieff Cabraser Heimann and Bernstein, LLP 275 Battery Street 29th Floor San Francisco, CA 94111−3339

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 3 of 65

415−956−1000 Fax: 415−956−1008 Email: lhazam@lchb.com TERMINATED: 10/16/2007 ATTORNEY TO BE NOTICED

Lindsay Polastri Nako Impact Fund 125 University Ave., Ste. 102 Berkeley, CA 94710 510−845−3473 ext. 307 Fax: 510−845−3654 Email: lnako@impactfund.org ATTORNEY TO BE NOTICED

Meredith Anne Johnson Impact Fund 125 University Avenue Suite 102 Berkeley, CA 94710 510−845−3473 Email: mjohnson@impactfund.org ATTORNEY TO BE NOTICED

Nirej S. Sekhon Lieff, Cabraser, Heimann & Bernstein, LLP Embarcadero Center West 275 Battery Street 30th Floor San Francisco, CA 94111−3339 415−956−1000 Fax: 415−956−1008 Email: nsekhon@lchb.com TERMINATED: 04/11/2006 ATTORNEY TO BE NOTICED

Steve Stemerman Davis Cowell & Bowe 595 Market Street, Suite 800 San Francisco, CA 94105 415−597−7200 Fax: 415−597−7201 Email: stem@dcbsf.com ATTORNEY TO BE NOTICED

Plaintiff Leah Horstman

represented by Daniel M. Hutchinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jocelyn Dion Larkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 4 of 65

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Loren Schug (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Elizabeth A. Lawrence (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

Julia Campins (See above for address) ATTORNEY TO BE NOTICED

Lindsay Polastri Nako (See above for address) ATTORNEY TO BE NOTICED

Meredith Anne Johnson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Elaine Sasaki TERMINATED: 07/28/2015

represented by Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel M. Hutchinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Loren Schug (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth A. Lawrence (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 5 of 65

Jocelyn Dion Larkin (See above for address) ATTORNEY TO BE NOTICED
Lindsay Polastri Nako (See above for address) ATTORNEY TO BE NOTICED
Meredith Anne Johnson (See above for address) ATTORNEY TO BE NOTICED
Steve Stemerman (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Costco Wholesale Corporation

represented by Jocelyn Dion Larkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark P. Grajski Seyfarth Shaw 400 Capitol Mall, Suite 2350 Sacramento, CA 95814 916−448−0159 Email: mgrajski@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Annette Tyman 131 S. Dearborn St. Suite 2400 Chicago, IL 60603 (312) 460−5943 Fax: 312−460−7943 Email: atyman@seyfarth.com ATTORNEY TO BE NOTICED
David B. Ross , Seyfarth Shaw LLP 620 Eighth Avenue New York, NY 10018 (212) 218−5511 Fax: (212) 218−5526 Email: dross@seyfarth.com ATTORNEY TO BE NOTICED
Gerald L. Maatman , Jr. Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603−5577 312−460−5965 Fax: 312−460−7965 Email: gmaatman@seyfarth.com ATTORNEY TO BE NOTICED
Lorie E Almon Seyfarth Shaw LLP

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 6 of 65
620 Eighth Avenue New York, NY 10018 212−218−5517 Email: lalmon@seyfarth.com ATTORNEY TO BE NOTICED
Thomas J. Wybenga 999 Lake Drive Issaquah, WA 98027 (425) 313−6794 ATTORNEY TO BE NOTICED
Uma Chandrasekaran Seyfarth Shaw LLP 131 South Dearborn Suite 2400 Chicago, IL 60603 312−460−5000 Fax: 312−460−7000 Email: uchandrasekaran@seyfarth.com PRO HAC VICE ATTORNEY TO BE NOTICED
William Owen Kampf Law Office of William O. Kampf 12100 Wilshire Boulevard 8th Floor Los Angeles, CA 90025 310−943−0013 Fax: 310−494−9481 Email: william@woklaw.com ATTORNEY TO BE NOTICED
David D. Kadue Seyfarth Shaw LLP 2029 Century Park East Suite 3500 Los Angeles, CA 90067 310−201−5211 Fax: 310−201−5219 Email: dkadue@seyfarth.com ATTORNEY TO BE NOTICED

Date Filed 08/17/2004
08/17/2004 08/17/2004 08/17/2004 09/13/2004

# Docket Text
1 CLASS ACTION COMPLAINT; demand for jury trial against Costco Wholesale Corporation (Filing fee $ 150.00, receipt number 3363059.). Filed by Shirley "Rae" Ellis. (gba, COURT STAFF) (Filed on 8/17/2004) Additional attachment(s) added on 8/18/2004 (gba, COURT STAFF). (Additional attachment(s) added on 10/28/2015: # 1 Civil Cover Sheet) (slhS, COURT STAFF). (Entered: 08/17/2004)
2 ADR SCHEDULING ORDER: Case Management Statement due by 12/13/2004. Case Management Conference set for 12/20/2004 04:00 PM. (Attachments: # 1 Standing Order)(gba, COURT STAFF) (Filed on 8/17/2004) (Entered: 08/17/2004)
Summons Issued as to Costco Wholesale Corporation. (gba, COURT STAFF) (Filed on 8/17/2004) (Entered: 08/17/2004)
CASE DESIGNATED for Electronic Filing. (gba, COURT STAFF) (Filed on 8/17/2004) (Entered: 08/17/2004)
3 WAIVER OF SERVICE Returned Executed filed by Shirley "Rae" Ellis. Service waived by Costco Wholesale Corporation waiver sent on 8/19/2004, answer due 10/18/2004. (Sekhon, Nirej) (Filed on 9/13/2004) (Entered: 09/13/2004)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 7 of 65

09/13/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004

4 AFFIDAVIT of Service for 1) Order setting intial case management conf., 2) Form for joint case management conference, 3) Notice of availability of Magis. Judge, 4) Stip. & proposed order selecting ADR, 5) Dispute resolution handbook, 6) ECF handoout served on David Kadue on 8/19/2004, filed by Shirley "Rae" Ellis. (Sekhon, Nirej) (Filed on 9/13/2004) (Entered: 09/13/2004)
5 Defendant Costco Wholesale Corporation's ANSWER to Complaint of Plaintiff by Costco Wholesale Corporation. (Kadue, David) (Filed on 10/15/2004) (Entered: 10/15/2004)
6 MOTION to Transfer Case Under 28 U.S.C. Section 1404(a) filed by Costco Wholesale Corporation. Motion Hearing set for 11/29/2004 02:00 PM. (Kadue, David) (Filed on 10/15/2004) (Entered: 10/15/2004)
7 6 Proposed Order Granting Defendant's Motion to Transfer Venue Under 28 U.S.C. Section 1404(a) filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/26/2004 (gba, COURT STAFF). (Entered: 10/15/2004)
8 *** FILED IN ERROR. PLEASE SEE DOCKET # 32 . *** Declaration of Amy C. Chang in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
9 *** FILED IN ERROR. PLEASE SEE DOCKET # 33 . *** Declaration of David D. Kadue in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
10 *** FILED IN ERROR. PLEASE SEE DOCKET # 34 . *** Declaration of Ron Vachris in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
11 *** FILED IN ERROR. PLEASE SEE DOCKET # 35 . *** Declaration of Evelyn Boyd in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
12 *** FILED IN ERROR. PLEASE SEE DOCKET # 36 . *** Declaration of Maria Buenrrostro in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
13 *** FILED IN ERROR. PLEASE SEE DOCKET # 37 . *** Declaration of Kirsten Deboer in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
14 *** FILED IN ERROR. PLEASE SEE DOCKET # 38 . *** Declaration of Donna Groghan in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
15 *** FILED IN ERROR. PLEASE SEE DOCKET # 39 . *** Declaration of Sarah Hopkins in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 8 of 65

10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004

16 *** FILED IN ERROR. PLEASE SEE DOCKET # 40 . *** Declaration of Roberta Jungles in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
17 *** FILED IN ERROR. PLEASE SEE DOCKET # 41 . *** Declaration of Lance Levandowski in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
18 *** FILED IN ERROR. PLEASE SEE DOCKET # 42 . *** Declaration of Samantha Nieto in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
19 *** FILED IN ERROR. PLEASE SEE DOCKET # 43 . *** Declaration of Linda Ouch in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
20 *** FILED IN ERROR. PLEASE SEE DOCKET # 44 . *** Declaration of Mike Pearce in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
21 *** FILED IN ERROR. PLEASE SEE DOCKET # 45 . *** Declaration of Ruth Ann Phillips in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
22 *** FILED IN ERROR. PLEASE SEE DOCKET # 46 . *** Declaration of Cheryl Prai in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
23 *** FILED IN ERROR. PLEASE SEE DOCKET # 47 . *** Declaration of Katy Price in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
24 *** FILED IN ERROR. PLEASE SEE DOCKET # 48 . *** Declaration of Yvonne Reyes in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
25 *** FILED IN ERROR. PLEASE SEE DOCKET # 49 . *** Declaration of Debbie Schneider in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
26 *** FILED IN ERROR. PLEASE SEE DOCKET # 50 . *** Declaration of Scott Tenbarge in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
27 *** FILED IN ERROR. PLEASE SEE DOCKET # 51 . *** Declaration of Tiffany Tollefson in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 9 of 65

10/15/2004
10/15/2004
10/15/2004 10/15/2004
10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004

28 *** FILED IN ERROR. PLEASE SEE DOCKET # 52 . *** Declaration of Jenny Thurman in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
29 *** FILED IN ERROR. PLEASE SEE DOCKET # 53 . *** Declaration of Tammy Walley in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
30 *** FILED IN ERROR. PLEASE SEE DOCKET # 54 . *** Declaration of Gaylon in Support of 6 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
31 *** FILED IN ERROR. PLEASE SEE DOCKET # 55 . *** EXHIBITS re 6 Judicial Statistics in Support of Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/15/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/15/2004)
32 Declaration of Amy C. Chang in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #8 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
33 Declaration of David D. Kadue in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #9 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
34 Declaration of Ron Vachris in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #10 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
35 Declaration of Evelyn Boyd in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #11 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
36 Declaration of Maria Buenrrostro in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #12 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
37 Declaration of Kirsten Deboer in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #13 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
38 Declaration of Donna Groghan in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #14 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
39 Declaration of Sarah Hopkins in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #15 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
40 Declaration of Roberta Jungles in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #16 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
41 Declaration of Lance Levandowski in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #17 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
42 Declaration of Samantha Nieto in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #18 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
43 Declaration of Linda Ouch in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #19 filed by Costco Wholesale Corporation. (Related

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 10 of 65

10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/19/2004 10/25/2004 10/28/2004 11/01/2004
11/01/2004

document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
44 Declaration of Mike Pearce in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #20 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
45 Declaration of Ruth Ann Phillips in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #21 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
46 Declaration of Cheryl Prai in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #22 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
47 Declaration of Katy Price in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #23 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
48 Declaration of Yvonne Reyes in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #24 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
49 Declaration of Debbie Schneider in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #25 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
50 Declaration of Scott Tenbarge in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #26 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
51 Declaration of Tiffany Tollefson in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #27 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
52 Declaration of Jenny Thurman in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #28 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
53 Declaration of Tammy Walley in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #29 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
54 Declaration of Gaylon Wamble in Support of 6 Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #30 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
55 EXHIBITS re 6 Judicial Statistics in Support of Defendant's Motion to Transfer Venue CORRECTION OF DOCKET #31 filed by Costco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 10/18/2004) (Entered: 10/18/2004)
56 DEMAND for Trial by Jury by Costco Wholesale Corporation. (Kadue, David) (Filed on 10/19/2004) (Entered: 10/19/2004)
57 MOTION for Pro Hac Vice admission of attorney Gerald L. Maatman, Jr. filed by Costco Wholesale Corporation. (gba, COURT STAFF) (Filed on 10/25/2004) (Entered: 10/25/2004)
58 STIPULATION and Proposed Order Re Filing of First Amended Complaint and Briefing Schedule by Costco Wholesale Corporation. (Attachments: # 1)(Kadue, David) (Filed on 10/28/2004) (Entered: 10/28/2004)
59 Supplemental Memorandum re First Amended Complaint, in support of defendant's motion to transfer venue 6 filed by Costco Wholesale Corporation. (Attachments: # 1)(Kadue, David) (Filed on 11/1/2004) Modified on 11/2/2004 (gba, COURT STAFF). Modified on 11/2/2004 (gba, COURT STAFF). (Entered: 11/01/2004)
60 Supplemental Declaration of David D. Kadue in Support of 59 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 59 ) (Kadue, David) (Filed on 11/1/2004) Modified on 11/2/2004 (gba, COURT STAFF).

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 11 of 65

11/01/2004 11/01/2004 11/02/2004 11/04/2004 11/12/2004
11/18/2004 12/01/2004 12/01/2004 12/01/2004
12/06/2004
12/06/2004 12/06/2004 12/08/2004 12/13/2004 12/13/2004 12/21/2004

(Entered: 11/01/2004)
61 Declaration of Fidel Cardoso in Support of 59 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 59 ) (Kadue, David) (Filed on 11/1/2004) (Entered: 11/01/2004)
62 Declaration of Nina Borgner in Support of 59 Defendant's Motion to Transfer Venue filed by Costco Wholesale Corporation. (Related document(s) 59 ) (Kadue, David) (Filed on 11/1/2004) (Entered: 11/01/2004)
63 STIPULATION AND ORDER re FILING OF FIRST AMENDED COMPLAINT AND BRIEFING SCHEDULE; Signed by Judge Marilyn Hall Patel on 10/29/2004. (awb, COURT−STAFF) (Filed on 11/2/2004) (Entered: 11/02/2004)
64 Answer to Amended Complaint by Costco Wholesale Corporation. (Kadue, David) (Filed on 11/4/2004) (Entered: 11/04/2004)
65 Memorandum in Opposition re 6 MOTION to Transfer Case Under 28 U.S.C. Section 1404(a) filed by Shirley "Rae" Ellis. (Attachments: # 1 Affidavit Declaration of Shirley "Rae" Ellis# 2 Affidavit Declaration of Brad Seligman# 3 Proposed Order)(Sekhon, Nirej) (Filed on 11/12/2004) (Entered: 11/12/2004)
66 Reply in Support of Defendant's Motion to Transfer Venue 6 filed byCostco Wholesale Corporation. (Kadue, David) (Filed on 11/18/2004) Modified on 11/19/2004 (gba, COURT STAFF). (Entered: 11/18/2004)
67 STIPULATION and Proposed Order selecting Private ADR by Costco Wholesale Corporation (Kadue, David) (Filed on 12/1/2004) (Entered: 12/01/2004)
68 STIPULATION and [Proposed] Protective Order Re Production of Confidential Information by Costco Wholesale Corporation. (Kadue, David) (Filed on 12/1/2004) (Entered: 12/01/2004)
69 Minute Entry: Motion Hearing held on 11/29/2004 before Judge Marilyn Hall Patel (Date Filed: 12/1/2004) re 6 MOTION to Transfer Case filed by Costco Wholesale Corporation; Motion deemed submitted after further discussion; Court to issue order; Counsel given one week to file supplemental briefing, with responses due one week thereafter. (Court Reporter Catherine Luciano.) (awb, COURT−STAFF) (Date Filed: 12/1/2004) (Entered: 12/01/2004)
70 MEMORANDUM in Support re 6 MOTION to Transfer Case Under 28 U.S.C. Section 1404(a) (Post Hearing Supplemental Memorandum) filed byCostco Wholesale Corporation. (Related document(s) 6 ) (Kadue, David) (Filed on 12/6/2004) (Entered: 12/06/2004)
71 Declaration of Ed Blewett in Support of 70 Memorandum in Support of Defendant's Motion to Transfer Venue filed byCostco Wholesale Corporation. (Related document(s) 70 ) (Kadue, David) (Filed on 12/6/2004) (Entered: 12/06/2004)
72 Declaration of Dennis Zook in Support of 70 Memorandum in Support of Defendant's Motion to Transfer Venue filed byCostco Wholesale Corporation. (Related document(s) 70 ) (Kadue, David) (Filed on 12/6/2004) (Entered: 12/06/2004)
73 STIPULATION AND PROTECTIVE ORDER (as modified by court): Signed by Judge Marilyn Hall Patel on 12/7/2004. (awb, COURT−STAFF) (Filed on 12/8/2004) (Entered: 12/08/2004)
74 Memorandum in Opposition re 6 MOTION to Transfer Case Under 28 U.S.C. Section 1404(a) Post Hearing Supplemental Opposition filed byShirley "Rae" Ellis. (Seligman, Brad) (Filed on 12/13/2004) (Entered: 12/13/2004)
75 JOINT CASE MANAGEMENT STATEMENT filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 12/13/2004) (Entered: 12/13/2004)
76 CLERK'S NOTICE: Case Management Conference reset for 2/14/2005 04:00 PM; A supplemental Case Management Statement due by 2/7/2005. (awb, COURT−STAFF) (Filed on 12/21/2004) (Entered: 12/21/2004)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 12 of 65

12/23/2004
01/06/2005 01/28/2005 02/07/2005 02/15/2005
03/17/2005 03/23/2005 04/05/2005 04/18/2005 04/18/2005
04/18/2005 04/18/2005 04/18/2005 04/18/2005

77 ORDER by Judge Marilyn Hall Patel denying without prejudice to its renewal after further discovery on the scope and geographic distribution of the proposed class, defendant's 6 Motion to Transfer Case (sp, COURT STAFF) (Filed on 12/23/2004) Additional attachment(s) added on 12/23/2004 (sp, COURT STAFF). (Entered: 12/23/2004)
78 JOINT CASE MANAGEMENT STATEMENT Venue Discovery Plan filed by Shirley "Rae" Ellis. (Seligman, Brad) (Filed on 1/6/2005) (Entered: 01/06/2005)
79 ORDER by Judge Marilyn Hall Patel granting 57 defendant's Motion for attorney Gerald L Maatman Jr to appear Pro Hac Vice (awb, COURT−STAFF) (Filed on 1/28/2005) (Entered: 01/28/2005)
80 JOINT CASE MANAGEMENT STATEMENT Supplemental filed by Shirley "Rae" Ellis. (Seligman, Brad) (Filed on 2/7/2005) (Entered: 02/07/2005)
81 Minute Entry: Further Case Management Conference held on 2/14/2005 before Judge Marilyn Hall Patel (Date Filed: 2/15/2005); Privilege logs to be completed by 3/1/2005; Depositions by plaintiffs set for 3/9/2005, 3/24/2005; Depositions of plaintiffs for the limited Venue issues allowed (and can be done telephonically or by video); Further supplemental briefing (simultaneous) to be filed by 4/18/2005; Supplemental responses to be filed by 5/2/2005; Further hearing on Venue set for 5/16/2005 at 2:00 pm; (Court Reporter Catherine Luciano.) (awb, COURT−STAFF) (Date Filed: 2/15/2005) (Entered: 02/15/2005)
82 TRANSCRIPT of Proceedings held on 2/14/05 before Judge Marilyn H. Patel. Court Reporter: Catherine Luciano. (gba, COURT STAFF) (Filed on 3/17/2005) (Entered: 03/17/2005)
83 AMENDED COMPLAINT Stipulation re Second Amended Complaint against Costco Wholesale Corporation. Filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit)(Seligman, Brad) (Filed on 3/23/2005) (Entered: 03/23/2005)
84 Defendant Costco Wholesale Corporation's ANSWER to Amended Complaint byCostco Wholesale Corporation. (Kadue, David) (Filed on 4/5/2005) (Entered: 04/05/2005)
85 Further Supplemental Briefing re Defendant's Motion to Transfer Venue filed by Shirley "Rae" Ellis. Motion Hearing set for 5/16/2005 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Seligman, Brad) (Filed on 4/18/2005) Modified on 4/19/2005 (gba, COURT STAFF). (Entered: 04/18/2005)
86 Declaration of Brad Seligman in Support of 85 Plaintiff's Further Supplemental Briefing re Defendant's Motion to Transfer Venue filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Exhibits 1−7 Seligman Declaration)(Related document(s) 85 ) (Seligman, Brad) (Filed on 4/18/2005) Modified on 4/19/2005 (gba, COURT STAFF). (Entered: 04/18/2005)
87 Declaration of Elaine Sasaki in Support of 85 Supplemental Briefing re Defendant's Motion to Transfer Venue filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Exhibits 1−2 Sasaki Declaration)(Related document(s) 85 ) (Seligman, Brad) (Filed on 4/18/2005) Modified on 4/19/2005 (gba, COURT STAFF). (Entered: 04/18/2005)
88 Declaration of Richard Drogin in Support of 85 Supplemental Briefing re Defendant's Motion to Transfer Venue filed byShirley "Rae" Ellis. (Attachments: # 1 Appendix Appendix 1−4 Drogin Declaration)(Related document(s) 85 ) (Seligman, Brad) (Filed on 4/18/2005) Modified on 4/19/2005 (gba, COURT STAFF). (Entered: 04/18/2005)
89 NOTICE of Post Discovery Memorandum in Support of Motion to Transfer Venue filed by Costco Wholesale Corporation. Motion Hearing set for 5/16/2005 02:30 PM in Courtroom 15, 18th Floor, San Francisco. (Kadue, David) (Filed on 4/18/2005) Modified on 4/19/2005 (gba, COURT STAFF). (Entered: 04/18/2005)
90 Declaration of David D. Kadue in Support of 89 Defendant's Post−Discovery Memorandum filed byCostco Wholesale Corporation. (Kadue, David) (Filed on 4/18/2005) Modified on 4/19/2005 (gba, COURT STAFF). (Entered: 04/18/2005)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 13 of 65

04/22/2005 05/02/2005 05/02/2005 05/02/2005 05/02/2005 05/02/2005 05/24/2005 05/31/2005 08/15/2005 08/17/2005 11/08/2005 11/10/2005 11/21/2005 11/28/2005
01/10/2006 01/10/2006 01/10/2006

91 TRANSCRIPT of Proceedings held on 11/29/04 before Judge Marilyn H. Patel. Court Reporter: Catherine Luciano. (gba, COURT STAFF) (Filed on 4/22/2005) (Entered: 04/26/2005)
92 Supplemental Reply Memorandum re 6 Defendant's Motion to Transfer Venue filed byShirley "Rae" Ellis. (Seligman, Brad) (Filed on 5/2/2005) Modified on 5/3/2005 (gba, COURT STAFF). (Entered: 05/02/2005)
93 Declaration of Brad Seligman in Support of 92 Reply Memorandum filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Exhibits 8 and 9)(Related document(s) 92 ) (Seligman, Brad) (Filed on 5/2/2005) (Entered: 05/02/2005)
94 Declaration of Doug Schutt In Support of Motion to Transfer Venue 95 filed byCostco Wholesale Corporation. (Kadue, David) (Filed on 5/2/2005) Modified on 5/3/2005 (ewn, COURT STAFF). (Entered: 05/02/2005)
95 Reply Memorandum Post−Discovery In Support of Motion to Transfer Venue 70 filed byCostco Wholesale Corporation. (Kadue, David) (Filed on 5/2/2005) Modified on 5/3/2005 (ewn, COURT STAFF). (Entered: 05/02/2005)
96 Declaration of Dennis Zook in Support of 95 Reply Memorandum Post−Discovery In Support of Motion to Transfer Venue filed byCostco Wholesale Corporation. (Related document(s) 95 ) (Kadue, David) (Filed on 5/2/2005) (Entered: 05/02/2005)
97 STIPULATION AND ORDER re Filing of Second Amended Complaint;Signed by Judge Marilyn Hall Patel on 5/13/2005. (awb, COURT−STAFF) (Filed on 5/24/2005) (Entered: 05/24/2005)
98 MEMORANDUM AND ORDER denying defendant's motion to transfer action; Signed by Judge Marilyn Hall Patel on 5/31/2005. (awb, COURT−STAFF) (Filed on 5/31/2005) (Entered: 05/31/2005)
99 STIPULATION re Case Management by Costco Wholesale Corporation. (Kadue, David) (Filed on 8/15/2005) (Entered: 08/15/2005)
100 STIPULATION AND ORDER: Status Conference continuued to 11/21/2005 03:00 PM in Courtroom 15, 18th Floor, San Francisco; Signed by Judge Marilyn Hall Patel on 8/16/2005. (awb, COURT−STAFF) (Filed on 8/17/2005) (Entered: 08/17/2005)
101 STIPULATION re Change in CMC Date by Costco Wholesale Corporation. (Kadue, David) (Filed on 11/8/2005) (Entered: 11/08/2005)
102 STIPULATION AND ORDER: Case Management Conference reset for 11/28/2005 03:00 PM; Signed by Judge Marilyn Hall Patel on 11/10/2005. (awb, COURT−STAFF) (Filed on 11/10/2005) (Entered: 11/10/2005)
103 JOINT CASE MANAGEMENT STATEMENT for November 28, 2005 Conference filed by Shirley "Rae" Ellis. (Seligman, Brad) (Filed on 11/21/2005) (Entered: 11/21/2005)
104 Minute Entry: Status Conference held before the honorable Marilyn Hall Patel; (Date Filed: 11/28/2005) Status Conference set for 2/27/2006 03:00 PM in Courtroom 15, 18th Floor, San Francisco, with a joint status report to be filed one week prior. (Court Reporter Michael Shintaku.) (awb, COURT−STAFF) (Date Filed: 11/28/2005) (Entered: 11/28/2005)
105 MOTION for leave to appear in Pro Hac Vice by Thomas J. Wybenga filed by Costco Wholesale Corporation. (Attachments: # 1 Proposed Order)(Kadue, David) (Filed on 1/10/2006) (Entered: 01/10/2006)
106 MOTION for Admission of Thomas J. Wybenga Pro Hac Vice (Fee $210.00, Receipt Number 3380295) filed by Costco Wholesale Corporation. (gba, COURT STAFF) (Filed on 1/10/2006) (slhS, COURT STAFF). (Entered: 01/11/2006)
Received Order re 106 MOTION for leave to appear in Pro Hac Vice by Costco Wholesale Corporation. (gba, COURT STAFF) (Filed on 1/10/2006) (Entered: 01/11/2006)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 14 of 65

01/18/2006 02/21/2006 02/28/2006
03/09/2006 03/09/2006 03/09/2006 03/09/2006 03/10/2006 03/29/2006 04/03/2006 04/08/2006 04/11/2006 04/13/2006 04/14/2006 06/19/2006 06/21/2006
06/26/2006 06/26/2006 06/28/2006

107 ORDER by Judge Marilyn Hall Patel granting 105 106 defendant's Motion for attorney Thomas J Wybenga to appear Pro Hac Vice (awb, COURT−STAFF) (Filed on 1/18/2006) (Entered: 01/18/2006)
108 JOINT CASE MANAGEMENT STATEMENT filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 2/21/2006) (Entered: 02/21/2006)
109 Minute Entry: Status Conference before the honorable Marilyn Hall Patel (Date Filed: 2/28/2006). Telephonic Status Conference set for 3/29/2006 03:00 PM in Courtroom 15, 18th Floor, San Francisco. (Court Reporter Juanita Gonzales.) (awb, COURT−STAFF) (Date Filed: 2/28/2006) (Entered: 02/28/2006)
110 MOTION for leave to appear in Pro Hac Vice of David B. Ross filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 3/9/2006) (Entered: 03/09/2006)
111 Proposed Order re 110 MOTION for leave to appear in Pro Hac Vice of David B. Ross by Costco Wholesale Corporation. (Kadue, David) (Filed on 3/9/2006) (Entered: 03/09/2006)
112 MOTION of David B. Ross to be Admitted Pro Hac Vice (Fee $210.00, receipt number 3382876) filed by Costco Wholesale Corporation. (gba, COURT STAFF) (Filed on 3/9/2006) (Entered: 03/10/2006)
Received Order re 112 MOTION for leave to appear in Pro Hac Vice by Costco Wholesale Corporation. (gba, COURT STAFF) (Filed on 3/9/2006) (Entered: 03/10/2006)
113 ORDER by Judge Marilyn Hall Patel granting 110 112 defendant's Motion for attorney David B Ross to appear Pro Hac Vice (awb, COURT−STAFF) (Filed on 3/10/2006) (Entered: 03/10/2006)
114 STIPULATION To Continue Case Management Conference by Costco Wholesale Corporation. (Kadue, David) (Filed on 3/29/2006) (Entered: 03/29/2006)
115 STIPULATION AND ORDER continuing telephonic Case Management Conference to 4/13/2006 at 3:00 pm; Signed by Judge Marilyn Hall Patel on 4/3/2006. (awb, COURT−STAFF) (Filed on 4/3/2006) (Entered: 04/03/2006)
116 MOTION to Withdraw as Attorney filed by Shirley "Rae" Ellis. (Sekhon, Nirej) (Filed on 4/8/2006) (Entered: 04/08/2006)
117 ORDER by Judge Marilyn Hall Patel granting 116 Motion to Withdraw as Attorney; Attorney Nirej S. Sekhon terminated (awb, COURT−STAFF) (Filed on 4/11/2006) (Entered: 04/11/2006)
118 STIPULATION to Continue Case Management Conference by Costco Wholesale Corporation. (Kampf, William) (Filed on 4/13/2006) (Entered: 04/13/2006)
119 STIPULATION AND ORDERcontinuing telephonic Case Management Conference set for 4/19/2006 03:00 PM; Signed by Judge Marilyn Hall Patel on 4/14/2006. (awb, COURT−STAFF) (Filed on 4/14/2006) (Entered: 04/14/2006)
120 STIPULATION AND [PROPOSED] ORDER REGARDING CLASS CERTIFICATION SCHEDULE by Costco Wholesale Corporation. (Kadue, David) (Filed on 6/19/2006) (Entered: 06/19/2006)
121 STIPULATION AND ORDER RESETTING BRIEFING SCHEDULES AS TO CLASS CERT MOTION; Motion Hearing reset for 11/6/2006 02:00 PM in Courtroom 15, 18th Floor, San Francisco; Signed by Judge Marilyn Hall Patel on 6/20/2006. (awb, COURT−STAFF) (Filed on 6/21/2006) (Entered: 06/21/2006)
122 Letter from Brad Seligman re telephonic status conference. (Seligman, Brad) (Filed on 6/26/2006) (Entered: 06/26/2006)
123 JOINT CASE MANAGEMENT STATEMENT filed by Shirley "Rae" Ellis. (Seligman, Brad) (Filed on 6/26/2006) (Entered: 06/26/2006)
124 CLERK'S NOTICE: Telephonic Status Conference reset for 7/5/2006 10:00 AM before the Hon. Marilyn Hall Patel (awb, COURT−STAFF) (Filed on 6/28/2006) (Entered: 06/28/2006)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 15 of 65

07/05/2006 07/06/2006 08/28/2006 08/28/2006
08/28/2006 08/28/2006 08/28/2006 08/28/2006
08/28/2006 08/28/2006 08/28/2006 08/28/2006 08/28/2006 08/28/2006

125 Minute Entry: Telephone Status/Discovery Conference before the Hon. Marilyn Hall Patel (Date Filed: 7/5/2006). (Court Reporter Joan Columbini.) (awb, COURT−STAFF) (Date Filed: 7/5/2006) (Entered: 07/05/2006)
126 Proposed Order re 123 Case Management Statement (Joint) by Shirley "Rae" Ellis. (Seligman, Brad) (Filed on 7/6/2006) (Entered: 07/06/2006)
127 First MOTION to Certify Class and to Appoint Class Counsel filed by Shirley "Rae" Ellis. Motion Hearing set for 11/6/2006 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
128 Declaration of Jocelyn D. Larkin in Support of 127 First MOTION to Certify Class and to Appoint Class Counsel filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Sinegal Deposition Excerpts# 2 Exhibit Matthews Deposition Excerpts# 3 Exhibit Zook Deposition Excerpts)(Related document(s) 127 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
129 EXHIBITS re 128 Declaration in Support, Exhibit, Schutt Deposition Excerpts filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit DiCerchio Deposition Excerpts# 2 Exhibit Davis Deposition Excerpts# 3 Exhibit Webb Deposition Excerpts)(Related document(s) 128 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
130 EXHIBITS re 128 Declaration in Support, Exhibit, Vadney Deposition Excerpts filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Portera Deposition Excerpts# 2 Exhibit Hoover Deposition Excerpts# 3 Exhibit Cardoso Deposition Excerpts)(Related document(s) 128 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
131 EXHIBITS re 128 Declaration in Support, Exhibit Gaherty Deposition Excerpts filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Vachris Deposition Excerpts# 2 Exhibit Omoss Deposition Excerpts# 3 Exhibit Glenn Deposition Excerpts)(Related document(s) 128 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
132 EXHIBITS re 128 Declaration in Support, Exhibit U.S. Warehouses filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Amended 30(b)(6) Deposition Notice# 2 Exhibit Zook Venue Declaration# 3 Exhibit Warehouse Ops Flow Chart# 4 Exhibit 30(b)(6) Deposition Notice# 5 Exhibit Warehouse Flow Chart# 6 Exhibit Executive Committee List)(Related document(s) 128 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
133 Declaration of Richard Drogin in Support of 127 First MOTION to Certify Class and to Appoint Class Counsel filed byShirley "Rae" Ellis. (Related document(s) 127 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
134 Declaration in Support of 127 First MOTION to Certify Class and to Appoint Class Counsel Declaration of Marc Bendick filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Resume# 2 Exhibit Case History# 3 Exhibit Documents Consulted)(Related document(s) 127 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
135 Declaration of Barbara Reskin in Support of 127 First MOTION to Certify Class and to Appoint Class Counsel filed byShirley "Rae" Ellis. (Related document(s) 127 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
136 Declaration of Brad Seligman in Support of 127 First MOTION to Certify Class and to Appoint Class Counsel filed byShirley "Rae" Ellis. (Related document(s) 127 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
137 Declaration of Kathleen Olson in Support of 127 First MOTION to Certify Class and to Appoint Class Counsel filed byShirley "Rae" Ellis. (Related document(s) 127 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
138 Declaration of Shirley "Rae" Ellis in Support of 127 First MOTION to Certify Class and to Appoint Class Counsel filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Performance Evaluation# 2 Exhibit Employee Review# 3 Exhibit Performance Appraisal# 4 Exhibit Charge of Discrimination# 5 Exhibit Right to Sue Letter# 6 Exhibit Letter to Roger Peterson)(Related document(s) 127 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)

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139 EXHIBITS re 138 Declaration in Support, Exhibit Retaliation Charge filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Retaliation Right to Sue Letter# 2 Exhibit Letter to Jim Sinegal# 3 Exhibit Resignation Letter)(Related document(s) 138 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
140 Declaration of Jessica Harrell in Support of 127 First MOTION to Certify Class and to Appoint Class Counsel filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Employee Progress Review# 2 Exhibit Employee Progress Review 2# 3 Exhibit Yearly Evaluation# 4 Exhibit Performance Evaluation# 5 Exhibit Performance Evaluation 2# 6 Exhibit Performance Review# 7 Exhibit Performance Review 2# 8 Exhibit Performance Appraisal)(Related document(s) 127 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
141 Declaration of Leah Horstman in Support of 127 First MOTION to Certify Class and to Appoint Class Counsel filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Employee Progress Review# 2 Exhibit Employee Review# 3 Exhibit Performance Evaluation# 4 Exhibit Performance Evaluation 2# 5 Exhibit Performance Evaluation 3# 6 Exhibit Performance Appraisal# 7 Exhibit Charge of Discrimination# 8 Exhibit Right to Sue Letter)(Related document(s) 127 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
142 Declaration of Elaina Wales in Support of 127 First MOTION to Certify Class and to Appoint Class Counsel filed byShirley "Rae" Ellis. (Attachments: # 1 Errata Performance Review# 2 Exhibit Performance Appraisal# 3 Exhibit Performance Evaluation# 4 Exhibit Charge of Discrimination# 5 Exhibit Right to Sue Letter)(Related document(s) 127 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
143 Declaration of Elaine Sasaki in Support of 127 First MOTION to Certify Class and to Appoint Class Counsel filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Performance Evaluation# 2 Exhibit Performance Evaluation 2# 3 Exhibit Performance Evaluation 3# 4 Exhibit Performance Evaluation 4# 5 Exhibit Performance Evaluation 5# 6 Exhibit Performance Review# 7 Exhibit Yearly Manager Review)(Related document(s) 127 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
144 EXHIBITS re 143 Declaration in Support, Exhibit Performance Evaluation filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Letter to Judy Vadney# 2 Exhibit Letter from Judy Vadney# 3 Exhibit Charge of Discrimination# 4 Exhibit Right to Sue Letter)(Related document(s) 143 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
145 EXHIBITS re 128 Declaration in Support, Exhibit 23 Part One of Four filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Exhibit 23 Part Two of Four# 2 Exhibit 23 Part Three of Four# 3 Exhibit Exjhibit 23 Part Four of Four)(Related document(s) 128 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
146 EXHIBITS re 128 Declaration in Support, Exhibit Sample Job Postings filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Letter to Kadue# 2 Exhibit Job Analyses# 3 Errata Sample Promotable Lists# 4 Exhibit 1999 Matthews Memo# 5 Exhibit 2004 Diversity Data# 6 Exhibit Warehouse Diversity Percentages)(Related document(s) 128 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
147 EXHIBITS re 128 Declaration in Support, Exhibit 2001 BOLD Initiative Focus Group filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Fact Finding Report# 2 Exhibit Workplan 2002 Posting Policy)(Related document(s) 128 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
148 EXHIBITS re 128 Declaration in Support, Exhibit 34 Part One of Two filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Exhibit 34 Part Two of Two# 2 Exhibit 2005 Session Comments# 3 Exhibit Next Steps Memo# 4 Exhibit Regional Focus Group Notes# 5 Exhibit Diversity in the Workplace# 6 Exhibit Operations Meeting Agenda# 7 Exhibit Manual Filing Notification for Exhibit 40)(Related document(s) 128 ) (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)
149 Proposed Order re 127 First MOTION to Certify Class and to Appoint Class Counsel by Shirley "Rae" Ellis. (Seligman, Brad) (Filed on 8/28/2006) (Entered: 08/28/2006)

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150 Memorandum in Opposition re 127 First MOTION to Certify Class and to Appoint Class Counsel Opposition filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
151 AFFIDAVIT in Opposition OF FRANK LANDY (FIRST) filed byCostco Wholesale Corporation. (Attachments: # 1 Affidavit LANDY FIRST DECLARATION)(Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
152 AFFIDAVIT in Opposition LANDY SECOND DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
153 AFFIDAVIT in Opposition MULLIGAN DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
154 AFFIDAVIT in Opposition STOCKDALE FIRST DECLARATION filed byCostco Wholesale Corporation. (Attachments: # 1 Affidavit STOCKDALE FIRST DECLARATION)(Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
155 AFFIDAVIT in Opposition STOCKDALE SECOND DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
156 AFFIDAVIT in Opposition Saad First Declaration filed byCostco Wholesale Corporation. (Attachments: # 1 Affidavit Saad First Declaration)(Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
157 AFFIDAVIT in Opposition CAROLYN ADAMS filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
158 AFFIDAVIT in Opposition Saad Second Declaration filed byCostco Wholesale Corporation. (Attachments: # 1 Affidavit Saad Second Declaration)(Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
159 AFFIDAVIT in Opposition KIM ALEGRIA DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
160 AFFIDAVIT in Opposition Declaration of Maria Cabrera filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
161 AFFIDAVIT in Opposition JOAN ANDERSON DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
162 AFFIDAVIT in Opposition Declaration of Jane Cafiso filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
163 AFFIDAVIT in Opposition ELIZABETH ARELLANO DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
164 AFFIDAVIT in Opposition Declaration of Marion Cali filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
165 AFFIDAVIT in Opposition STACEY ARRENDONDO DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
166 AFFIDAVIT in Opposition Declaration of Marilyn Calviero filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
167 AFFIDAVIT in Opposition PAT ASCH DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
168 AFFIDAVIT in Opposition Declaration of Helen Castillo filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
169 AFFIDAVIT in Opposition GERI AUERBACH DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
170 AFFIDAVIT in Opposition Declaration of Arianna Cazares filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
171 AFFIDAVIT in Opposition Declaration of Ingrid Chase filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)

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172 AFFIDAVIT in Opposition Declaration of Cindy Cherneski filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
173 AFFIDAVIT in Opposition PAMELA BABISH DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
174 AFFIDAVIT in Opposition Declaration of Laura Churillo filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
175 AFFIDAVIT in Opposition ANGELA BAUER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
176 AFFIDAVIT in Opposition Declaration of Kerry Cline filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
177 AFFIDAVIT in Opposition LYNDA BEJARANO DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
178 AFFIDAVIT in Opposition Declaration of Ann Conforti filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
179 AFFIDAVIT in Opposition Declaration of Claudia Consla filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
180 AFFIDAVIT in Opposition Declaration of Cindy Copper−Swift filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
181 AFFIDAVIT in Opposition JANIE BENJAMIN DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
182 AFFIDAVIT in Opposition Declaration of Michelle Corbett filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
183 AFFIDAVIT in Opposition DEBBIE BERG DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
184 AFFIDAVIT in Opposition Declaration of Cynthia Cordell filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
185 AFFIDAVIT in Opposition JENNIFER BERRY DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
186 AFFIDAVIT in Opposition Declaration of Julie Cruz filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
187 AFFIDAVIT in Opposition AMBER BETANCOURT DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
188 AFFIDAVIT in Opposition KATHLEEN BIBERAJ DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
189 AFFIDAVIT in Opposition ZADE BIBERAJ DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
190 AFFIDAVIT in Opposition JERRI−LYNNE BODDY DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
191 AFFIDAVIT in Opposition DEBORAH BOLGER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
192 AFFIDAVIT in Opposition Declaration of Kriste D'Agostino filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
193 AFFIDAVIT in Opposition JEANNE BONSIGNORE DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
194 AFFIDAVIT in Opposition Declaration of Constance Dizotell filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)

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195 AFFIDAVIT in Opposition NINA BORGNER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
196 AFFIDAVIT in Opposition Declaration of Betty Drenning filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
197 AFFIDAVIT in Opposition JANET BRAYE DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
198 AFFIDAVIT in Opposition Declaration of Shawn Durham filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
199 AFFIDAVIT in Opposition JESICA BUNNELL DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
200 AFFIDAVIT in Opposition LORETTA BUTLER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
201 AFFIDAVIT in Opposition Declaration of Cynthia Faniel filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
202 AFFIDAVIT in Opposition ERIN EBANY DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
203 AFFIDAVIT in Opposition Declaration of Anna Marie Ferris−Alvarenga filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
204 AFFIDAVIT in Opposition JENNY EISENHAUER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
205 AFFIDAVIT in Opposition Declaration of Patricia Foster filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
206 AFFIDAVIT in Opposition Declaration of Meredith Fox filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
207 AFFIDAVIT in Opposition JULIE ERINGER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
208 AFFIDAVIT in Opposition Declaration of Norma Francisco filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
209 AFFIDAVIT in Opposition NAK−HE EVANS DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
210 AFFIDAVIT in Opposition Declaration of Tiffany Fuentes filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
211 AFFIDAVIT in Opposition KAREN GARCIA DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
212 AFFIDAVIT in Opposition JOIE GARDNER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
213 AFFIDAVIT in Opposition LESLIE GARLACH DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
214 AFFIDAVIT in Opposition KRISTEN GEISSLER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
215 AFFIDAVIT in Opposition Carolina Fultz Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
216 AFFIDAVIT in Opposition DEBRA GELLER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
217 AFFIDAVIT in Opposition Carolyn Hagemeyer Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)

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218 AFFIDAVIT in Opposition DEBRA GEORGE DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
219 AFFIDAVIT in Opposition NICOLA GHEAJA DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
220 AFFIDAVIT in Opposition Jillisa Hansen Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
221 AFFIDAVIT in Opposition HEIDI GIBSON DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
222 AFFIDAVIT in Opposition LINDA GILMORE DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
223 AFFIDAVIT in Opposition Julie Heath Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
224 AFFIDAVIT in Opposition MEG GLIME DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
225 AFFIDAVIT in Opposition Erin Hefferon Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
226 AFFIDAVIT in Opposition DENISE GOLEMBIESKI DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
227 AFFIDAVIT in Opposition BEATRIZ GOMEZ DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
228 AFFIDAVIT in Opposition KATHLEEN GONZALES DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
229 AFFIDAVIT in Opposition Maria Heidi Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
230 AFFIDAVIT in Opposition TONYA GONZALES DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
231 AFFIDAVIT in Opposition TONYA GONZALES DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
232 AFFIDAVIT in Opposition Tanya Hekkala Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
233 AFFIDAVIT in Opposition Vann Hewison Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
234 AFFIDAVIT in Opposition JENNY GOOCH DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
235 AFFIDAVIT in Opposition STEPHANIE GORDAN DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
236 AFFIDAVIT in Opposition Helene Hickey Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
237 AFFIDAVIT in Opposition DARBY GREEK DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
238 AFFIDAVIT in Opposition LINDA GREEK DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
239 AFFIDAVIT in Opposition Gail Hinds Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
240 AFFIDAVIT in Opposition JULIE GRIMES DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
241 AFFIDAVIT in Opposition MELANIE IKEDA DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)

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242 AFFIDAVIT in Opposition KANTA INGLE DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
243 AFFIDAVIT in Opposition Beverly Hodak−Pirrami Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
244 AFFIDAVIT in Opposition CYNTHIA KAVATHAS DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
245 AFFIDAVIT in Opposition Randi Hoenninger Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
246 AFFIDAVIT in Opposition KOULA KERASSIDES DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
247 AFFIDAVIT in Opposition Cheryl Hull Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
248 AFFIDAVIT in Opposition CATHERINE KIENZLE DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
249 AFFIDAVIT in Opposition JUNE KLEIN DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
250 AFFIDAVIT in Opposition Lynn Hurbace Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
251 AFFIDAVIT in Opposition GAIL KNIGHT DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
252 AFFIDAVIT in Opposition Lory Janus Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
253 AFFIDAVIT in Opposition REBECCA KOCH DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
254 AFFIDAVIT in Opposition Lucinda Johnson Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
255 AFFIDAVIT in Opposition BOBETTE LAUREANO DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
256 AFFIDAVIT in Opposition Nora Jovel Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
257 AFFIDAVIT in Opposition SANDRA LEMANIAK DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
258 AFFIDAVIT in Opposition Jennifer Joven−Herr Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
259 AFFIDAVIT in Opposition VICKI LEMON DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
260 AFFIDAVIT in Opposition Bobette Laureano Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
261 AFFIDAVIT in Opposition Sandra Lemaniak Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
262 AFFIDAVIT in Opposition Vicki Lemon Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
263 AFFIDAVIT in Opposition GAYE LESSANDRINI DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
264 AFFIDAVIT in Opposition ROBIN LIGHTLE DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)

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09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006

265 AFFIDAVIT in Opposition Robin Lightle Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
266 AFFIDAVIT in Opposition DENISE LILLESTOL DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
267 AFFIDAVIT in Opposition Denise Lillestol Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
268 AFFIDAVIT in Opposition DAWN LOUKS DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
269 AFFIDAVIT in Opposition Tammy Loveland Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
270 AFFIDAVIT in Opposition Andrea Lowden Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
271 AFFIDAVIT in Opposition DIANA MACDONALD DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
272 AFFIDAVIT in Opposition MARY MAGEL DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
273 AFFIDAVIT in Opposition Mary Loy Smith Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
274 AFFIDAVIT in Opposition ALISA MANNING DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
275 AFFIDAVIT in Opposition Cameron Lynch Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
276 AFFIDAVIT in Opposition CHANDNI MANOOA DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
277 AFFIDAVIT in Opposition Brenda Lyons Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
278 AFFIDAVIT in Opposition Kathleen Neway Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
279 AFFIDAVIT in Opposition MICHELLE MAR DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
280 AFFIDAVIT in Opposition Georgia Nierstheimer Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
281 AFFIDAVIT in Opposition MARY MARTIN DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
282 AFFIDAVIT in Opposition CANDIESE MATTERN DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
283 AFFIDAVIT in Opposition Kristin Padgett Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
284 AFFIDAVIT in Opposition MELODI MCCOY DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
285 AFFIDAVIT in Opposition Gina Pascale Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
286 AFFIDAVIT in Opposition MELISSA MCCURDY DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
287 AFFIDAVIT in Opposition NETRA MCGREW DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)

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09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006

288 AFFIDAVIT in Opposition Elizabeth Perez Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
289 AFFIDAVIT in Opposition Kimberly Perry Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
290 AFFIDAVIT in Opposition CASSANDRA MEDINA DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
291 AFFIDAVIT in Opposition Cindy Peterson Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
292 AFFIDAVIT in Opposition LORI MEDINA DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
293 AFFIDAVIT in Opposition KATHERINE MENDOZA DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
294 AFFIDAVIT in Opposition DEBORAH MEYER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
295 AFFIDAVIT in Opposition KATHY MIKESELL DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
296 AFFIDAVIT in Opposition Joan Peterson Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
297 AFFIDAVIT in Opposition NANCY MINOR DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
298 AFFIDAVIT in Opposition Karen Pettit Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
299 AFFIDAVIT in Opposition MARY MISZUK−WILSON DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
300 AFFIDAVIT in Opposition Melanie Petty Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
301 AFFIDAVIT in Opposition LORI MONACO DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
302 AFFIDAVIT in Opposition Delores Pfeffer−Smith filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
303 AFFIDAVIT in Opposition KRISTINE MOLNAR DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
304 AFFIDAVIT in Opposition Amanda Plaugher Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
305 AFFIDAVIT in Opposition HILDE MONTE DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
306 AFFIDAVIT in Opposition LAURA MOORE DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
307 AFFIDAVIT in Opposition Taunya Lynn Poser Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
308 AFFIDAVIT in Opposition ANITA MORGAN DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
309 AFFIDAVIT in Opposition Tracie D. Powers Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
310 AFFIDAVIT in Opposition KATRINA MORGAN DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)

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311 AFFIDAVIT in Opposition Margaret Pramuan Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
312 AFFIDAVIT in Opposition MOLLY O'CONNELL DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
313 AFFIDAVIT in Opposition Irma Reyes Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
314 AFFIDAVIT in Opposition RAYNI ONG DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
315 AFFIDAVIT in Opposition Patricia Robillard Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
316 AFFIDAVIT in Opposition Jeanne Rosolino Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
317 AFFIDAVIT in Opposition DEBBIE SARTER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
318 AFFIDAVIT in Opposition Esther Russell Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
319 AFFIDAVIT in Opposition ANEESAH SAVAGE DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
320 AFFIDAVIT in Opposition ANGELA SCHAUBLIN DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
321 AFFIDAVIT in Opposition KELLY SCHIPPERT DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
322 AFFIDAVIT in Opposition Stephanie Tagai Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
323 AFFIDAVIT in Opposition KIM SILVA HUTSON DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
324 AFFIDAVIT in Opposition Lonnie Tapp Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
325 AFFIDAVIT in Opposition LISA SILVA DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
326 AFFIDAVIT in Opposition KAREN SITERO DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
327 AFFIDAVIT in Opposition Connie Lee Taylor Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
328 AFFIDAVIT in Opposition Bonnie Thompson Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
329 AFFIDAVIT in Opposition JACKIE SLOAD DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
330 AFFIDAVIT in Opposition Ofelia Tufo Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
331 AFFIDAVIT in Opposition MARY LOY SMITH DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
332 AFFIDAVIT in Opposition SANDRA SMITH DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
333 AFFIDAVIT in Opposition Suzanne Tullo Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
334 AFFIDAVIT in Opposition LINDA SOLORZANO DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)

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335 AFFIDAVIT in Opposition TANYA SPENCE DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
336 AFFIDAVIT in Opposition Clydene Vargas Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
337 AFFIDAVIT in Opposition COLLEEN STANKIEWICZ DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
338 AFFIDAVIT in Opposition JANE STIERS DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
339 AFFIDAVIT in Opposition Jennifer Verdugo Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
340 AFFIDAVIT in Opposition JANELLE STIPO DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
341 AFFIDAVIT in Opposition Desiree Viverito Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
342 AFFIDAVIT in Opposition Zoya Vlady Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
343 AFFIDAVIT in Opposition VALERIE SWANGLER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
344 AFFIDAVIT in Opposition Monica Zavala Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
345 AFFIDAVIT in Opposition SHELLY UNDERWOOD DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
346 AFFIDAVIT in Opposition Suzanne Zermeno Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
347 AFFIDAVIT in Opposition Donna Wolbert Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
348 AFFIDAVIT in Opposition TAMMY WAGNER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
349 AFFIDAVIT in Opposition CHRISTI WAHL DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
350 AFFIDAVIT in Opposition Debra Wolford Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
351 AFFIDAVIT in Opposition CAROLYN WALGREN DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
352 AFFIDAVIT in Opposition Andrea Wunderlich Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
353 AFFIDAVIT in Opposition Michelle Williams Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
354 AFFIDAVIT in Opposition CAROLYN WALKER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
355 AFFIDAVIT in Opposition Jessica Willard Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
356 AFFIDAVIT in Opposition SONIA WARD DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
357 AFFIDAVIT in Opposition Donna Wilkinson Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)

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09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/29/2006
09/29/2006
09/29/2006

358 AFFIDAVIT in Opposition ANNA WALLACE DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
359 AFFIDAVIT in Opposition Jill Whittaker Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
360 AFFIDAVIT in Opposition MAGGIE WELLS DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
361 AFFIDAVIT in Opposition TERRY WEY DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
362 AFFIDAVIT in Opposition Jacqueline Whitney Declaration filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
363 AFFIDAVIT in Opposition PHYLLIS WHITFIELD DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
364 AFFIDAVIT in Opposition MICHELLE CAVETT DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
365 AFFIDAVIT in Opposition MARIA ALVAREZ DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
366 AFFIDAVIT in Opposition KIM ALEGRIA DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
367 AFFIDAVIT in Opposition MARIA CABRERA DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
368 AFFIDAVIT in Opposition GINA PASCALE DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
369 AFFIDAVIT in Opposition ANITA SCHWARTZ DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
370 AFFIDAVIT in Opposition JENNIFER VAN GUILDER DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
371 AFFIDAVIT in Opposition CYNTHIA KAVATHAS DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
372 AFFIDAVIT in Opposition DENNIS ZOOK DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
373 AFFIDAVIT in Opposition RICHARD WEBB DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
374 AFFIDAVIT in Opposition JUDY VADNEY DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
375 AFFIDAVIT in Opposition ROBERT E. NELSON DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
376 AFFIDAVIT in Opposition JOHN MATTHEWS DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
377 AFFIDAVIT in Opposition JOHN GAHERTY DECLARATION filed byCostco Wholesale Corporation. (Watts, Thomas) (Filed on 9/28/2006) (Entered: 09/28/2006)
378 NOTICE by Shirley "Rae" Ellis −−Notice of Withdrawal from Case and Notice Regarding Updated Service List−− (Kramer, Karin) (Filed on 9/29/2006) (Entered: 09/29/2006)
379 AFFIDAVIT in Opposition Linda Hamil Declaration Re 150 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
380 AFFIDAVIT in Opposition Ron Vachris Declaration Re 150 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered:

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09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006

09/29/2006)
381 AFFIDAVIT in Opposition Joseph Portera Declaration RE 150 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
382 AFFIDAVIT in Opposition Douglas W. Schutt Declaration Re 150 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
383 AFFIDAVIT in Opposition Fidel Cardoso Declaration Re 150 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
384 AFFIDAVIT in Opposition Mario Omoss Declaration Re 150 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
385 AFFIDAVIT in Opposition Dennis Hoover Declaration Re 150 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
386 AFFIDAVIT in Opposition John F. Booth Declaration Re 150 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
387 STIPULATION Stipulation and [Proposed] Order Permitting The Filing Under Seal of Defendant's Request for Judicial Notice of Leah Horstman's Divorce Records by Costco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
388 Request for Judicial Notice Costco's Request for Judicial Notice In Opposition to Motion for Class Certification [To Be Filed Under Seal] filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
389 DECLARATION of David Kadue Submitted In (1) Opposition to Plaintiff's Motion for Class Certification and (2) Support of Motions to Strike Bendick, Drogin, and Reskin Declarations filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
390 EXHIBITS A J. Gaherty Deposition Excerpt Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
391 EXHIBITS Exhibit B to D. Kadue's Declaration Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
392 EXHIBITS Ex. C to D. Kadue's Declaration Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
393 EXHIBITS Ex. D Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
394 EXHIBITS Ex. E Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
395 EXHIBITS Ex. D−135 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
396 EXHIBITS Ex D−137 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
397 EXHIBITS Ex D−139 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
398 EXHIBITS EX F Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
399 EXHIBITS Ex. G Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)

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09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006

400 EXHIBITS Ex H Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
401 EXHIBITS Ex I re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
402 EXHIBITS Ex K Re 289 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
403 EXHIBITS EX L Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
404 EXHIBITS Ex L−66 re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
405 EXHIBITS Ex M Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
406 EXHIBITS Ex N Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
407 EXHIBITS Ex O re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
408 EXHIBITS Ex P Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
409 EXHIBITS Ex Q Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
410 EXHIBITS Ex R Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
411 EXHIBITS Ex S Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
412 EXHIBITS Ex T Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
413 EXHIBITS Ex T−2021 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
414 EXHIBITS Ex T−2022 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
415 EXHIBITS Ex T 2023 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
416 EXHIBITS Ex U Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
417 EXHIBITS Ex U 1030 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
418 EXHIBITS Ex U−1041 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
419 EXHIBITS Ex V Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
420 EXHIBITS Ex W Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
421 EXHIBITS Ex X−5 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
422 EXHIBITS Ex Y Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
423 EXHIBITS Ex X Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)

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09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006
09/29/2006
09/29/2006
09/29/2006 09/29/2006 09/29/2006 09/29/2006
09/29/2006
09/29/2006 09/29/2006 09/29/2006 09/29/2006

424 EXHIBITS Ex Z Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
425 EXHIBITS Ex AA Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
426 EXHIBITS Ex BB Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
427 EXHIBITS Ex CC Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
428 EXHIBITS Ex DD Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
429 EXHIBITS Ex FF Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
430 EXHIBITS Ex GG Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
431 EXHIBITS EE 1 of 2 RE 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
432 EXHIBITS Ex EE 2 of 2 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
433 Memorandum in Opposition To Class Certification filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
434 Memorandum of Points and Authorities in support of 433 Memorandum in Opposition to Class Certification filed by Costco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) Modified on 10/5/2006 (gba, COURT STAFF). (Entered: 09/29/2006)
435 First MOTION to Strike Reskin Declaration filed by Costco Wholesale Corporation. Motion Hearing set for 11/6/2006 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
436 First MOTION to Strike Bendick Declaration filed by Costco Wholesale Corporation. Motion Hearing set for 11/6/2006 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
437 EXHIBITS Ex. Y−1525 1 of 3 Re 389 filed byCostco Wholesale Corporation. (Anastasia, Damon) (Filed on 9/29/2006) (Entered: 09/29/2006)
438 EXHIBITS Ex. Y−1525 2 of 3 Re 389 filed byCostco Wholesale Corporation. (Anastasia, Damon) (Filed on 9/29/2006) (Entered: 09/29/2006)
439 EXHIBITS Ex. Y−1525 3 of 3 Re 389 filed byCostco Wholesale Corporation. (Anastasia, Damon) (Filed on 9/29/2006) (Entered: 09/29/2006)
440 Proposed Order Granting Defendant's Motion to Strike Reskin Decl. by Costco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
441 Proposed Order Granting Defendant's Motion to Strike the Dec of Mark Bendick by Costco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
442 EXHIBITS Ex. Y 1 of 2 Re 389 filed byCostco Wholesale Corporation. (Anastasia, Damon) (Filed on 9/29/2006) (Entered: 09/29/2006)
443 EXHIBITS Ex. Y 2 of 2 Re 389 filed byCostco Wholesale Corporation. (Anastasia, Damon) (Filed on 9/29/2006) (Entered: 09/29/2006)
444 EXHIBITS Ex U−1042 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
445 EXHIBITS Ex. U−1045 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)

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09/29/2006 09/29/2006 09/29/2006 09/30/2006 09/30/2006 09/30/2006 09/30/2006 09/30/2006 09/30/2006 09/30/2006 09/30/2006 09/30/2006 10/03/2006 10/04/2006 10/06/2006 10/06/2006 10/10/2006 10/16/2006
10/16/2006

446 Proposed Order Granting Defendant's Motion To Stike Drogin Declaration by Costco Wholesale Corporation. (Anastasia, Damon) (Filed on 9/29/2006) (Entered: 09/29/2006)
447 First MOTION to Strike Drogin Declaration filed by Costco Wholesale Corporation. Motion Hearing set for 11/6/2006 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/29/2006)
448 EXHIBITS D 144 1 of 2 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/29/2006) (Entered: 09/30/2006)
449 EXHIBITS D 136 Re 389 filed byCostco Wholesale Corporation. (Anastasia, Damon) (Filed on 9/30/2006) (Entered: 09/30/2006)
450 EXHIBITS Ex D 144 2 of 2 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/30/2006) (Entered: 09/30/2006)
451 EXHIBITS Ex. E Re 389 filed byCostco Wholesale Corporation. (Anastasia, Damon) (Filed on 9/30/2006) (Entered: 09/30/2006)
452 EXHIBITS Ex J 1 of 6 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/30/2006) (Entered: 09/30/2006)
453 EXHIBITS Ex J 2 of 6 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/30/2006) (Entered: 09/30/2006)
454 EXHIBITS J 3 of 6 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/30/2006) (Entered: 09/30/2006)
455 EXHIBITS J 4 of 6 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/30/2006) (Entered: 09/30/2006)
456 EXHIBITS J 5 of 6 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/30/2006) (Entered: 09/30/2006)
457 EXHIBITS J 6 of 6 Re 389 filed byCostco Wholesale Corporation. (Kaufman, Thomas) (Filed on 9/30/2006) (Entered: 09/30/2006)
458 STIPULATION AND ORDER sealing defendant's request for judicial notice of Leah Horstman's Divorce records; Signed by Judge Marilyn Hall Patel on 10/2/2006. (awb, COURT−STAFF) (Filed on 10/3/2006) (Entered: 10/03/2006)
459 NOTICE of Filing Documents Under Seal in support of opposition to plaintiff's motion for class certification by Costco Wholesale Corporation (gba, COURT STAFF) (Filed on 10/4/2006) (slhS, COURT STAFF). (Entered: 10/04/2006)
460 Letter from Brad Seligman In re: Conference Call October 10, 2006 at 1:00 p.m.. (Seligman, Brad) (Filed on 10/6/2006) (Entered: 10/06/2006)
461 Letter from David Kadue of Seyfarth Shaw Plaintiff's Request to Re−open Discovery. (Kaufman, Thomas) (Filed on 10/6/2006) (Entered: 10/06/2006)
462 Minute Entry: Discovery Hearing held on 10/10/2006 before Hon. Marilyn Hall Patel (Date Filed: 10/10/2006). (Court Reporter Katherine Powell.) (awb, COURT−STAFF) (Date Filed: 10/10/2006) (Entered: 10/10/2006)
463 Memorandum in Opposition to Costco's Motions to Strike Declarations of Plaintiffs' Experts filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit Supplemental Declaration of Dr. Richard Drogin# 2 Exhibit Supplemental Declaration of Marc Bendick, Jr., Ph.D.# 3 Exhibit Supplemental Declaration of Barbara F. Reskin, Ph.D.)(Seligman, Brad) (Filed on 10/16/2006) (Entered: 10/16/2006)
464 DECLARATION of Jocelyn D. Larkin in Support of 463 Opposition to Costco's Motions to Strike Declarations of Plaintiffs' Experts filed by Shirley "Rae" Ellis. (Attachments: # 1 Exhibit 1− Saad Deposition Excerpts# 2 Exhibit 2− Landy Deposition Excerpts# 3 Exhibit 3− Gaherty Deposition Excerpts# 4 Exhibit 4− Sample Promotable Lists# 5 Exhibit 5− Excerpts from "Women and Men in Organizations")(Seligman, Brad) (Filed on 10/16/2006) Modified on 10/18/2006 (gba, COURT STAFF). (Entered: 10/16/2006)

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10/20/2006 10/20/2006 10/20/2006
10/20/2006 10/20/2006 10/20/2006 10/20/2006 10/20/2006 10/20/2006 10/20/2006
10/20/2006

465 Reply BRIEF in Support of Class Certification filed byShirley "Rae" Ellis. (Seligman, Brad) (Filed on 10/20/2006) Modified on 10/23/2006 (gba, COURT STAFF). (Entered: 10/20/2006)
466 DECLARATION of Jocelyn Larkin in Support of 465 Plaintiffs' Reply Brief in Support of Class Certification filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit 41− Webb Deposition Excerpts# 2 Exhibit 42− Gaherty Deposition Excerpts# 3 Exhibit 43− Omoss Deposition Excerpts# 4 Exhibit 44− Zook Deposition Excerpts# 5 Exhibit 45− Davis Deposition Excerpts)(Seligman, Brad) (Filed on 10/20/2006) Modified on 10/23/2006 (gba, COURT STAFF). (Entered: 10/20/2006)
467 EXHIBITS re 466 Declaration of Jocelyn Larkin in Support of Motion, Exhibit 46− DiCerchio Deposition Excerpts filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit 47− Sinegal Deposition Excerpts# 2 Exhibit 48− Saad Deposition Excerpts# 3 Exhibit 49− Horstman Deposition Excerpts# 4 Exhibit 50− Operations Committee Minutes# 5 Exhibit 51− Sample Promotable Lists)(Related document(s) 466 ) (Seligman, Brad) (Filed on 10/20/2006) Modified on 10/23/2006 (gba, COURT STAFF). (Entered: 10/20/2006)
468 EXHIBITS re 466 Declaration of Jocelyn D. Larkin in Support of Motion, Exhibit 52− Zook Deposition Corrections filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit 53− Email Re Zook Deposition Corrections# 2 Exhibit 54− EEOC Letter to Kadue# 3 Errata 55− Kadue Letter to EEOC# 4 Exhibit 56− Neal v. Moore Part 1 of 2# 5 Exhibit 56− Neal v. Moore Part 2 of 2)(Related document(s) 466 ) (Seligman, Brad) (Filed on 10/20/2006) Modified on 10/23/2006 (gba, COURT STAFF). (Entered: 10/20/2006)
469 Motion to Strike Declarations Submitted in Opposition to Plaintiffs' Motion for Class Certification filed by Shirley "Rae" Ellis. Motion Hearing set for 11/7/2006 09:00 AM in Courtroom 15, 18th Floor, San Francisco. (Seligman, Brad) (Filed on 10/20/2006) Modified on 10/23/2006 (gba, COURT STAFF). (Entered: 10/20/2006)
470 Declaration of Brad Seligman in Support of 469 laintiffs' Motion to Strike Declarations Submitted in Opposition to Plaintiffs' Motion for Class Certification filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Related document(s) 469 ) (Seligman, Brad) (Filed on 10/20/2006) Modified on 10/23/2006 (gba, COURT STAFF). (Entered: 10/20/2006)
471 Declaration of Sarah Varela in Support of 469 Plaintiffs' Motion to Strike Declarations Submitted in Opposition to Plaintiffs' Motion for Class Certification filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s) 469 ) (Seligman, Brad) (Filed on 10/20/2006) Modified on 10/23/2006 (gba, COURT STAFF). (Entered: 10/20/2006)
472 Proposed Order re 469 Motion to Strike Declarations Submitted in Opposition to Plaintiffs' Motion for Class Certification by Shirley "Rae" Ellis. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Seligman, Brad) (Filed on 10/20/2006) Modified on 10/23/2006 (gba, COURT STAFF). (Entered: 10/20/2006)
473 Motion for Order Clarifying Procedures for Adjudication of Plaintiff's Motion for Class Certification (At the Court's Earliest Convenience in Advance of the Hearing Date of November 7, 2006) filed by Costco Wholesale Corporation. Motion Hearing set for 11/7/2006 09:00 AM in Courtroom 15, 18th Floor, San Francisco. (Kadue, David) (Filed on 10/20/2006) Modified on 10/23/2006 (gba, COURT STAFF). (Entered: 10/20/2006)
474 Brief In Support of 473 Motion for Order Clarifying Procedures for Adjudication of Plaintiff's Motion for Class Certification filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 1 Press Release# 2 Exhibit News Article# 3 Exhibit New Article# 4 Exhibit News Article# 5 Exhibit January# 6 Exhibit Seligman# 7 Exhibit Kadue Letter# 8 Exhibit Seligman Letter# 9 Exhibit Kadue Letter# 10 Exhibit Declaration of Gerald Maatman# 11 Exhibit Email# 12 Exhibit Court Minutes# 13 Exhibit Dec 2006)(Kadue, David) (Filed on 10/20/2006) Modified on 10/23/2006 (gba, COURT STAFF). (Entered: 10/20/2006)
475 Proposed Order Granting 473 Motion for Order Clarifying Procedures for Adjudication of Plaintiffs' Motion for Class Certification by Costco Wholesale Corporation. (Kadue, David) (Filed on 10/20/2006) Modified on 10/23/2006 (gba, COURT STAFF). (Entered: 10/20/2006)

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10/23/2006 10/23/2006 10/23/2006 10/23/2006 10/23/2006 10/24/2006 10/25/2006 10/25/2006 10/27/2006 10/27/2006
10/31/2006

476 EXHIBIT 4 re 470 Declaration by Brad Seligman by Shirley "Rae" Ellis. (Seligman, Brad) (Filed on 10/23/2006) Modified on 10/24/2006 (gba, COURT STAFF). (Entered: 10/23/2006)
477 DUPLICATE ENTRY, PLEASE SEE DOCUMENT NUMBER 476 ERRATA re 470 Declaration in Support, Exhibit 4 by Shirley "Rae" Ellis. (Seligman, Brad) (Filed on 10/23/2006) Modified on 10/24/2006 (gba, COURT STAFF). (Entered: 10/23/2006)
478 *** FILED IN ERROR. PLEASE DISREGARD. *** Reply Memorandum in Support of Motions to Strike Drogin, Bendick, Reskin Declarations filed byCostco Wholesale Corporation. (Kadue, David) (Filed on 10/23/2006) Modified on 10/24/2006 (feriab, COURT STAFF). (Entered: 10/23/2006)
479 SUPPLEMENTAL Declaration of David Kadue in Support of 435 MOTION to Strike Reskin, Drogin and Bendick Declarations filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 10/23/2006) Modified on 10/24/2006 (gba, COURT STAFF). (Entered: 10/23/2006)
480 Reply Memorandum re 435 First MOTION to Strike Reskin Declaration and Motions to Strike Bendick, Drogin Declarations filed byCostco Wholesale Corporation. (Kadue, David) (Filed on 10/23/2006) (Entered: 10/23/2006)
481 STIPULATION and Proposed Order Regarding Briefing Schedule for Motions Related to Class Certification Hearing by Shirley "Rae" Ellis. (Seligman, Brad) (Filed on 10/24/2006) (Entered: 10/24/2006)
482 ORDER CLARIFYING THAT WHICH NEED NOT BE CLARIFIED 473 by Judge Marilyn Hall Patel (awb, COURT−STAFF) (Filed on 10/25/2006) (Entered: 10/25/2006)
483 STIPULATION re 469 Motion to Strike Declarations Submitted in Opposition to Plaintiffs' Motion for Class Certification To Withdraw Portions of Declarations and to Withdraw Plaintiffs' Motion to Strike by Costco Wholesale Corporation. (Kadue, David) (Filed on 10/25/2006) (Entered: 10/25/2006)
484 STIPULATION re 469 Motion to Strike Declarations Submitted in Opposition to Plaintiffs' Motion for Class Certification Withdrawing Portions of Declarations and Withdrawing Motion to Strike by Costco Wholesale Corporation. (Kadue, David) (Filed on 10/27/2006) (Entered: 10/27/2006)
485 Memorandum in Opposition re 469 Motion to Strike Declarations Submitted in Opposition to Plaintiffs' Motion for Class Certification , with 12 Exhibits, filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit Seligman Email 9/22/06# 2 Exhibit Seligman Letter to Court# 3 Exhibit Kadue Letter to Court# 4 Exhibit 8/17/04 press release# 5 Exhibit 8/18/04 news article# 6 Exhibit 9/20/04 news article# 7 Exhibit 9/8/06 news article# 8 Exhibit 1/06 Plantiffs' letter to putative class# 9 Exhibit 12/05 email re class list# 10 Exhibit Kadue 10/3/06 email to Seligman# 11 Exhibit Joan Anderson Declaration# 12 Exhibit Impact Fund website)(Kadue, David) (Filed on 10/27/2006) (Entered: 10/27/2006)
486 STIPULATION AND ORDER, re: 483 , 484 . Stipulation is reached regarding language in putative class member declarations; and the weight to be given such declarations. Plaintiffs withdraw motion to strike 469 and defendant withdraws motion for clarification [previously terminated]. 10/10/06 Minute Order moot. Costco not to produce declarants at class certification hearing. Plaintiffs' motion for class certification and Costco's motions to strike plaintiff's expert declarations will be heard 11/7/06 at 9:00 a.m. Declaration of Joni Hammer filed nunc pro tunc to 9/29/06. ADDITIONALLY, THE COURT ORDERS THAT AFTER THE HEARING THE COURT MAY REQUEST TESTIMONY IF IT FINDS IT NECESSARY. THE COURT FURTHER UNDERSTANDS THAT AS A RESULT OF THIS STIPULATION NO RULE 30(B)(6) WITNESS WIL BE DEPOSED WITH RESPECT TO PREPARATION OF MATTERS RELATED TO THE DEFENDANTS DECLARATIONS IN OPPOSITION TO THIS MOTION, EXCEPT AS MAY BE ORDERED BY THE COURT. Motions terminated: 469 . Signed by Judge Marilyn Hall Patel on 10/31/06. (epb, COURT STAFF) (Filed on 10/31/2006) (Entered: 10/31/2006)

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11/02/2006
11/03/2006 11/03/2006 11/08/2006 11/30/2006 01/04/2007 01/10/2007 01/11/2007
01/11/2007 01/11/2007 01/12/2007 01/16/2007 03/15/2007 04/09/2007 04/09/2007
04/09/2007

487 Declaration of Joni Hammer Submitted Nunc Pro Tunc per Court Order of 10/31/06 486 Stipulation and Order,,,,, Terminate Motions,,,,, 434 Memorandum in Opposition Joni Hammer Declaration re Plaintiffs' Class Cert Motion, per Order at No. 486, filed by Costco Wholesale Corporation. (Related document(s) 486 , 434 ) (Kadue, David) (Filed on 11/2/2006) Modified on 11/7/2006 (gba, COURT STAFF). (Entered: 11/02/2006)
488 STIPULATION re AV Equipment for Class Cert. Hearing by Shirley "Rae" Ellis. (Seligman, Brad) (Filed on 11/3/2006) (Entered: 11/03/2006)
489 STIPULATION AND ORDER permitting the parties to bring and use audio−visual equipment for use at 11/7/06 hearing, bringing equipment into courthouse 11/6/06. Signed by Judge Marilyn Hall Patel on 11/1/06. (epb, COURT STAFF) (Filed on 11/3/2006) (Entered: 11/03/2006)
490 Minute Entry: Motion Hearing held on 11/7/2006 before Hon. Marilyn Hall Patel (Date Filed: 11/8/2006) re 469 Motion to Strike Declarations; 127 MOTION to Certify Class (Court Reporter Kathy Wyatt.) (awb, COURT−STAFF) (Date Filed: 11/8/2006) (Entered: 11/08/2006)
491 TRANSCRIPT of Proceedings held on 11/28/05 before Judge Patel. Court Reporter: Michael J. Shintaku.. (far, COURT STAFF) (Filed on 11/30/2006) (Entered: 12/04/2006)
492 STIPULATION re 127 First MOTION to Certify Class and to Appoint Class Counsel And Briefing New Case Re Same by Costco Wholesale Corporation. (Kadue, David) (Filed on 1/4/2007) (Entered: 01/04/2007)
493 NOTICE by Shirley "Rae" Ellis NOTICE OF CHANGE OF FIRM (Lee, Bill) (Filed on 1/10/2007) (Entered: 01/10/2007)
494 ORDER by Judge Marilyn Hall Patel denying 435 Motion to Strike, denying 436 Motion to Strike, granting in part and denying in part 447 Motion to Strike, granting 127 Motion to Certify Class. Class certified. Class representatives named. Plaintiffs' counsel is counsel for the class. Counsel directed to confer and submit proposed class notice within 30 days of date of order. Signed by Judge Marilyn Hall Patel 1/10/07. (epb, COURT STAFF) (Filed on 1/11/2007) (Entered: 01/11/2007)
495 NOTICE of Appearance by Daniel Hutchinson (Hutchinson, Daniel) (Filed on 1/11/2007) (Entered: 01/11/2007)
496 NOTICE of Appearance by Kelly M. Dermody (Dermody, Kelly) (Filed on 1/11/2007) (Entered: 01/11/2007)
497 STIPULATION AND ORDER − Court finds further briefing unnecessary. Signed by Judge Marilyn Hall Patel on 1/11/07. (epb, COURT STAFF) (Filed on 1/12/2007) (Entered: 01/12/2007)
498 NOTICE of Change of Address by James M. Finberg (Finberg, James) (Filed on 1/16/2007) (Entered: 01/16/2007)
499 TRANSCRIPT of Proceedings held on 11/7/06 before Judge Marilyn H. Patel. Court Reporter: Katherine Wyatt. (gba, COURT STAFF) (Filed on 3/15/2007) (Entered: 03/15/2007)
500 MOTION for Class Notice and for Regulation of Costco's Communications with Class Members filed by Shirley "Rae" Ellis. Motion Hearing set for 5/7/2007 02:00 PM. (Attachments: # 1 Exhibit 1)(Seligman, Brad) (Filed on 4/9/2007) (Entered: 04/09/2007)
501 Declaration of Jocelyn D. Larkin in Support of 500 MOTION for Class Notice and for Regulation of Costco's Communications with Class Members filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7)(Related document(s) 500 ) (Seligman, Brad) (Filed on 4/9/2007) (Entered: 04/09/2007)
502 Proposed Order re 500 MOTION for Class Notice and for Regulation of Costco's Communications with Class Members by Shirley "Rae" Ellis. (Attachments: # 1 Exhibit 1)(Seligman, Brad) (Filed on 4/9/2007) (Entered: 04/09/2007)

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04/09/2007 04/11/2007
04/18/2007
04/23/2007 04/23/2007
05/11/2007
05/15/2007
05/17/2007 05/17/2007 06/01/2007 10/04/2007 10/15/2007 10/15/2007 10/30/2007 10/30/2007 04/10/2008 07/19/2010

503 STIPULATION re 500 MOTION for Class Notice and for Regulation of Costco's Communications with Class Members Stipulation and Proposed Order Re Briefing by Shirley "Rae" Ellis. (Seligman, Brad) (Filed on 4/9/2007) (Entered: 04/09/2007)
504 STIPULATION AND ORDER regarding notice and briefing schedule for plaintiffs' motion for class notice and regulation of communications; Signed by Judge Marilyn Hall Patel on 4/11/2007. (awb, COURT−STAFF) (Filed on 4/11/2007) (Entered: 04/11/2007)
505 Memorandum in Opposition re 500 MOTION for Class Notice and for Regulation of Costco's Communications with Class Members and Exhibits 1−3 filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Kadue, David) (Filed on 4/18/2007) (Entered: 04/18/2007)
506 Reply to Opposition to Plaintiffs' Motion for Class Notice and for Regulation of Costco's Communications with Class Members filed byShirley "Rae" Ellis. (Larkin, Jocelyn) (Filed on 4/23/2007) (Entered: 04/23/2007)
507 Declaration of Jocelyn D. Larkin in Support of 506 Reply to Opposition to Plaintiffs' Motion for Class Notice and for Regulation of Costco's Communications with Class Members filed byShirley "Rae" Ellis. (Attachments: # 1 Exhibit 8# 2 Exhibit 9# 3 Exhibit 10# 4 Exhibit 11# 5 Exhibit 12)(Related document(s) 506 ) (Larkin, Jocelyn) (Filed on 4/23/2007) (Entered: 04/23/2007)
510 ORDER of USCA 07−80006, the court, in its discretion, grants the petition for permission to appeal the district court's 1/11/07 order granting class action certification. Within 10 days of this order, petitioner shall perfect the appeal in accordance with Federal Rule of Appellate Procedure 5(d). (gba, COURT STAFF) (Filed on 5/11/2007) (Entered: 05/17/2007)
508 Minute Entry: Motion Hearing held on 5/14/2007 before Judge Marilyn Hall Patel (Date Filed: 5/15/2007) re 500 MOTION for Class Notice and for Regulation of Costco's Communications with Class Members; Telephonic Status Conference set for 5/17/2007 02:30 PM;(Court Reporter Juanita Gonzales.) (awb, COURT−STAFF) (Date Filed: 5/15/2007) (Entered: 05/15/2007)
509 STIPULATION and [Proposed] Order Regarding Class Definition, Class Notice and for Regulation of Costco's Communications by Shirley "Rae" Ellis. (Larkin, Jocelyn) (Filed on 5/17/2007) (Entered: 05/17/2007)
Filing fee: $ 455.00, receipt number 34611006453 for Notice of Appeal filed directly to the Ninth Circuit. (gba, COURT STAFF) (Filed on 5/17/2007) (Entered: 11/06/2007)
511 STIPULATION AND ORDER re class definition, class notice, and regulations of Costco's communications; Signed by Judge Marilyn Hall Patel on 5/31/2007. (awb, COURT−STAFF) (Filed on 6/1/2007) (Entered: 06/01/2007)
512 NOTICE by Leah Horstman, Shirley "Rae" Ellis Notice of Withdrawal from Case (Hazam, Lexi) (Filed on 10/4/2007) (Entered: 10/04/2007)
513 Transcript Designation and Ordering Form by Costco Wholesale Corporation for proceedings held on 11/7/06 before Judge Marilyn H. Patel (gba, COURT STAFF) (Filed on 10/15/2007) (slhS, COURT STAFF). (Entered: 10/15/2007)
514 Certificate of Record Mailed to USCA (07−15838). (gba, COURT STAFF) (Filed on 10/15/2007) (Entered: 10/15/2007)
515 NOTICE of Appearance by Bill Lann Lee NOTICE OF APPEARANCE BY JULIA CAMPINS (Lee, Bill) (Filed on 10/30/2007) (Entered: 10/30/2007)
516 NOTICE of Appearance by Bill Lann Lee NOTICE OF APPEARANCE BY LINDSAY NAKO (Lee, Bill) (Filed on 10/30/2007) (Entered: 10/30/2007)
517 Certified and Transmitted Record on Appeal to US Court of Appeals (Transcripts Only). (gba, COURT STAFF) (Filed on 4/10/2008) (Entered: 04/10/2008)
518 ORDER of USCA re 07−15838 notice of appeal. (gba, COURT STAFF) (Filed on 7/19/2010) (Entered: 07/19/2010)

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07/19/2010 08/04/2010 08/26/2010 11/19/2010 12/17/2010 05/20/2011 09/21/2011 09/21/2011
09/29/2011 09/29/2011 12/23/2011 02/14/2012 02/16/2012
02/21/2012
02/21/2012 02/21/2012
02/23/2012 02/29/2012 03/12/2012

519 ORDER of USCA that the case is resubmitted re 07−15838 notice of appeal. (gba, COURT STAFF) (Filed on 7/19/2010) (Entered: 07/19/2010)
520 Order of USCA re 07−15838 notice of appeal. (gba, COURT STAFF) (Filed on 8/4/2010) (Entered: 08/04/2010)
521 NOTICE of Change of Address by Bill Lann Lee (Lee, Bill) (Filed on 8/26/2010) (Entered: 08/26/2010)
522 USCA Order re 07−15838. (gba, COURT STAFF) (Filed on 11/19/2010) (Entered: 11/19/2010)
523 ORDER of USCA re 07−15838 (gba, COURT STAFF) (Filed on 12/17/2010) (Entered: 12/17/2010)
524 ORDER STATISTICALLY CLOSING ACTION; Signed by Judge Marilyn Hall Patel on 5/20/2011.(awb, COURT STAFF) (Filed on 5/20/2011) (Entered: 05/20/2011)
525 ORDER of USCA re 07−15838 that this case is ordered resubmitted. (gba, COURT STAFF) (Filed on 9/21/2011) (Entered: 09/21/2011)
526 OPINION OF USCA re 07−15838 AFFIRMING in part, VACATING in part, REMANDED. (gba, COURT STAFF) (Filed on 9/21/2011) (Additional attachment(s) added on 6/21/2012: # 1 USCA Mandate) (gba, COURT STAFF). (Additional attachment(s) added on 6/21/2012: # 2 Clerk's Spreading Mandate) (gba, COURT STAFF). (Entered: 09/21/2011)
527 ORDER of USCA re 07−15838. (gba, COURT STAFF) (Filed on 9/29/2011) (Entered: 09/29/2011)
528 ORDER of USCA re 07−15838. (gba, COURT STAFF) (Filed on 9/29/2011) (Entered: 09/29/2011)
Appeal Record Returned: (gba, COURT STAFF) (Filed on 12/23/2011) (Entered: 12/23/2011)
529 MOTION for Hearing (Request For) Status Conference filed by Shirley "Rae" Ellis, Leah Horstman. (Larkin, Jocelyn) (Filed on 2/14/2012) (Entered: 02/14/2012)
530 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Edward M. Chen for all further proceedings. Judge Hon. Marilyn H. Patel no longer assigned to the case. Signed by Executive Committee on 02/16/12. (mab, COURT STAFF) (Filed on 2/16/2012) (Entered: 02/16/2012)
531 CASE MANAGEMENT SCHEDULING ORDER: Case Management Conference set for 2/24/2012 09:00 AM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge Edward M. Chen on 2/21/12. (bpf, COURT STAFF) (Filed on 2/21/2012) (Entered: 02/21/2012)
532 STANDING ORDER. Signed by Judge Edward M. Chen on 2/21/12. (bpf, COURT STAFF) (Filed on 2/21/2012) (Entered: 02/21/2012)
533 AMENDED CASE MANAGEMENT SCHEDULING ORDER: Case Management Statement due by 3/2/2012. Case Management Conference reset for 3/9/2012 09:00 AM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge Edward M. Chen on 2/21/12. (bpf, COURT STAFF) (Filed on 2/21/2012) (Entered: 02/21/2012)
534 CERTIFICATE OF SERVICE by Shirley "Rae" Ellis, Leah Horstman (Larkin, Jocelyn) (Filed on 2/23/2012) (Entered: 02/23/2012)
535 JOINT CASE MANAGEMENT STATEMENT filed by Costco Wholesale Corporation, Shirley "Rae" Ellis, Leah Horstman. (Larkin, Jocelyn) (Filed on 2/29/2012) (Entered: 02/29/2012)
536 Minute Entry: Initial Case Management Conference held on 3/9/2012 before Edward M. Chen. Plaintiffs shall file an amended complaint by 3/23/12. Defendants motion to dismiss/strike, if any, shall be filed by 4/6/12. Plaintiffs opposition shall be filed by 4/20/12. Defendants reply shall be filed by 4/27/12. Hearing on Defendants motion is scheduled for 5/18/12 at 1:30 p.m. Further CMC is also set for 5/18/12 at 1:30 p.m. An updated joint CMC Statement shall be filed by 5/11/12. Defendant shall inform the

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03/12/2012
03/23/2012 04/06/2012 04/11/2012 04/12/2012 04/27/2012 05/01/2012 05/04/2012
05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012

Court if it does not file the motion so the Court may advance the Further CMC to an earlier date.(Date Filed: 3/12/2012). () (bpf, COURT STAFF) (Date Filed: 3/12/2012) (Entered: 03/12/2012)
Set/Reset Hearings:, Set/Reset Deadlines: Further Case Management Conference set for 5/18/2012 01:30 PM in Courtroom 5, 17th Floor, San Francisco. Motion Hearing set for 5/18/2012 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Case Management Statement due by 5/11/2012. Motions due by 4/6/2012. (bpf, COURT STAFF) (Filed on 3/12/2012) (Entered: 03/12/2012)
537 AMENDED COMPLAINT Third Amended Complaint against All Plaintiffs. Filed byShirley "Rae" Ellis, Leah Horstman. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Larkin, Jocelyn) (Filed on 3/23/2012) (Entered: 03/23/2012)
538 Answer to Amended Complaint 537 Amended Complaint, Answer to Plaintiffs' Third Amended Complaint byCostco Wholesale Corporation. (Kadue, David) (Filed on 4/6/2012) (Entered: 04/06/2012)
539 STIPULATION re 536 Case Management Conference − Initial,, Set/Reset Hearings, Set/Reset Deadlines,, filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 4/11/2012) (Entered: 04/11/2012)
540 ORDER re 539 Stipulation filed by Costco Wholesale Corporation Case Management Statement due by 5/1/2012. Case Management Conference specially set for 5/8/2012 01:15 PM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge Edward M. Chen on 4/12/12. (bpf, COURT STAFF) (Filed on 4/12/2012) (Entered: 04/12/2012)
541 Defendant's First Amended ANSWER to Amended Complaint (Third Amended) byCostco Wholesale Corporation. (Kadue, David) (Filed on 4/27/2012) (Entered: 04/27/2012)
542 CASE MANAGEMENT STATEMENT filed by Shirley "Rae" Ellis, Leah Horstman. (Larkin, Jocelyn) (Filed on 5/1/2012) (Entered: 05/01/2012)
543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. Motion Hearing set for 6/8/2012 01:30 PM in Courtroom C, 15th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 5/18/2012. Replies due by 5/25/2012. (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
544 Declaration of David Kadue in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Attachments: # 1 Exhibit A−Z)(Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
545 EXHIBITS re 544 Declaration in Support of 543 Motion for an Order Eliminating Class Claims (Exh. AA) filed by Costco Wholesale Corporation. (Related document(s) 544 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
546 EXHIBITS re 544 Declaration in Support of 543 Motion for Order Eliminating Class Claims (Exhs. BB Pt. 1 of 3) filed by Costco Wholesale Corporation. (Related document(s) 544 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
547 EXHIBITS re 544 Declaration in Support of 543 Motion for an Order Eliminating Class Claims (Exhs. BB Pt. 2 of 3) filed by Costco Wholesale Corporation. (Related document(s) 544 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
548 EXHIBITS re 544 Declaration in Support of 543 Motion For an Order Eliminating Class Claims (Exh BB Part 3a of 3) filed by Costco Wholesale Corporation. (Related document(s) 544 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
549 EXHIBITS re 544 Declaration in Support, of 543 Motion for an Order Eliminating Class Claims (Exh BB Pt. 3b of 3) filed by Costco Wholesale Corporation. (Related

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 37 of 65

05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012

document(s) 544 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
550 Declaration of Carolyn Adams in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
551 Declaration of Maria Alvarez in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
552 Declaration of Joan Anderson in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
553 Declaration of Stacey Arredondo in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
554 Declaration of Pat Asch in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
555 Declaration of Geri Auerbach in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
556 Declaration of Jennifer Berry in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
557 Declaration of Deborah Bolger in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
558 Declaration of John F. Booth in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
559 Declaration of Jane Cafiso in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
560 Declaration of Marion Cali in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
561 Declaration of Fidel Cardoso in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
562 Declaration of Cindy Cherneski in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 38 of 65

05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012

563 Declaration of Kerry Cline in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
564 Declaration of Claudia Consla in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
565 Declaration of Kristen D'Agostino in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
566 Declaration of Shawn Durham in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
567 Declaration of Julie Eringer in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
568 Declaration of Nak−He Evans in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
569 Declaration of Patricia Foster in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
570 Declaration of Meredith Fox in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
571 Declaration of John Gaherty in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
572 Declaration of Karen Garcia in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
573 Declaration of Leslie Garlach in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
574 Declaration of Debra George in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
575 Declaration of Heidi Gibson in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
576 Declaration of Kathleen Gonzales in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh,

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 39 of 65

05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012

COURT STAFF). (Entered: 05/04/2012)
577 Declaration of Tonya Gonzalez in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
578 Declaration of Darby Greek in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
579 Declaration of Jennifer van Guilder in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
580 Declaration of Carolyn Hagemeyer in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
581 Declaration of Joni Hammer in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
582 Declaration of Tanya Hekkala in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
583 Declaration of Helene Hickey in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
584 Declaration of Gail Hinds in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
585 Declaration of Ofrandi Hoenninger in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
586 Declaration of Dennis Hoover in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
587 Declaration of Lynn Hurbace in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
588 Declaration of Lucinda Johnson in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
589 Declaration of Nora Jovel in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)

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590 Declaration of Katrina Morgan in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
591 Declaration of June Klein in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
592 Declaration of Bobette Laureano in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
593 Declaration of Vicki Lemon in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
594 Declaration of Tammy Loveland in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
595 Declaration of Brenda Lyons in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
596 Declaration of Alisa Manning in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
597 Declaration of Chandni Manooa in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
598 Declaration of Michelle Mar in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
599 Declaration of Candiese Mattern in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
600 Declaration of John Matthews in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
601 Declaration of Melodi McCoy in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
602 Declaration of Melissa McCurdy in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
603 Declaration of Lori Medina in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF).

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05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012

(Entered: 05/04/2012)
604 Declaration of Katharine Mendoza in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
605 Declaration of Kristine Molnar in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
606 Declaration of Lori Monaco in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
607 Declaration of Laura Moore in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
608 Declaration of Anita Morgan in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
609 Declaration of Robert E. Nelson in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
610 Declaration of Georgia Nierstheimer in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
611 Declaration of Mario Omoss in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
612 Declaration of Gina M. Pascale in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
613 Declaration of Kimberly Perry in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
614 Declaration of Joan Peterson in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
615 Declaration of Melanie Petty in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
616 Declaration of Delores Pfeffer−Smith in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)

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05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012

617 Declaration of Joseph Portera in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
618 Declaration of Jeanne Rosolino in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
619 Declaration of Ali Saad in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Attachments: # 1 Exhibit)(Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
620 Declaration of Ali Saad (Second Decl.) in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Attachments: # 1 Exhibit)(Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
621 Declaration of Sandra Smith in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
622 Declaration of Angela Schaublin in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
623 Declaration of Douglas W. Schutt in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
624 Declaration of Tanya Spence in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
625 Declaration of Stephanie Tagai in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
626 Declaration of Suzanne Tullo in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
627 Declaration of Ron Vachris in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
628 Declaration of Judy Vadney in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
629 Declaration of Zoya Vlady in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
630 Declaration of Anna Wallace in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF).

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 43 of 65

05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012
05/04/2012 05/04/2012

(Entered: 05/04/2012)
631 Declaration of Sonia Ward in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
632 Declaration of Jacqueline Whitney in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
633 Declaration of Michelle Williams in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
634 Declaration of Andrea "Carlee" Wunderlich in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
635 Declaration of Monica Zavala in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
636 Declaration of Nina Borgner (Pt. 1 of 2) in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
637 Declaration of Nina Borgner (Pt. 2 of 2) in Support of 636 Declaration in Support of Motion for Order Eliminating Class Allegations filed byCostco Wholesale Corporation. (Related document(s) 636 ) (Kadue, David) (Filed on 5/4/2012) (Entered: 05/04/2012)
638 Declaration of Lynda Bejarano (Pt. 1 of 2) in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
639 Declaration of Lynda Bejarano (Pt. 2a of 2) in Support of 638 Declaration in Support filed byCostco Wholesale Corporation. (Related document(s) 638 ) (Kadue, David) (Filed on 5/4/2012) (Entered: 05/04/2012)
640 Declaration of Lynda Bejarano in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
641 Declaration of Richard Drogin in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4, # 5 Appendix 5, # 6 Appendix 6, # 7 Appendix 7, # 8 Appendix 8, # 9 Appendix 9)(Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
642 Declaration of Laura Churillo in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
643 Declaration of Julie Cruz in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)

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05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012 05/04/2012

644 Declaration of Deborah Meyer in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
645 Declaration of Kristin Padgett in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
646 Declaration of Lynn Poser in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
647 Declaration of Casey B. Mulligan, Ph.D., in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
648 Declaration of Elaine Sasaki in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
649 Declaration of Karen Sitero in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
650 Declaration of Margaret Stockdale in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
651 Declaration of Tammy Wagner in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
652 Declaration of Richard Webb in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
653 Declaration of Dennis Zook in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
654 Declaration of Shirley "Rae" Ellis in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
655 Declaration of Frank J. Landy, Ph.D. in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
656 Declaration of Leah Horstman in Support of 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Related document(s) 543 ) (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)

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05/04/2012 05/08/2012
05/22/2012 05/23/2012 06/01/2012 06/04/2012
06/06/2012 06/08/2012 06/08/2012
06/08/2012 06/08/2012

657 Proposed Order re 543 MOTION for an Order Eliminating Class Claims by Costco Wholesale Corporation. (Kadue, David) (Filed on 5/4/2012) Modified on 5/7/2012 (slh, COURT STAFF). (Entered: 05/04/2012)
658 Minute Entry: Further Case Management Conference held on 5/8/2012 before Edward M. Chen The hearing on Defendants motion for an order eliminating class claims (Docket #543) set for 6/8/12 is hereby vacated. Plaintiffs opposing and cross−motion is due 6/8/12. Defendants reply and opposition to cross−motion is due 6/29/12. Plaintiffs reply is due 7/13/12. Motion(s) hearing is set for 7/27/12 at 1:30 p.m. (Date Filed: 5/8/2012). (Court Reporter Margo Gurule.) (bpf, COURT STAFF) (Date Filed: 5/8/2012) (Entered: 05/08/2012)
659 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971−6838391.) filed by Costco Wholesale Corporation. (Attachments: # 1 Proposed Order Granting Application for Admission of Attorney Pro Hac Vice)(Kadue, David) (Filed on 5/22/2012) (Entered: 05/22/2012)
660 ORDER by Judge Edward M. Chen granting 659 Motion for Pro Hac Vice (Tyman) (bpf, COURT STAFF) (Filed on 5/23/2012) (Entered: 05/23/2012)
661 STIPULATION WITH PROPOSED ORDER Regarding Briefing on Rule 23 Motions filed by Shirley "Rae" Ellis, Leah Horstman. (Larkin, Jocelyn) (Filed on 6/1/2012) (Entered: 06/01/2012)
662 STIPULATION AND ORDER re 661 Regarding Briefing on Rule 23 Motions filed by Shirley "Rae" Ellis, Leah Horstman, Set/Reset Deadlines as to 661 STIPULATION WITH PROPOSED ORDER Regarding Briefing on Rule 23 Motions, 543 MOTION for an Order Eliminating Class Claims. Responses due by 6/8/2012. Ps' reply in support of class certification by 7/13/12. Replies due by 6/29/2012.. Signed by Judge Edward M. Chen on 6/4/12. (bpf, COURT STAFF) (Filed on 6/4/2012) (Entered: 06/04/2012)
663 CLERKS NOTICE resetting motion #543 FROM 7/27/12 TO 7/31/12 AT 1:30 P.M. as to 543 MOTION for an Order Eliminating Class Claims. Motion Hearing set for 7/31/2012 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Briefing schedule remains the same as previously set. This is a text only docket entry, there is no document associated with this notice. (bpf, COURT STAFF) (Filed on 6/6/2012) (Entered: 06/06/2012)
664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims filed by Shirley "Rae" Ellis, Leah Horstman. Motion Hearing set for 7/31/2012 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 6/22/2012. Replies due by 6/29/2012. (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)
665 Declaration of Jocelyn D. Larkin in Support of 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims filed byShirley "Rae" Ellis, Leah Horstman. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13 Part One, # 14 Exhibit 13 Part Two, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28)(Related document(s) 664 ) (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)
666 Declaration of Richard Drogin in Support of 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims filed byShirley "Rae" Ellis, Leah Horstman. (Related document(s) 664 ) (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)
667 Declaration of Richard Drogin in Support of 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims Supplemental Declaration of Richard Drogin filed byShirley "Rae" Ellis, Leah Horstman. (Related document(s) 664 ) (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 46 of 65

06/08/2012 06/08/2012 06/08/2012 06/08/2012 06/08/2012 06/08/2012 06/08/2012 06/08/2012 06/08/2012 06/08/2012

668 Declaration of Mark Bendick in Support of 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims filed byShirley "Rae" Ellis, Leah Horstman. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 664 ) (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)
669 Declaration of Mark Bendick in Support of 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims Supplemental Declaration of Mark Bendick filed byShirley "Rae" Ellis, Leah Horstman. (Related document(s) 664 ) (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)
670 Declaration of Barbara Reskin in Support of 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims filed byShirley "Rae" Ellis, Leah Horstman. (Related document(s) 664 ) (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)
671 Declaration of Shirley Rae Ellis in Support of 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims filed byShirley "Rae" Ellis, Leah Horstman. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Related document(s) 664 ) (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)
672 Declaration of Elaine Sasaki in Support of 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims filed byShirley "Rae" Ellis, Leah Horstman. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Related document(s) 664 ) (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)
673 Declaration of Leah Horstman in Support of 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims filed byShirley "Rae" Ellis, Leah Horstman. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Related document(s) 664 ) (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)
674 Declaration of Sandra Barnwell in Support of 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims filed byShirley "Rae" Ellis, Leah Horstman. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Related document(s) 664 ) (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)
675 Declaration of Elaina Wales in Support of 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims filed byShirley "Rae" Ellis, Leah Horstman. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Related document(s) 664 ) (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)
676 Declaration of Kathleen Olson in Support of 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims filed byShirley "Rae" Ellis, Leah Horstman. (Related document(s) 664 ) (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)
677 Declaration of Jessica Harrell in Support of 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims filed byShirley "Rae" Ellis, Leah Horstman. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Errata 7, # 8 Exhibit 8)(Related document(s) 664 ) (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 47 of 65

06/08/2012 07/02/2012 07/02/2012 07/13/2012 07/31/2012
08/03/2012
08/10/2012 08/10/2012 08/13/2012 09/07/2012 09/07/2012 09/10/2012 09/11/2012

678 Proposed Order re 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims by Shirley "Rae" Ellis, Leah Horstman. (Larkin, Jocelyn) (Filed on 6/8/2012) (Entered: 06/08/2012)
679 REPLY (re 543 MOTION for an Order Eliminating Class Claims ) and in Opposition to Plaintiffs' Cross−Motion for Class Certification filed byCostco Wholesale Corporation. (Kadue, David) (Filed on 7/2/2012) (Entered: 07/02/2012)
680 AFFIDAVIT in Support re 543 MOTION for an Order Eliminating Class Claims Supplemental Declaration of David Kadue Re: Costco's Consolidated Reply in Support of Motion to Eliminate Class Claims and in Opposition to Plaintiffs' Cross−Motion for Class Certification filed byCostco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 7/2/2012) (Entered: 07/02/2012)
681 Response re 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims Plaintiffs' Reply in Support of Cross−Motion for Class Certification byShirley "Rae" Ellis, Leah Horstman. (Hutchinson, Daniel) (Filed on 7/13/2012) (Entered: 07/13/2012)
682 Minute Entry: Motion Hearing held on 7/31/2012 before Edward M. Chen (Date Filed: 7/31/2012) re 543 MOTION for an Order Eliminating Class Claims filed by Costco Wholesale Corporation, 664 MOTION to Certify Class Notice of Cross−Motion and Cross−Motion for Class Certification and Opposition to Motion for Order Eliminating Class Claims filed by Shirley "Rae" Ellis, Leah Horstman. Court took matter under submission and will issue order. (Court Reporter Lydia Zinn.) (bpf, COURT STAFF) (Date Filed: 7/31/2012) (Entered: 07/31/2012)
683 Transcript of Proceedings held on 07/31/2012, before Judge Edward M. Chen. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 11/1/2012. (Zinn, Lydia) (Filed on 8/3/2012) (Entered: 08/03/2012)
684 Joint MOTION for Leave to File Statement of Recent Decisions filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 8/10/2012) (Entered: 08/10/2012)
685 STIPULATION WITH PROPOSED ORDER re 684 Joint MOTION for Leave to File Statement of Recent Decisions filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 8/10/2012) (Entered: 08/10/2012)
686 STIPULATION AND ORDER re re 684 Joint MOTION for Leave to File Statement of Recent Decisions filed by Costco Wholesale Corporation, 684 Joint MOTION for Leave to File Statement of Recent Decisions filed by Costco Wholesale Corporation. Signed by Judge Edward M. Chen on 8/13/12. (bpf, COURT STAFF) (Filed on 8/13/2012) (Entered: 08/13/2012)
687 MOTION for Leave to File Statement of Recent Decision filed by Shirley "Rae" Ellis, Leah Horstman. (Attachments: # 1 Exhibit)(Larkin, Jocelyn) (Filed on 9/7/2012) (Entered: 09/07/2012)
688 Proposed Order Granting Motion To File Statement Of Recent Decision by Shirley "Rae" Ellis, Leah Horstman. (Larkin, Jocelyn) (Filed on 9/7/2012) (Entered: 09/07/2012)
689 ORDER by Judge Edward M. Chen granting 687 Motion for Leave to File (bpf, COURT STAFF) (Filed on 9/10/2012) (Entered: 09/10/2012)
690 MOTION for Extension of Time to File Costco's Unopposed Motion for Permission to Brief Late−Filed Case filed by Costco Wholesale Corporation. (Attachments: # 1 Proposed Order Permitting Costco to Brief Late−Filed Case)(Kadue, David) (Filed on 9/11/2012) (Entered: 09/11/2012)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 48 of 65

09/13/2012 09/17/2012 09/25/2012 09/25/2012 10/05/2012 10/15/2012 11/02/2012 11/13/2012
11/13/2012

691 ORDER by Judge Edward M. Chen granting 690 Motion for Extension of Time to File (as modified − brief must be filed by 9/17/12 at 12:00 p.m.) (bpf, COURT STAFF) (Filed on 9/13/2012) (Entered: 09/13/2012)
692 Brief re 543 MOTION for an Order Eliminating Class Claims Late−filed statement of Decision in Chin v. Port Authority filed byCostco Wholesale Corporation. (Related document(s) 543 ) (Kadue, David) (Filed on 9/17/2012) (Entered: 09/17/2012)
693 ORDER by Judge Edward M. Chen Granting 664 Plaintiffs' Motion for Class Certification; and Denying 543 Defendant's Motion to Eliminate Class Claims. (emcsec, COURT STAFF) (Filed on 9/25/2012) (Entered: 09/25/2012)
694 CLERKS NOTICE SETTING CMC FOR 10/26/12 AT 9:00 A.M. Case Management Statement due by 10/19/2012. Case Management Conference set for 10/26/2012 09:00 AM in Courtroom 5, 17th Floor, San Francisco. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 9/25/2012) (Entered: 09/25/2012)
695 STIPULATION WITH PROPOSED ORDER re 694 Clerks Notice, Stipulation and Proposed Order to Reschedule Case Management Conference filed by Shirley "Rae" Ellis, Leah Horstman. (Lawrence, Elizabeth) (Filed on 10/5/2012) (Entered: 10/05/2012)
696 STIPULATION AND ORDER RE 695 TO RESCHEDULE CASE MANAGEMENT CONFERENCE. Case Management Conference set for 11/9/2012 09:00 AM in Courtroom 5, 17th Floor, San Francisco. Signed by Judge Edward M. Chen on 10/15/12. (cl, COURT STAFF) (Filed on 10/15/2012) (Entered: 10/15/2012)
697 JOINT CASE MANAGEMENT STATEMENT (Supplemental) filed by Shirley "Rae" Ellis, Leah Horstman. (Larkin, Jocelyn) (Filed on 11/2/2012) (Entered: 11/02/2012)
698 Minute Entry: Further Case Management Conference held on 11/9/2012 before Edward M. Chen (Date Filed: 11/13/2012). 12 court day (3 week) jury trial is set for 1/21/14 at 8:30 a.m. Discovery stay is lifted. Discovery is to be governed by FRCP. Parties to stipulate or file supplemental briefing (with competing versions integrated into a single document) regarding class notice by 11/21/12. Court to issue order on papers thereafter. Parties to meet and confer and to submit a stipulated discovery plan within 30 days. Failing agreement, parties to submit joint letter describing disputes regarding this plan. Instead of filing formal discovery motions, parties shall refer to this Courts standing order to meet and confer and submit joint letter on unresolved issues to the Court. Court to determine at a later time if discovery referral to a magistrate judge is necessary. Court to issue scheduling order. Status Report due by 1/10/2013. Status Conference set for 1/17/2013 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (Court Reporter Connie Kuhl.) (bpf, COURT STAFF) (Date Filed: 11/13/2012) (Entered: 11/13/2012)
699 CASE MANAGEMENT SCHEDULING ORDER: 12−day (3 week) Jury Trial set for 1/21/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Motion Hearing set for 10/31/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Pretrial Conference set for 1/7/2014 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 1/22/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 1/24/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 1/27/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 1/28/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 1/29/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 1/31/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 2/3/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 2/4/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 2/5/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 2/7/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 2/10/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 11/13/12. (bpf, COURT STAFF) (Filed on 11/13/2012) (Entered:

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 49 of 65

11/13/2012 11/21/2012
11/21/2012 11/27/2012
11/29/2012 12/10/2012 12/10/2012 12/11/2012 12/11/2012 01/02/2013 01/10/2013 01/14/2013 01/14/2013 01/14/2013
03/13/2013 03/14/2013 03/15/2013

11/13/2012)
Set/Reset Hearing Jury Selection set for 1/21/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (bpf, COURT STAFF) (Filed on 11/13/2012) (Entered: 11/13/2012)
700 Joint MOTION Approval of Class Notice and Notice Plan filed by Shirley "Rae" Ellis, Leah Horstman. Responses due by 12/5/2012. Replies due by 12/12/2012. (Attachments: # 1 Exhibit, # 2 Proposed Order, # 3 Proposed Order)(Larkin, Jocelyn) (Filed on 11/21/2012) (Entered: 11/21/2012)
701 STIPULATION WITH PROPOSED ORDER Regarding Communications With Class Members filed by Shirley "Rae" Ellis, Leah Horstman. (Larkin, Jocelyn) (Filed on 11/21/2012) (Entered: 11/21/2012)
702 STIPULATION AND ORDER re 701 Regarding Communications With Class Members filed by Shirley "Rae" Ellis, Leah Horstman. Signed by Judge Edward M. Chen on 11/27/12. (bpf, COURT STAFF) (Filed on 11/27/2012) (Entered: 11/27/2012)
703 ORDER by Judge Edward M. Chen Approving 700 Class Notice and Notice Plan. (Attachments: # 1 Approved Version of Class Notice). (emcsec, COURT STAFF) (Filed on 11/29/2012) (Entered: 11/29/2012)
704 STIPULATION WITH PROPOSED ORDER Regarding Post−Certification Discovery filed by Shirley "Rae" Ellis, Leah Horstman. (Larkin, Jocelyn) (Filed on 12/10/2012) (Entered: 12/10/2012)
705 Letter from Jocelyn D. Larkin (Counsel for Plaintiffs), David Kadue (Counsel for Defendant Costco) Regarding Post−Certification Discovery. (Larkin, Jocelyn) (Filed on 12/10/2012) (Entered: 12/10/2012)
706 ORDER by Judge Edward M. Chen Granting 704 Stipulation Regarding Post−Certification Discovery. (emcsec, COURT STAFF) (Filed on 12/11/2012) (Entered: 12/11/2012)
707 ORDER Re 705 Temporal Scope of Discovery. Signed by Judge Edward M. Chen on 12/11/2012. (emcsec, COURT STAFF) (Filed on 12/11/2012) (Entered: 12/11/2012)
708 MOTION to Withdraw as Attorney for Plaintiffs filed by Shirley "Rae" Ellis. Responses due by 1/16/2013. Replies due by 1/23/2013. (Attachments: # 1 Proposed Order Proposed Order)(Larkin, Jocelyn) (Filed on 1/2/2013) (Entered: 01/02/2013)
709 JOINT CASE MANAGEMENT STATEMENT (Supplemental) filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 1/10/2013) (Entered: 01/10/2013)
710 ORDER by Judge Edward M. Chen granting 708 Motion to Withdraw as Attorney. Attorney Brad Seligman terminated (bpf, COURT STAFF) (Filed on 1/14/2013) (Entered: 01/14/2013)
711 ORDER RESETTING STATUS FROM 1/17/13 TO 3/21/13 AT 10:30 A.M.. Signed by Judge Edward M. Chen on 1/14/13. (bpf, COURT STAFF) (Filed on 1/14/2013) (Entered: 01/14/2013)
Set/Reset Deadlines:, Set/Reset Hearing Status Report due by 3/14/2013. Status Conference set for 3/21/2013 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (bpf, COURT STAFF) (Filed on 1/14/2013) (Entered: 01/14/2013)
712 STIPULATION WITH PROPOSED ORDER Re Filing of Fourth Amended Complaint filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 3/13/2013) (Entered: 03/13/2013)
713 CASE MANAGEMENT STATEMENT (Supplemental Joint) filed by Shirley "Rae" Ellis, Leah Horstman. (Larkin, Jocelyn) (Filed on 3/14/2013) (Entered: 03/14/2013)
714 STIPULATION AND ORDER re 712 STIPULATION WITH PROPOSED ORDER Re Filing of Fourth Amended Complaint filed by Costco Wholesale Corporation. Signed by Judge Edward M. Chen on 3/15/13. (bpf, COURT STAFF) (Filed on

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03/21/2013 03/25/2013 03/27/2013 03/28/2013
04/05/2013 04/08/2013
04/08/2013 05/01/2013 05/30/2013 05/31/2013 05/31/2013 06/03/2013 06/03/2013 06/17/2013 06/17/2013 06/20/2013

3/15/2013) (Entered: 03/15/2013)
715 Minute Entry: Status Conference (Date Filed: 3/21/2013). Further Status Report due by 5/30/2013. Status Conference set for 6/6/2013 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (Court Reporter Margo Gurule.) (bpf, COURT STAFF) (Date Filed: 3/21/2013) (Entered: 03/21/2013)
716 Proposed Order Regarding Late Opt−Outs by Shirley "Rae" Ellis, Leah Horstman. (Larkin, Jocelyn) (Filed on 3/25/2013) (Entered: 03/25/2013)
717 ORDER re 716 late opt−outs filed by Shirley "Rae" Ellis, Leah Horstman. Signed by Judge Edward M. Chen on 3/27/13. (bpf, COURT STAFF) (Filed on 3/27/2013) (Entered: 03/27/2013)
718 AMENDED COMPLAINT (Fourth) against All Plaintiffs. Filed byShirley "Rae" Ellis, Leah Horstman. (Attachments: # 1 Exhibit EEOC Charge of Discrimination for Shirley Ellis, # 2 Exhibit EEOC Charge of Retaliation for Shirley Ellis, # 3 Exhibit EEOC Charge of Discrimination for Leah Horstman, # 4 Exhibit EEOC Charge of Discrimination for Elaine Sasaki, # 5 Exhibit EEOC Charge of Retaliation for Elaine Sasaki)(Larkin, Jocelyn) (Filed on 3/28/2013) (Entered: 03/28/2013)
719 STIPULATION WITH PROPOSED ORDER [Proposed] Stipulated Order Re Discovery of Electronically Stored Information filed by Costco Wholesale Corporation, Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Hutchinson, Daniel) (Filed on 4/5/2013) (Entered: 04/05/2013)
720 STIPULATION AND ORDER re 719 STIPULATION WITH PROPOSED ORDER [Proposed] Stipulated Order Re Discovery of Electronically Stored Information filed by Costco Wholesale Corporation, Elaine Sasaki, Shirley "Rae" Ellis, Leah Horstman. Signed by Judge Edward M. Chen on 4/8/13. (bpf, COURT STAFF) (Filed on 4/8/2013) (Entered: 04/08/2013)
721 Answer to 718 Amended Complaint, Answer to Plaintiffs' Fourth Amended Complaint by Costco Wholesale Corporation. (Kadue, David) (Filed on 4/8/2013) (Entered: 04/08/2013)
722 STATUS REPORT JOINT REPORT PURSUANT TO STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION by Costco Wholesale Corporation, Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Hutchinson, Daniel) (Filed on 5/1/2013) (Entered: 05/01/2013)
723 CASE MANAGEMENT STATEMENT filed by Costco Wholesale Corporation. (Tyman, Annette) (Filed on 5/30/2013) (Entered: 05/30/2013)
724 MOTION to Appear by Telephone filed by Costco Wholesale Corporation. (Tyman, Annette) (Filed on 5/31/2013) (Entered: 05/31/2013)
725 Proposed Order re 724 MOTION to Appear by Telephone by Costco Wholesale Corporation. (Tyman, Annette) (Filed on 5/31/2013) (Entered: 05/31/2013)
726 ORDER by Judge Edward M. Chen denying 724 Motion to Appear by Telephone. Status reset for 6/27/13 at 10:30 a.m. (bpf, COURT STAFF) (Filed on 6/3/2013) (Entered: 06/03/2013)
Set/Reset Deadlines:, Set/Reset Hearing Status Report due by 6/20/2013. Status Conference reset for 6/27/2013 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (bpf, COURT STAFF) (Filed on 6/3/2013) (Entered: 06/03/2013)
727 MOTION of Lorie Almon for leave to appear in Pro Hac Vice (Filing fee $ 305, receipt number 0971−7777591.) filed by Costco Wholesale Corporation. (Almon, Lorie) (Filed on 6/17/2013) (Entered: 06/17/2013)
728 NOTICE of Appearance by Jocelyn Dion Larkin of Robert Schug (Larkin, Jocelyn) (Filed on 6/17/2013) (Entered: 06/17/2013)
729 CASE MANAGEMENT STATEMENT Joint filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Larkin, Jocelyn) (Filed on 6/20/2013) (Entered: 06/20/2013)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 51 of 65

06/24/2013 06/28/2013 06/28/2013 07/18/2013 07/23/2013
07/24/2013 07/25/2013
08/15/2013 08/15/2013 08/19/2013 08/19/2013 08/19/2013 08/19/2013 08/20/2013 08/21/2013 08/22/2013

730 ORDER by Judge Edward M. Chen granting 727 Motion for Pro Hac Vice (Almon) (bpf, COURT STAFF) (Filed on 6/24/2013) (Entered: 06/24/2013)
731 Minute Entry: Status Conference (Date Filed: 6/28/2013). Status Report due by 7/18/2013. Further Status Conference set for 7/25/2013 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (Recording #FTR 1032−1037.) (bpf, COURT STAFF) (Date Filed: 6/28/2013) (Entered: 06/28/2013)
732 CASE MANAGEMENT SCHEDULING ORDER: Dispositive Motion Hearing reset for 11/21/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 6/28/13. (bpf, COURT STAFF) (Filed on 6/28/2013) (Entered: 06/28/2013)
733 CASE MANAGEMENT STATEMENT filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Larkin, Jocelyn) (Filed on 7/18/2013) (Entered: 07/18/2013)
734 MOTION for Leave to Appear Telephonically at July 25, 2013 Case Management Conference, MOTION to Appear by Telephone filed by Costco Wholesale Corporation. (Attachments: # 1 Proposed Order Granting Defendant Costco's Motion to Appear Telephonically at July 25, 2013 Case Management Conference)(Kadue, David) (Filed on 7/23/2013) (Entered: 07/23/2013)
735 ORDER by Judge Edward M. Chen granting 734 Motion to Appear by Telephone (bpf, COURT STAFF) (Filed on 7/24/2013) (Entered: 07/24/2013)
736 Minute Entry: Status Conference (Date Filed: 7/25/2013). Status Report due by 8/15/2013. Status Conference set for 8/22/2013 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. 9/20/13−final witness disclosures; 9/13/13− non−expert discovery cutoff; 9/13/13− Opening expert reports; 10/18/13 − Rebuttal reports; 11/1/13Expert discovery cutoff(Recording #1107−1110.) (bpf, COURT STAFF) (Date Filed: 7/25/2013) (Entered: 07/25/2013)
737 JOINT CASE MANAGEMENT STATEMENT (Further Supplemental) filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 8/15/2013) (Entered: 08/15/2013)
738 MOTION for Leave to File Excess Pages As to Decertify and Summary Judgment Motions filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 8/15/2013) (Entered: 08/15/2013)
739 Joint Discovery Letter Brief filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 8/19/2013) (Entered: 08/19/2013)
740 RESPONSE (re 738 MOTION for Leave to File Excess Pages As to Decertify and Summary Judgment Motions ) filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Attachments: # 1 Proposed Order)(Larkin, Jocelyn) (Filed on 8/19/2013) (Entered: 08/19/2013)
741 Joint Discovery Letter Brief regarding ESI filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Hutchinson, Daniel) (Filed on 8/19/2013) (Entered: 08/19/2013)
742 EXHIBITS re 741 Joint Discovery Letter Brief regarding ESI filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Related document(s) 741 ) (Hutchinson, Daniel) (Filed on 8/19/2013) (Entered: 08/19/2013)
743 Proposed Order re 738 MOTION for Leave to File Excess Pages As to Decertify and Summary Judgment Motions by Costco Wholesale Corporation. (Kadue, David) (Filed on 8/20/2013) (Entered: 08/20/2013)
744 JOINT CASE MANAGEMENT STATEMENT (Further Supplemental) filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Larkin, Jocelyn) (Filed on 8/21/2013) (Entered: 08/21/2013)
745 Minute Entry: Status Conference held. 12−day jury trial rescheduled from 1/21/14 to 3/17/14 at 8:30 a.m. Court to issue case management and pretrial order (Date Filed: 8/22/2013). (Recording #1042−1055.) (bpf, COURT STAFF) (Date Filed: 8/22/2013) (Entered: 08/22/2013)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 52 of 65

08/22/2013 08/22/2013
08/23/2013
08/26/2013 10/11/2013 10/16/2013 10/30/2013 12/02/2013 12/05/2013 12/06/2013

Set/Reset Deadlines:, Set/Reset Hearing Status Report due by 11/27/2013. Status Conference set for 12/5/2013 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (bpf, COURT STAFF) (Filed on 8/22/2013) (Entered: 08/22/2013)
Set/Reset Deadlines:, Set/Reset Hearing Jury Selection set for 3/17/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. 12−day Jury Trial set for 3/17/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 3/18/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 3/19/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 3/21/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 3/24/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 3/25/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 3/26/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 3/28/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 3/31/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/1/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/2/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/4/2014 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (bpf, COURT STAFF) (Filed on 8/22/2013) (Entered: 08/22/2013)
746 CASE MANAGEMENT SCHEDULING ORDER: 12−day jury trial reset for 3/17/14 at 8:30 a.m. Discovery due by 10/31/2013. Motion Hearing set for 1/30/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Pretrial Conference set for 3/4/2014 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Status Conference set for 12/5/2013 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 8/23/13. (bpf, COURT STAFF) (Filed on 8/23/2013) (Entered: 08/23/2013)
747 ORDER by Judge Edward M. Chen granting 738 Motion for Leave to File Excess Pages (as modified) (bpf, COURT STAFF) (Filed on 8/26/2013) (Entered: 08/26/2013)
748 STIPULATION WITH PROPOSED ORDER Joint Stipulation & Proposed Order Regarding Pre−Trial & Trial Deadlines filed by Costco Wholesale Corporation, Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Lawrence, Elizabeth) (Filed on 10/11/2013) (Entered: 10/11/2013)
749 STIPULATION AND ORDER re 748 Joint Stipulation & Proposed Order Vacating Pre−Trial & Trial Deadlines filed by Costco Wholesale Corporation, Elaine Sasaki, Shirley "Rae" Ellis, Leah Horstman Status Report due by 12/5/2013. Status Conference set for 12/12/2013 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 10/16/13. (bpf, COURT STAFF) (Filed on 10/16/2013) (Entered: 10/16/2013)
750 ORDER of USCA re 12−80188. (gbaS, COURT STAFF) (Filed on 10/30/2013) (Entered: 10/30/2013)
751 CLERKS NOTICE resetting status for 3/13/14 at 10:30 a.m. Status Report due by 3/6/2014. Status Conference set for 3/13/2014 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 12/2/2013) (Entered: 12/02/2013)
752 STIPULATION WITH PROPOSED ORDER Regarding Extension of Deadlines for Filing (1) Motion for Preliminary Settlement Approval and (2) Motion for Attorneys' Fees and Costs filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 12/5/2013) (Entered: 12/05/2013)
753 STIPULATION WITH PROPOSED ORDER (CORRECTED) Regarding Extension of Deadlines for Filing (1) Motion for Preliminary Settlement Approval and (2) Motion

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 53 of 65

12/10/2013
12/17/2013 12/17/2013 12/17/2013 12/17/2013 12/17/2013 12/17/2013 12/17/2013 12/17/2013

for Attorneys' Fees and Costs filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 12/6/2013) (Entered: 12/06/2013)
754 STIPULATION AND ORDER re 753 STIPULATION WITH PROPOSED ORDER (CORRECTED) Regarding Extension of Deadlines for Filing (1) Motion for Preliminary Settlement Approval and (2) Motion for Attorneys' Fees and Costs filed by Costco Wholesale Corporation, Set/Reset Deadlines as to 753 STIPULATION WITH PROPOSED ORDER (CORRECTED) Regarding Extension of Deadlines for Filing (1) Motion for Preliminary Settlement Approval and (2) Motion for Attorneys' Fees and Costs. Motions due by 12/17/2013. Motion Hearing (Prelminary approval of settlement) set for 2/6/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Motion Hearing (attorney's fees)set for 3/13/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 12/10/13. (bpf, COURT STAFF) (Filed on 12/10/2013) (Entered: 12/10/2013)
755 NOTICE OF MOTION AND MOTION for (1) Preliminary Approval of Class Action Settlement; (2) Approval of Class Notice and Notice Plan; and (3) Setting of Schedule for Final Approval filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. Motion Hearing set for 2/6/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 12/31/2013. Replies due by 1/7/2014. (Attachments: # 1 Proposed Order)(Larkin, Jocelyn) (Filed on 12/17/2013) Modified on 12/18/2013 (slhS, COURT STAFF). (Entered: 12/17/2013)
756 Declaration of Jocelyn Larkin in Support of 755 MOTION for (1) Preliminary Approval of Class Action Settlement; (2) Approval of Class Notice and Notice Plan; and (3) Setting of Schedule for Final Approval filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 755 ) (Larkin, Jocelyn) (Filed on 12/17/2013) Modified on 12/18/2013 (slhS, COURT STAFF). (Entered: 12/17/2013)
757 Declaration of Shirley "Rae" Ellis in Support of 755 MOTION for (1) Preliminary Approval of Class Action Settlement; (2) Approval of Class Notice and Notice Plan; and (3) Setting of Schedule for Final Approval filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Related document(s) 755 ) (Larkin, Jocelyn) (Filed on 12/17/2013) Modified on 12/18/2013 (slhS, COURT STAFF). (Entered: 12/17/2013)
758 Declaration of Leah Horstman in Support of 755 MOTION for (1) Preliminary Approval of Class Action Settlement; (2) Approval of Class Notice and Notice Plan; and (3) Setting of Schedule for Final Approval filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Related document(s) 755 ) (Larkin, Jocelyn) (Filed on 12/17/2013) Modified on 12/18/2013 (slhS, COURT STAFF). (Entered: 12/17/2013)
759 Declaration of Elaine Sasaki in Support of 755 MOTION for (1) Preliminary Approval of Class Action Settlement; (2) Approval of Class Notice and Notice Plan; and (3) Setting of Schedule for Final Approval filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Related document(s) 755 ) (Larkin, Jocelyn) (Filed on 12/17/2013) Modified on 12/18/2013 (slhS, COURT STAFF). (Entered: 12/17/2013)
760 MOTION for Attorney Fees Motion for Attorneys' Fees and Costs filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. Motion Hearing set for 3/13/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 12/31/2013. Replies due by 1/7/2014. (Attachments: # 1 Proposed Order)(Larkin, Jocelyn) (Filed on 12/17/2013) (Entered: 12/17/2013)
761 Declaration of Jocelyn Larkin in Support of 760 MOTION for Attorney Fees Motion for Attorneys' Fees and Costs filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 760 ) (Larkin, Jocelyn) (Filed on 12/17/2013) (Entered: 12/17/2013)
762 Declaration of Daniel Hutchinson in Support of 760 MOTION for Attorney Fees Motion for Attorneys' Fees and Costs filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 760 ) (Hutchinson, Daniel) (Filed on 12/17/2013) (Entered: 12/17/2013)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 54 of 65

12/17/2013
12/17/2013 12/17/2013 12/17/2013 01/22/2014 01/22/2014 01/24/2014
01/24/2014 01/30/2014 01/30/2014 01/30/2014 01/30/2014 01/30/2014

763 Declaration of Bill Lann Lee in Support of 760 MOTION for Attorney Fees Motion for Attorneys' Fees and Costs filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Related document(s) 760 ) (Larkin, Jocelyn) (Filed on 12/17/2013) (Entered: 12/17/2013)
764 Declaration of Elizabeth Lawrence in Support of 760 MOTION for Attorney Fees Motion for Attorneys' Fees and Costs filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 760 ) (Larkin, Jocelyn) (Filed on 12/17/2013) (Entered: 12/17/2013)
765 Declaration of James M. Finberg in Support of 760 MOTION for Attorney Fees Motion for Attorneys' Fees and Costs filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Related document(s) 760 ) (Larkin, Jocelyn) (Filed on 12/17/2013) (Entered: 12/17/2013)
766 Declaration of Richard Pearl in Support of 760 MOTION for Attorney Fees Motion for Attorneys' Fees and Costs filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Related document(s) 760 ) (Larkin, Jocelyn) (Filed on 12/17/2013) (Entered: 12/17/2013)
767 ORDER Re Supplemental Briefing. Signed by Judge Edward M. Chen on 1/22/2014. (emcsec, COURT STAFF) (Filed on 1/22/2014) (Entered: 01/22/2014)
768 STIPULATION WITH PROPOSED ORDER Regarding (1) Extension of Briefing Deadlines Re Motion for Attorneys' Fees and Costs and (2) Hearing Date on Motion for Attorneys' Fees filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 1/22/2014) (Entered: 01/22/2014)
769 STIPULATION AND ORDER re 768 STIPULATION WITH PROPOSED ORDER Regarding (1) Extension of Briefing Deadlines Re Motion for Attorneys' Fees and Costs and (2) Hearing Date on Motion for Attorneys' Fees filed by Costco Wholesale Corporation, Set/Reset Deadlines as to 768 STIPULATION WITH PROPOSED ORDER Regarding (1) Extension of Briefing Deadlines Re Motion for Attorneys' Fees and Costs and (2) Hearing Date on Motion for Attorneys' Fees, 760 MOTION for Attorney Fees Motion for Attorneys' Fees and Costs. Responses due by 1/31/2014. Replies due by 3/4/2014.. Signed by Judge Edward M. Chen on 1/24/14. (bpf, COURT STAFF) (Filed on 1/24/2014) (Entered: 01/24/2014)
***Deadlines terminated. Attorney's fee motion on 3/13/14 vacated. Will be reset with Final approval hearing. (bpf, COURT STAFF) (Filed on 1/24/2014) (Entered: 01/24/2014)
770 STIPULATION Stipulation Regarding Motion for Attorneys' Fees and Costs filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Larkin, Jocelyn) (Filed on 1/30/2014) (Entered: 01/30/2014)
771 Supplemental Application for Service Awards to Class Representatives re 755 MOTION for Preliminary Approval of Class Action Settlement filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Related document(s) 755 ) (Lawrence, Elizabeth) (Filed on 1/30/2014) Modified on 2/3/2014 (slhS, COURT STAFF). (Entered: 01/30/2014)
772 Declaration of Shirley "Rae" Ellis in Support of 771 Application for Service Award filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Related document(s) 771 ) (Lawrence, Elizabeth) (Filed on 1/30/2014) Modified on 2/3/2014 (slhS, COURT STAFF). (Entered: 01/30/2014)
773 Declaration of Elaine Sasaki in Support of 771 Application for Service Award filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Related document(s) 771 ) (Lawrence, Elizabeth) (Filed on 1/30/2014) Modified on 2/3/2014 (slhS, COURT STAFF). (Entered: 01/30/2014)
774 Application for Service Award in Support of 771 Supplemental Brief filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Related document(s) 771 ) (Lawrence,

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 55 of 65

01/30/2014 01/30/2014
02/06/2014 02/06/2014 02/10/2014 02/10/2014
02/12/2014 02/13/2014 02/25/2014
04/08/2014 04/17/2014 04/17/2014

Elizabeth) (Filed on 1/30/2014) Modified on 2/3/2014 (slhS, COURT STAFF). (Entered: 01/30/2014)
775 Supplemental Brief re 767 Order Joint Supplemental Brief in Response to January 22, 2014 Order and Regarding Contingent Distribution of Excess Funds filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Related document(s) 767 ) (Larkin, Jocelyn) (Filed on 1/30/2014) (Entered: 01/30/2014)
776 Declaration of Jocelyn Larkin in Support of 775 Supplemental Brief, Declaration of Jocelyn Larkin in Support of Joint Supplemental Brief in Response to January 22, 2014 Order and Regarding Contingent Distribution of Excess Funds filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 775 ) (Larkin, Jocelyn) (Filed on 1/30/2014) (Entered: 01/30/2014)
777 Minute Entry: Motion Hearing held on 2/6/2014 before Judge Edward M. Chen (Date Filed: 2/6/2014) re 755 MOTION for Preliminary Approval of Class Action Settlement filed by Elaine Sasaki, Shirley "Rae" Ellis, Leah Horstman. (Court Reporter Lydia Zinn.) (bpf, COURT STAFF) (Date Filed: 2/6/2014) (Entered: 02/06/2014)
Set/Reset Deadlines as to Motion (Final Approval) Hearing set for 5/22/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (bpf, COURT STAFF) (Filed on 2/6/2014) (Entered: 02/06/2014)
778 STIPULATION Stipulation Regarding Amended Settlement Agreement and Class Notice filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Larkin, Jocelyn) (Filed on 2/10/2014) (Entered: 02/10/2014)
779 Proposed Order re 755 MOTION for Preliminary Approval of Class Action Settlement [Proposed] Order Granting Motion for (1) Preliminary Approval of Class Action Settlement; (2) Approval of Class Notice and Notice Plan; and (3) Setting of Schedule for Final Approval by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Attachments: # 1 Exhibit 1)(Larkin, Jocelyn) (Filed on 2/10/2014) (Entered: 02/10/2014)
780 ORDER by Judge Edward M. Chen granting 755 Motion for Preliminary Approval of Settlement (bpf, COURT STAFF) (Filed on 2/12/2014) (Entered: 02/12/2014)
781 TRANSCRIPT ORDER by Costco Wholesale Corporation for Court Reporter Lydia Zinn. (Kadue, David) (Filed on 2/13/2014) (Entered: 02/13/2014)
782 Transcript of Proceedings held on 2/6/2014, before Judge Edward M. Chen. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/27/2014. (Related documents(s) 781 ) (Zinn, Lydia) (Filed on 2/25/2014) (Entered: 02/25/2014)
783 TRANSCRIPT ORDER by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki for Court Reporter Lydia Zinn. (Larkin, Jocelyn) (Filed on 4/8/2014) (Entered: 04/08/2014)
784 NOTICE of Appearance by Jocelyn Dion Larkin Notice of Appearance of Meredith Johnson (Larkin, Jocelyn) (Filed on 4/17/2014) (Entered: 04/17/2014)
785 MOTION for Settlement Notice of Motion and Motion for Final Approval of Class Action Settlement filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. Motion Hearing set for 5/22/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 5/1/2014. Replies due by 5/8/2014. (Attachments: # 1 Proposed Order [Proposed] Order Granting Motion for Final Approval of Class Action Settlement)(Larkin, Jocelyn) (Filed on 4/17/2014) (Entered: 04/17/2014)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 56 of 65

04/17/2014 04/17/2014 05/15/2014 05/15/2014 05/23/2014
05/27/2014 08/27/2014 08/28/2014 09/05/2014 09/05/2014
09/15/2014 09/17/2014

786 Declaration of Jocelyn D. Larkin in Support of 785 MOTION for Settlement Notice of Motion and Motion for Final Approval of Class Action Settlement Declaration of Jocelyn D. Larkin in Support of Motion for Final Approval of Class Action Settlement filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Attachments: # 1 Exhibit 1)(Related document(s) 785 ) (Larkin, Jocelyn) (Filed on 4/17/2014) (Entered: 04/17/2014)
787 Declaration of Mark Patton in Support of 785 MOTION for Settlement Notice of Motion and Motion for Final Approval of Class Action Settlement Declaration of Mark Patton filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Related document(s) 785 ) (Larkin, Jocelyn) (Filed on 4/17/2014) (Entered: 04/17/2014)
788 Supplemental Brief re 785 MOTION for Settlement Notice of Motion and Motion for Final Approval of Class Action Settlement Supplemental Brief in Support of Motion for Final Approval of Class Action Settlement filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Attachments: # 1 Exhibit A)(Related document(s) 785 ) (Larkin, Jocelyn) (Filed on 5/15/2014) (Entered: 05/15/2014)
789 Declaration of Mark Patton in Support of 788 Supplemental Brief, Declaration of Mark Patton filed byShirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Related document(s) 788 ) (Larkin, Jocelyn) (Filed on 5/15/2014) (Entered: 05/15/2014)
790 Minute Entry: Motion Hearing held on 5/22/2014 before Judge Edward M. Chen (Date Filed: 5/23/2014) re 785 MOTION for Settlement Notice of Motion and Motion for Final Approval of Class Action Settlement filed by Elaine Sasaki, Shirley "Rae" Ellis, Leah Horstman. Case Management Statement due by 8/28/2014. Case Management Conference set for 9/4/2014 10:30 AM in Courtroom 5, 17th Floor, San Francisco. (Court Reporter Joann Bryce.) (bpf, COURT STAFF) (Date Filed: 5/23/2014) (Entered: 05/23/2014)
791 ORDER by Judge Edward M. Chen granting 785 Motion for Settlement (Attachments: # 1 Appendix) (bpf, COURT STAFF) (Filed on 5/27/2014) (Entered: 05/27/2014)
792 Letter Brief re Dispute Over Scope of Class filed byCostco Wholesale Corporation. (Kadue, David) (Filed on 8/27/2014) (Entered: 08/27/2014)
793 JOINT CASE MANAGEMENT STATEMENT filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 8/28/2014) (Entered: 08/28/2014)
794 Minute Entry: Initial Case Management Conference held on 9/4/2014 before Judge Edward M. Chen. 10 court day bench trial set for 7/27/15 at 8:30 a.m. Status Report due by 1/22/2015. Status Conference set for 1/29/2015 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (Recording #FTR 10:37−10:56.) (bpfS, COURT STAFF) (Date Filed: 9/5/2014) (Entered: 09/05/2014)
795 CASE MANAGEMENT SCHEDULING ORDER:10 court day Bench Trial set for 7/27/2015 08:30 AM before Hon. Edward M. Chen. Discovery due by 2/20/2015. Motion Hearing set for 4/30/2015 01:30 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Edward M. Chen. Pretrial Conference set for 6/30/2015 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Bench Trial set for 7/28/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 7/29/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 7/31/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 8/3/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 8/4/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 8/5/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 8/7/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 8/10/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 8/11/2015 08:30 AM before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 9/5/14. (bpfS, COURT STAFF) (Filed on 9/5/2014) (Entered: 09/05/2014)
796 Proposed Order [Proposed] Order Regarding Business Centers Issue by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Larkin, Jocelyn) (Filed on 9/15/2014) (Entered: 09/15/2014)
797 ORDER re 796 Business Center issue filed by Elaine Sasaki, Shirley "Rae" Ellis, Leah Horstman. Signed by Judge Edward M. Chen on 9/17/14. (bpf, COURT

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01/12/2015 01/23/2015
01/29/2015 02/06/2015 02/17/2015 02/19/2015
03/03/2015 03/04/2015 03/06/2015 03/06/2015 03/06/2015 03/10/2015 03/11/2015 03/19/2015

STAFF) (Filed on 9/17/2014) (Entered: 09/17/2014)
798 STIPULATION WITH PROPOSED ORDER re One−Week Extensions of Dates for (1) 1/29/15 Status Conference, (2) 2/20/15 Non−Expert Discovery Deadline, and (3) Expert−Related Days of 2/20/15, 3/13/15, and 4/3/15 filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 1/12/2015) (Entered: 01/12/2015)
799 STIPULATION AND ORDER re 798 STIPULATION WITH PROPOSED ORDER re One−Week Extensions of Dates for (1) 1/29/15 Status Conference, (2) 2/20/15 Non−Expert Discovery Deadline, and (3) Expert−Related Days of 2/20/15, 3/13/15, and 4/3/15 filed by Costco Wholesale Corporation Discovery due by 2/27/2015. Status Report due by 1/29/2015. Status Conference set for 2/5/2015 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 1/23/15. (bpf, COURT STAFF) (Filed on 1/23/2015) (Entered: 01/23/2015)
800 JOINT CASE MANAGEMENT STATEMENT (Supplemental) filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 1/29/2015) (Entered: 01/29/2015)
801 Minute Entry for proceedings held before Hon. Edward M. Chen: Status Conference held on 2/5/2015. Pretrial Conference set for 6/30/15 at 2:30 p.m. FTR Time 10:40−10:56. (bpf, COURT STAFF) (Date Filed: 2/6/2015) (Entered: 02/06/2015)
802 STIPULATION WITH PROPOSED ORDER Re (1) Three−Week Extension of 2/27/15 Non−Expert Discovery Deadline, and (2) Three−Week Extension of Expert−Related Deadlines of 2/27/15, 3/18/15, and 4/10/15 filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 2/17/2015) (Entered: 02/17/2015)
803 STIPULATION AND ORDER re 802 Re (1) Three−Week Extension of 2/27/15 Non−Expert Discovery Deadline, and (2) Three−Week Extension of Expert−Related Deadlines of 2/27/15, 3/18/15, and 4/10/15 filed by Costco Wholesale Corporation Discovery due by 3/20/2015.. Signed by Judge Edward M. Chen on 2/19/15. (bpf, COURT STAFF) (Filed on 2/19/2015) (Entered: 02/19/2015)
804 Joint Discovery Letter Briefre: Deposition of Dennis Hoover filed by Elaine Sasaki. (Larkin, Jocelyn) (Filed on 3/3/2015) (Entered: 03/03/2015)
805 STIPULATION WITH PROPOSED ORDER Regarding Appointment of Special Master filed by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki. (Attachments: # 1 Exhibit A)(Larkin, Jocelyn) (Filed on 3/4/2015) (Entered: 03/04/2015)
806 ORDER by Judge Edward M. Chen granting 804 Discovery Letter Brief (bpf, COURT STAFF) (Filed on 3/6/2015) (Entered: 03/06/2015)
807 Joint Discovery Letter Brief Regarding Errata Sheets filed by Elaine Sasaki. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Larkin, Jocelyn) (Filed on 3/6/2015) (Entered: 03/06/2015)
808 STIPULATION AND ORDER re 805 STIPULATION WITH PROPOSED ORDER Regarding Appointment of Special Master filed by Elaine Sasaki, Shirley "Rae" Ellis, Leah Horstman. Signed by Judge Edward M. Chen on 3/6/15. (bpf, COURT STAFF) (Filed on 3/6/2015) (Entered: 03/06/2015)
809 ORDER REFERRING CASE to Magistrate Judge for Discovery purposes. Signed by Judge Edward M. Chen on 3/10/15. (bpf, COURT STAFF) (Filed on 3/10/2015) (Entered: 03/10/2015)
CASE REFERRED to Magistrate Judge Joseph C. Spero for Discovery (ahm, COURT STAFF) (Filed on 3/11/2015) (Entered: 03/11/2015)
810 Notice of Reference and ORDER Setting Hearing on Motion 807 Joint Discovery Letter Brief Regarding Errata Sheets : The parties shall provide a copy of the joint chart as described in the discovery letter to the Court by 3/27/15. Motion Hearing set for 4/3/2015 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. Signed by Judge Joseph C. Spero on 3/19/15. (klhS, COURT STAFF) (Filed on 3/19/2015) (Entered: 03/19/2015)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 58 of 65

03/23/2015 03/26/2015 03/26/2015 03/26/2015 03/26/2015
03/26/2015 03/26/2015 03/26/2015 03/26/2015 03/26/2015 03/26/2015 03/26/2015 03/26/2015 03/26/2015

811 NOTICE by Shirley "Rae" Ellis, Leah Horstman, Elaine Sasaki of Firm Name Change (Lee, Bill) (Filed on 3/23/2015) (Entered: 03/23/2015)
812 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order Granting Voluntary Dismissal of Plaintiff's Disparate Impact Claim filed by Elaine Sasaki. (Larkin, Jocelyn) (Filed on 3/26/2015) (Entered: 03/26/2015)
813 Letter from Robert L. Schug Regarding Errata Charts for Jeff Abadir and John Booth. (Attachments: # 1 Errata Chart for Jeff Abadir, # 2 Errata Chart for John Booth)(Schug, Robert) (Filed on 3/26/2015) (Entered: 03/26/2015)
814 MOTION for Summary Judgment filed by Costco Wholesale Corporation. Motion Hearing set for 4/30/2015 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 4/9/2015. Replies due by 4/16/2015. (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)
815 Declaration of David Kadue in Support of 814 MOTION for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit B−238, # 4 Exhibit B−239, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit F−1038, # 10 Exhibit F−1039, # 11 Exhibit F−1040, # 12 Exhibit F−1041, # 13 Exhibit F−1042, # 14 Exhibit G, # 15 Exhibit G−1043, # 16 Exhibit G−1045, # 17 Exhibit G−1046, # 18 Errata G−1047, # 19 Exhibit G−1050, # 20 Exhibit H, # 21 Exhibit H−2032, # 22 Exhibit H−2033, # 23 Exhibit H−2035, # 24 Exhibit H−2036, # 25 Exhibit H−2037, # 26 Exhibit H−2038, # 27 Exhibit H−2039, # 28 Exhibit H−2040, # 29 Exhibit H−2041, # 30 Exhibit I, # 31 Exhibit I−2044, # 32 Exhibit I−2046, # 33 Exhibit I−2047, # 34 Exhibit J, # 35 Exhibit K)(Related document(s) 814 ) (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)
816 Declaration of Dr. Ali Saad in Support of 814 MOTION for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 1−25, # 2 Exhibit CV)(Related document(s) 814 ) (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)
817 Declaration of Dennis Hoover in Support of 814 MOTION for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 814 ) (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)
818 Declaration of John Booth in Support of 814 MOTION for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 1042, # 2 Exhibit 1045)(Related document(s) 814 ) (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)
819 Declaration of John Gaherty in Support of 814 MOTION for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 814 ) (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)
820 Declaration of Jim Harris in Support of 814 MOTION for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 2039)(Related document(s) 814 ) (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)
821 Declaration of John McKay in Support of 814 MOTION for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 814 ) (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)
822 Declaration of Jeff Thompson in Support of 814 MOTION for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 2041, # 2 Exhibit 2044, # 3 Exhibit 2046)(Related document(s) 814 ) (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)
823 Declaration of Kathy Fuson in Support of 814 MOTION for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 2040)(Related document(s) 814 ) (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)
824 Declaration of Mario Omoss in Support of 814 MOTION for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 1)(Related document(s) 814 ) (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)

Case: 3:04-cv-3341 As of: 11/20/2016 10:48 AM PST 59 of 65

03/26/2015 03/26/2015 03/26/2015 03/27/2015 03/30/2015
04/03/2015
04/03/2015 04/06/2015 04/09/2015
04/09/2015 04/09/2015 04/09/2015 04/09/2015 04/09/2015

825 Declaration of Ron Vachris in Support of 814 MOTION for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 814 ) (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)
826 Declaration of Shawn Parks in Support of 814 MOTION for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 1)(Related document(s) 814 ) (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)
827 Declaration of Tammy Loveland in Support of 814 MOTION for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit 1039)(Related document(s) 814 ) (Kadue, David) (Filed on 3/26/2015) (Entered: 03/26/2015)
828 Proposed Order re 814 MOTION for Summary Judgment by Costco Wholesale Corporation. (Kadue, David) (Filed on 3/27/2015) (Entered: 03/27/2015)
829 STIPULATION AND ORDER re 812 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order Granting Voluntary Dismissal of Plaintiff's Disparate Impact Claim filed by Elaine Sasaki. Signed by Judge Edward M. Chen on 3/30/15. (bpf, COURT STAFF) (Filed on 3/30/2015) (Entered: 03/30/2015)
830 Minute Entry for proceedings held before Magistrate Judge Joseph C. Spero: Discovery Hearing re: Joint Letter re: Deposition Errata Sheet [dkt 807] held on 4/3/2015. Denied without prejudice. FTR Time 10:11−10:14. (klhS, COURT STAFF) (Date Filed: 4/3/2015) (Entered: 04/03/2015)
831 Order by Magistrate Judge Joseph C. Spero denying 807 Discovery Letter Brief.(jcslc3S, COURT STAFF) (Filed on 4/3/2015) (Entered: 04/03/2015)
832 TRANSCRIPT ORDER by Elaine Sasaki for Court Reporter FTR − San Francisco. (Schug, Robert) (Filed on 4/6/2015) (Entered: 04/06/2015)
833 Administrative Motion to File Under Seal filed by Elaine Sasaki. (Attachments: # 1 Declaration of Elizabeth Lawrence, # 2 Proposed Order, # 3 Redacted Version of Plaintiff's Opposition to Costco's Motion for Summary Judgment, # 4 Unredacted Version of Plaintiff's Opposition to Costco's Motion for Summary Judgment)(Larkin, Jocelyn) (Filed on 4/9/2015) (Entered: 04/09/2015)
834 EXHIBITS re 833 Administrative Motion to File Under Seal filed byElaine Sasaki. (Attachments: # 1 Unredacted Version of Declaration of Amy Oppenheimer)(Related document(s) 833 ) (Larkin, Jocelyn) (Filed on 4/9/2015) (Entered: 04/09/2015)
835 EXHIBITS re 833 Administrative Motion to File Under Seal filed byElaine Sasaki. (Attachments: # 1 Unredacted Version of Hoover Testimony)(Related document(s) 833 ) (Larkin, Jocelyn) (Filed on 4/9/2015) (Entered: 04/09/2015)
836 EXHIBITS re 833 Administrative Motion to File Under Seal filed byElaine Sasaki. (Attachments: # 1 Unredacted Version of Vadney Investigation Notes)(Related document(s) 833 ) (Larkin, Jocelyn) (Filed on 4/9/2015) (Entered: 04/09/2015)
837 Proposed Order re 833 Administrative Motion to File Under Seal [Proposed] Order Denying Costco's Motion for Summary Judgment by Elaine Sasaki. (Larkin, Jocelyn) (Filed on 4/9/2015) (Entered: 04/09/2015)
838 Declaration of Jocelyn D. Larkin in Support of 834 Exhibits to an Administrative Motion to File Under Seal, 835 Exhibits to an Administrative Motion to File Under Seal, 833 Administrative Motion to File Under Seal , 837 Proposed Order, 836 Exhibits to an Administrative Motion to File Under Seal Declaration of Jocelyn D. Larkin in Support of Plaintiff's Opposition to Costco's Motion for Summary Judgment filed byElaine Sasaki. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 12, # 12 Exhibit 13, # 13 Exhibit 14, # 14 Exhibit 15, # 15 Exhibit 16, # 16 Exhibit 17, # 17 Exhibit 18, # 18 Exhibit 19, # 19 Exhibit 20−263, # 20 Exhibit 21−221, # 21 Exhibit 22−264, # 22 Exhibit 23−266, # 23 Exhibit 24, # 24 Exhibit 25, # 25 Exhibit 26−249, # 26 Exhibit 27−1031, # 27 Exhibit 28−1032, # 28 Exhibit 29−1033, # 29 Exhibit 30−1034, # 30 Exhibit 31−1035, # 31 Exhibit 32−1036, # 32 Exhibit 33−1037, # 33 Exhibit 34−1038, # 34 Exhibit 35, # 35 Exhibit 36, # 36 Exhibit 38, # 37 Exhibit 39−1039, # 38 Exhibit 40, # 39 Exhibit 41−1040, # 40 Exhibit

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04/09/2015
04/09/2015
04/09/2015
04/13/2015 04/16/2015 04/16/2015 04/16/2015 04/16/2015 04/16/2015

42−1043, # 41 Exhibit 43, # 42 Exhibit 44−158, # 43 Exhibit 45, # 44 Exhibit 46−1041, # 45 Exhibit 47−1042, # 46 Exhibit 48−1050, # 47 Exhibit 49−2035, # 48 Exhibit 50−2036, # 49 Exhibit 51−2037, # 50 Exhibit 52−1045, # 51 Exhibit 53−1030, # 52 Exhibit 54, # 53 Exhibit 55−2040, # 54 Exhibit 56, # 55 Exhibit 57−2041, # 56 Exhibit 58−2044, # 57 Exhibit 59−−2046, # 58 Exhibit 60, # 59 Exhibit 61−204A, # 60 Exhibit 62−211, # 61 Exhibit 63−212, # 62 Exhibit 64−206A, # 63 Exhibit 65−208, # 64 Exhibit 66−210, # 65 Exhibit 67−217, # 66 Exhibit 68−222, # 67 Exhibit 69−220, # 68 Exhibit 70−219, # 69 Exhibit 71−271, # 70 Exhibit 72−2039)(Related document(s) 834 , 835 , 833 , 837 , 836 ) (Larkin, Jocelyn) (Filed on 4/9/2015) (Entered: 04/09/2015)
839 Declaration of Robert L. Schug in Support of 834 Exhibits to an Administrative Motion to File Under Seal, 838 Declaration in Support, 835 Exhibits to an Administrative Motion to File Under Seal, 833 Administrative Motion to File Under Seal , 837 Proposed Order, 836 Exhibits to an Administrative Motion to File Under Seal filed byElaine Sasaki. (Attachments: # 1 Exhibit A, # 2 Exhibit A−1, # 3 Exhibit A−2, # 4 Exhibit A−3, # 5 Exhibit A−4, # 6 Exhibit A−5, # 7 Exhibit A−6, # 8 Exhibit A−7, # 9 Exhibit A−8, # 10 Exhibit A−9, # 11 Exhibit A−10, # 12 Exhibit A−11, # 13 Exhibit A−12, # 14 Exhibit A−13, # 15 Exhibit A−14, # 16 Exhibit A−15, # 17 Exhibit A−16, # 18 Exhibit A−17, # 19 Exhibit A−18, # 20 Exhibit A−19, # 21 Exhibit A−20, # 22 Exhibit A−21, # 23 Exhibit A−22, # 24 Exhibit A−23, # 25 Exhibit A−24, # 26 Exhibit A−25, # 27 Exhibit A−26, # 28 Exhibit A−27, # 29 Exhibit B)(Related document(s) 834 , 838 , 835 , 833 , 837 , 836 ) (Larkin, Jocelyn) (Filed on 4/9/2015) (Entered: 04/09/2015)
840 Declaration of Elaine M. Sasaki in Support of 839 Declaration in Support,,,, 834 Exhibits to an Administrative Motion to File Under Seal, 838 Declaration in Support,,,,,,,, 835 Exhibits to an Administrative Motion to File Under Seal, 836 Exhibits to an Administrative Motion to File Under Seal, 833 Administrative Motion to File Under Seal , 837 Proposed Order 2006 Declaration of Elaine M. Sasaki filed byElaine Sasaki. (Related document(s) 839 , 834 , 838 , 835 , 836 , 833 , 837 ) (Larkin, Jocelyn) (Filed on 4/9/2015) (Entered: 04/09/2015)
841 Declaration of Elaine M. Sasaki in Support of 839 Declaration in Support, 834 Exhibits to an Administrative Motion to File Under Seal, 838 Declaration in Support, 835 Exhibits to an Administrative Motion to File Under Seal, 836 Exhibits to an Administrative Motion to File Under Seal, 833 Administrative Motion to File Under Seal , 840 Declaration in Support,, 837 Proposed Order Second Declaration of Elaine M. Sasaki filed by Elaine Sasaki. (Related document(s) 839 , 834 , 838 , 835 , 836 , 833 , 840 , 837 ) (Larkin, Jocelyn) (Filed on 4/9/2015) (Entered: 04/09/2015)
842 Declaration of David D. Kadue in Support of 833 Administrative Motion to File Under Seal filed byCostco Wholesale Corporation. (Related document(s) 833 ) (Kadue, David) (Filed on 4/13/2015) (Entered: 04/13/2015)
843 PROPOSED ORDER re 842 Declaration in Support Administrative Motion to File Documents Under Seal filed by Costco Wholesale Corporation. (Kadue, David) (Filed on 4/16/2015) Modified on 4/17/2015 (slhS, COURT STAFF). (Entered: 04/16/2015)
844 REPLY (re 814 MOTION for Summary Judgment ) filed byCostco Wholesale Corporation. (Kadue, David) (Filed on 4/16/2015) (Entered: 04/16/2015)
845 Declaration of David Kadue in Support of 844 Reply to Opposition/Response to Motion for Summary Judgment filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit F−16, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L)(Related document(s) 844 ) (Kadue, David) (Filed on 4/16/2015) (Entered: 04/16/2015)
846 SUPPLEMENTAL PROPOSED ORDER re 814 MOTION for Summary Judgment filed by Costco Wholesale Corporation. (Attachments: # 1 Exhibit 1)(Kadue, David) (Filed on 4/16/2015) Modified on 4/17/2015 (slhS, COURT STAFF). (Entered: 04/16/2015)
847 ERRATA re 838 Declaration in Support, 833 Administrative Motion to File Under Seal Notice of Errata by Elaine Sasaki. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 8, # 8 Exhibit 10, # 9

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04/23/2015
04/30/2015 05/04/2015 05/04/2015 05/07/2015 05/07/2015 05/22/2015 05/26/2015
05/26/2015 05/26/2015 05/26/2015

Exhibit 16, # 10 Exhibit 17)(Larkin, Jocelyn) (Filed on 4/16/2015) (Entered: 04/16/2015)
848 Transcript of Proceedings held on 04/03/2015, before Magistrate Judge Joseph C. Spero. Court Reporter/Transcriber Leo T. Mankiewicz, CSR, RMR, CRR, Telephone number (415) 722−7045; email: leomank@gmail.com. FTR 10:11 a.m. − 10:14 a.m. = 3 minutes. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 5/14/2015. Redacted Transcript Deadline set for 5/26/2015. Release of Transcript Restriction set for 7/22/2015. (Mankiewicz, Leo) (Filed on 4/23/2015) (Entered: 04/23/2015)
849 Minute Entry for proceedings held before Hon. Edward M. Chen: Motion Hearing held on 4/30/2015 re 814 MOTION for Summary Judgment filed by Costco Wholesale Corporation. Under submission. Court Reporter Name: Kelly Polvi. (bpf, COURT STAFF) (Date Filed: 4/30/2015) Modified on 4/30/2015 (bpf, COURT STAFF). (Entered: 04/30/2015)
850 TRANSCRIPT ORDER by Elaine Sasaki for Court Reporter Kelly Polvi. (Larkin, Jocelyn) (Filed on 5/4/2015) (Entered: 05/04/2015)
851 ORDER re Supplemental Briefing for 814 Defendant's motion for summary judgment. Supplemental briefing shall be filed by May 7, 2015, at 12:00 p.m. Signed by Judge Edward M. Chen on 5/4/2015. (emclc2, COURT STAFF) (Filed on 5/4/2015) (Entered: 05/04/2015)
852 Supplemental Brief re 851 Order for Supplemental Briefing filed byCostco Wholesale Corporation. (Related document(s) 851 ) (Kadue, David) (Filed on 5/7/2015) (Entered: 05/07/2015)
853 Supplemental Brief re 851 Order Supplemental Brief in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment filed byElaine Sasaki. (Related document(s) 851 ) (Larkin, Jocelyn) (Filed on 5/7/2015) (Entered: 05/07/2015)
854 ORDER by Judge Edward M. Chen Granting in Part and Denying in Part 814 Defendant's Motion for Summary Judgment. (emcsec, COURT STAFF) (Filed on 5/22/2015) (Entered: 05/22/2015)
855 Transcript of Proceedings held on 04/30/2015, before Judge Edward M. Chen. Court Reporter Kelly Polvi, Telephone number 503.779.7406; email kpolvi@comcast.net. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 850 Transcript Order ) Release of Transcript Restriction set for 8/24/2015. (Related documents(s) 850 ) (Polvi, Kelly) (Filed on 5/26/2015) (Entered: 05/26/2015)
856 Declaration of Amy Oppenheimer in Support of 854 Order on Motion for Summary Judgment, Order on Administrative Motion to File Under Seal, Order on Stipulation, Redacted Version of the Declaration of Amy Oppenheimer filed byElaine Sasaki. (Related document(s) 854 ) (Larkin, Jocelyn) (Filed on 5/26/2015) (Entered: 05/26/2015)
857 Brief re 854 Order on Motion for Summary Judgment, Order on Administrative Motion to File Under Seal, Order on Stipulation; Redacted Version of Plaintiff's Opposition to Costco's 814 Motion for Summary Judgment or Partial Summary Judgment filed byElaine Sasaki. (Related document(s) 854 ) (Larkin, Jocelyn) (Filed on 5/26/2015) Modified on 5/27/2015 (slhS, COURT STAFF). (Entered: 05/26/2015)
858 EXHIBITS re 854 Order on Motion for Summary Judgment, Order on Administrative Motion to File Under Seal, Order on Stipulation, 857 Brief, Exhibit 11 − Redacted Hoover Testimony filed byElaine Sasaki. (Related document(s) 854 , 857 ) (Larkin,

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05/26/2015 06/02/2015 06/03/2015 06/04/2015 06/09/2015 06/09/2015 06/09/2015
06/09/2015 06/09/2015
06/09/2015 06/09/2015 06/09/2015 06/09/2015
06/09/2015

Jocelyn) (Filed on 5/26/2015) (Entered: 05/26/2015)
859 EXHIBITS re 854 Order on Motion for Summary Judgment, Order on Administrative Motion to File Under Seal, Order on Stipulation, 858 Exhibits, 857 Brief, Exhibit 37 − Vadney Investigation Notes filed byElaine Sasaki. (Related document(s) 854 , 858 , 857 ) (Larkin, Jocelyn) (Filed on 5/26/2015) (Entered: 05/26/2015)
860 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order Regarding Expert Testimony at Trial filed by Elaine Sasaki. (Larkin, Jocelyn) (Filed on 6/2/2015) (Entered: 06/02/2015)
861 STIPULATION AND ORDER re 860 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order Regarding Expert Testimony at Trial filed by Elaine Sasaki. Signed by Judge Edward M. Chen on 6/3/15. (bpf, COURT STAFF) (Filed on 6/3/2015) (Entered: 06/03/2015)
862 TRANSCRIPT ORDER by Costco Wholesale Corporation for Court Reporter Kelly Polvi. (Kadue, David) (Filed on 6/4/2015) (Entered: 06/04/2015)
863 Declaration of Dr. Ali Saad re Costco's Rule 56 Motion filed by Costco Wholesale Corporation. (Related document(s) 861 ) (Kadue, David) (Filed on 6/9/2015) Modified on 6/10/2015 (slhS, COURT STAFF). (Entered: 06/09/2015)
864 Declaration of Dr. Gregory Mitchell in Support of 861 Stipulation and Order, filed byCostco Wholesale Corporation. (Related document(s) 861 ) (Kadue, David) (Filed on 6/9/2015) (Entered: 06/09/2015)
865 Declaration of David Kadue in Support of 864 Declaration in Support of the Declaration of Dr. Gregory Mitchell filed byCostco Wholesale Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit C−8, # 5 Exhibit D)(Related document(s) 864 ) (Kadue, David) (Filed on 6/9/2015) (Entered: 06/09/2015)
866 Declaration of Richard F. Martell in Support of 861 Stipulation and Order, filed byElaine Sasaki. (Related document(s) 861 ) (Larkin, Jocelyn) (Filed on 6/9/2015) (Entered: 06/09/2015)
867 Declaration of Jocelyn D. Larkin in Support of 866 Declaration in Support of the Declaration of Richard F. Martell filed byElaine Sasaki. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Related document(s) 866 ) (Larkin, Jocelyn) (Filed on 6/9/2015) (Entered: 06/09/2015)
868 First MOTION in Limine Re Post−Promotion Evidence filed by Costco Wholesale Corporation. Motion Hearing set for 6/30/2015 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 6/5/2015. (Kadue, David) (Filed on 6/9/2015) (Entered: 06/09/2015)
869 Second MOTION in Limine to Exclude Amy Oppenheimer Expert Evidence filed by Costco Wholesale Corporation. Motion Hearing set for 6/30/2015 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 6/5/2015. (Kadue, David) (Filed on 6/9/2015) (Entered: 06/09/2015)
870 Third MOTION in Limine to Exclude Focus Group, BOLD and Diversity Initiative Evidence filed by Costco Wholesale Corporation. Motion Hearing set for 6/30/2015 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 6/5/2015. (Kadue, David) (Filed on 6/9/2015) (Entered: 06/09/2015)
871 Fourth MOTION in Limine to Exclude Allegations re: Personal Conduct of Operations Executive filed by Costco Wholesale Corporation. Motion Hearing set for 6/30/2015 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 6/5/2015. (Kadue, David) (Filed on 6/9/2015) (Entered: 06/09/2015)
872 Fifth MOTION in Limine to Exclude Relationship Evidence filed by Costco Wholesale Corporation. Motion Hearing set for 6/30/2015 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 6/5/2015. (Kadue, David)

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06/09/2015 06/09/2015 06/09/2015 06/09/2015
06/09/2015 06/09/2015 06/09/2015 06/10/2015
06/12/2015 06/23/2015 06/25/2015

(Filed on 6/9/2015) (Entered: 06/09/2015)
873 TRIAL BRIEF by Costco Wholesale Corporation. (Kadue, David) (Filed on 6/9/2015) (Entered: 06/09/2015)
874 Proposed Findings of Fact by Costco Wholesale Corporation . (Kadue, David) (Filed on 6/9/2015) (Entered: 06/09/2015)
875 First MOTION in Limine Plaintiff's Motion in Limine to Prevent Costco From Asserting a "Same Decision" Affirmative Defense at Trial filed by Elaine Sasaki. Motion Hearing set for 6/30/2015 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 6/5/2015. Replies due by 6/12/2015. (Larkin, Jocelyn) (Filed on 6/9/2015) (Entered: 06/09/2015)
876 Pretrial Conference Statement by Elaine Sasaki Joint Pretrial Conference Statement. (Attachments: # 1 Appendix A, # 2 Appendix B − Tab 1, # 3 Appendix B − Tab 2, # 4 Appendix C, # 5 Appendix D − Tab 1, # 6 Appendix D − Tab 2, # 7 Appendix E, # 8 Guy Berry Deposition Excerpts, # 9 Chris Bolves Deposition Excerpts, # 10 Don Christensen Deposition Excerpts (Part 1), # 11 Don Christensen Deposition Excerpts (Part 2), # 12 Don Christensen Deposition Excerpts (Part 3), # 13 Wendy Davis Deposition Excerpts, # 14 Richard DiCerchio Deposition Excerpts, # 15 Richard Drogin Deposition Excerpts, # 16 Frank Farcone Deposition Excerpts, # 17 Caton Frates Deposition Excerpts, # 18 Mike Hayes Deposition Excerpts, # 19 Dennis Hoover Deposition Excerpts, # 20 Craig Jelinek Deposition Excerpts, # 21 John Matthews Deposition Excerpts, # 22 Dan McMurray Deposition Excerpts, # 23 Jim Sinegal Deposition Excerpts, # 24 Ron Vachris Deposition Excerpts, # 25 Judy Vadney Deposition Excerpts (Part 1), # 26 Judy Vadney Deposition Excerpts (Part 2), # 27 Judy Vadney Deposition Excerpts (Part 3), # 28 Dennis Zook Deposition Excerpts)(Larkin, Jocelyn) (Filed on 6/9/2015) (Entered: 06/09/2015)
877 Proposed Findings of Fact by Elaine Sasaki Plaintiff's Proposed Findings of Fact and Conclusions of Law. (Larkin, Jocelyn) (Filed on 6/9/2015) (Entered: 06/09/2015)
878 TRIAL BRIEF Plaintiff's Trial Brief by Elaine Sasaki. (Larkin, Jocelyn) (Filed on 6/9/2015) (Entered: 06/09/2015)
879 Parties' Joint Statement Regarding Trial Exhibits 876 by Elaine Sasaki. (Larkin, Jocelyn) (Filed on 6/9/2015) Modified on 6/10/2015 (slhS, COURT STAFF). (Entered: 06/09/2015)
880 CLERK'S NOTICE specially setting a telephonic status conference (to discuss the parameters of the trial) for Friday 6/12/2015 03:00 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Plaintiff's counsel Jocelyn Larkin is directed to initiate the conference call by calling defense counsel David Kadue first, then call the Court at (415) 522−2117 at 3:00 p.m.. (This is a text−only entry generated by the court. There is no document associated with this entry.) (bpf, COURT STAFF) (Filed on 6/10/2015) (Entered: 06/10/2015)
881 Minute Entry for proceedings held before Edward M. Chen: Status Conference held on 6/12/2015. Bench Trial to begin on Friday 7/24/2015 08:30 AM before Edward M. Chen. Court Reporter Name Rhonda Aquilina. (bpf, COURT STAFF) (Date Filed: 6/12/2015) (Entered: 06/12/2015)
882 Pretrial Conference Statement by Costco Wholesale Corporation First Supplemental Joint Pretrial Conference Statement. (Attachments: # 1 Appendix Appendix B − Tab 1, # 2 Appendix Appendix B − Tab 2, # 3 Appendix Appendix C − Tab 1, # 4 Appendix Appendix C − Tab 2)(Kadue, David) (Filed on 6/23/2015) (Entered: 06/23/2015)
883 Pretrial Conference Statement by Elaine Sasaki Parties' Amended Deposition Designations (Appendix E to Joint Pretrial Conference Statement). (Attachments: # 1 Amended Berry Depo Excerpts, # 2 Amended Bolves Depo Excerpts, # 3 Amended Davis Depo Excerpts, # 4 Amended DiCerchio Depo Excerpts, # 5 Drogin Depo Excerpts, # 6 Amended Farcone Depo Excerpts, # 7 Amended Frates Depo Excerpts, # 8 Amended Hayes Depo Excerpts, # 9 Amended Hoover Depo Excerpts, # 10 Amended Jelinek Depo Excerpts, # 11 Amended Matthews Depo Excerpts, # 12 Sinegal Depo Excerpts, # 13 Amended Vachris Depo Excerpts, # 14 Amended Vadney

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Depo Excerpts (Part I), # 15 Amended Vadney Depo Excerpts (Part II), # 16 Amended Zook Depo Excerpts)(Larkin, Jocelyn) (Filed on 6/25/2015) (Entered: 06/25/2015)
884 NOTICE of Appearance by Mark P. Grajski (Grajski, Mark) (Filed on 6/29/2015) (Entered: 06/29/2015)
885 Minute Entry for proceedings held before Edward M. Chen: Pretrial Conference held on 6/30/2015. Bench trial to begin on 7/24/15 at 8:30 a.m. Closing set for 8/17/2015 01:30 PM before Edward M. Chen. Court Reporter Name Pam Batalo. (bpf, COURT STAFF) (Date Filed: 6/30/2015) (Entered: 06/30/2015)
886 FINAL PRETRIAL CONFERENCE ORDER by Judge Edward M. Chen; deferring ruling on 868 Defendant's Motion in Limine; granting 869 Defendant's Motion in Limine; deferring ruling on 870 Defendant's Motion in Limine; denying 871 Defendant's Motion in Limine; deferring ruling on 872 Motion in Limine; finding as moot 875 Plaintiff's Motion in Limine (emclc2, COURT STAFF) (Filed on 7/6/2015) (Entered: 07/06/2015)
887 Letter from Counsel Re Joint Report on ADR . (Kadue, David) (Filed on 7/7/2015) (Entered: 07/07/2015)
888 TRANSCRIPT ORDER for Daily Trial by Elaine Sasaki. (Larkin, Jocelyn) (Filed on 7/8/2015) (Entered: 07/08/2015)
889 TRANSCRIPT ORDER for Daily Trial by Costco Wholesale Corporation. (Kadue, David) (Filed on 7/9/2015) (Entered: 07/09/2015)
890 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971−9668624.) filed by Costco Wholesale Corporation. (Attachments: # 1 ARDC letter)(Chandrasekaran, Uma) (Filed on 7/10/2015) (Entered: 07/10/2015)
891 Tentative Order of Live Witnesses re 886 Order on Motion in Limine by Elaine Sasaki. (Larkin, Jocelyn) (Filed on 7/10/2015) Modified on 7/13/2015 (slhS, COURT STAFF). (Entered: 07/10/2015)
892 Summary Chart Pursuant to the Court's Final Pretrial Conference Order re 886 Order on Motion in Limine by Elaine Sasaki. (Larkin, Jocelyn) (Filed on 7/10/2015) Modified on 7/13/2015 (slhS, COURT STAFF). (Entered: 07/10/2015)
893 ORDER REFERRING CASE to Magistrate Judge Joseph C. Spero for Settlement. Settlement Conference set for 7/21/2015 09:30 AM in Courtroom G, 15th Floor, San Francisco. Signed by Judge Edward M. Chen on 7/13/15. (bpf, COURT STAFF) (Filed on 7/14/2015) (Entered: 07/14/2015)
894 Notice of Settlement Conference and Order Setting Settlement Conference before Chief Magistrate Judge Joseph C. Spero. Settlement Conference set for 7/21/2015 09:30 AM in Courtroom G, 15th Floor, San Francisco. Confidential settlement statements due Thursday, 7/16/15.. Signed by Chief Magistrate Judge Joseph C. Spero on 7/14/15. (klhS, COURT STAFF) (Filed on 7/14/2015) (Entered: 07/14/2015)
895 ORDER by Judge Edward M. Chen granting 890 Motion for Pro Hac Vice (bpf, COURT STAFF) (Filed on 7/14/2015) (Entered: 07/14/2015)
896 MOTION for Order Regarding Use of Trial Equipment filed by Elaine Sasaki. Motion Hearing set for 7/24/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 7/30/2015. Replies due by 8/6/2015. (Attachments: # 1 Proposed Order)(Larkin, Jocelyn) (Filed on 7/16/2015) Modified on 7/17/2015 (slhS, COURT STAFF). (Entered: 07/16/2015)
897 ORDER by Judge Edward M. Chen granting 896 Motion to bring equipment (bpf, COURT STAFF) (Filed on 7/16/2015) (Entered: 07/16/2015)
898 Proposed Order Granting Use of Trial Equipment by Costco Wholesale Corporation. (Attachments: # 1 Proposed Order Granting Use of Trial Equipment)(Kadue, David) (Filed on 7/17/2015) (Entered: 07/17/2015)
899 MOTION for Order Regarding Use of Trial Equipment filed by Costco Wholesale Corporation. Motion Hearing set for 7/24/2015 08:30 AM in Courtroom 5, 17th Floor,

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San Francisco before Edward M. Chen. Responses due by 7/31/2015. Replies due by 8/7/2015. (Attachments: # 1 Proposed Order Granting Use of Trial Equipment)(Kadue, David) (Filed on 7/17/2015) (Entered: 07/17/2015)
900 Costco's Response to Plaintiff's Summary Chart Pursuant to the Court's Final Pretrial Conference Order (ECF No. 886) re 892 Statement, 886 Order on Motion in Limine by Costco Wholesale Corporation. (Kadue, David) (Filed on 7/17/2015) Modified on 7/22/2015 (slhS, COURT STAFF). (Entered: 07/17/2015)
901 ORDER by Judge Edward M. Chen granting 899 Motion to bring trial equipment (bpf, COURT STAFF) (Filed on 7/20/2015) (Entered: 07/20/2015)
902 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Settlement Conference held on 7/21/2015. Case did not settle.FTR Time Not Reported. (klhS, COURT STAFF) (Date Filed: 7/21/2015) (Entered: 07/21/2015)
903 Amended MOTION for Order allowing use of equipment at trial re 896 MOTION for Order Regarding Use of Trial Equipment, 897 Order on Motion for Miscellaneous Relief; −Amended Motion for Order Regarding Use of Trial Equipment filed by Elaine Sasaki. Motion Hearing set for 7/24/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 8/5/2015. Replies due by 8/12/2015. (Attachments: #(1) Proposed Order)(Larkin, Jocelyn) (Filed on 7/22/2015) (Entered: 07/22/2015)
904 ORDER by Judge Edward M. Chen granting 903 Motion to bring equipment (bpf, COURT STAFF) (Filed on 7/22/2015) (Entered: 07/22/2015)
905 Minute Entry for proceedings held before Edward M. Chen: Status Conference held on 7/24/2015. Parties reported to the Court that case is settled and a stipulation for dismissal will be filed next week. Trial and trial related deadlines are vacated. Court Reporter Name Debra Pas. Plaintiff Attorney Jocelyn Larkin. Defendant Attorney David Kadue. This is a text only Minute Entry (bpf, COURT STAFF) (Date Filed: 7/24/2015) (Entered: 07/24/2015)
906 STIPULATION WITH [PROPOSED] ORDER; −Stipulation and [Proposed] Order Granting Voluntary Dismissal of Plaintiff Elaine Sasaki's Claims filed by Elaine Sasaki. (Larkin, Jocelyn) (Filed on 7/27/2015) (Entered: 07/27/2015)
907 STIPULATION AND ORDER re 906 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order Granting Voluntary Dismissal of Plaintiff Elaine Sasaki's Claims filed by Elaine Sasaki. Signed by Judge Edward M. Chen on 7/28/15. (bpf, COURT STAFF) (Filed on 7/28/2015) (Entered: 07/28/2015)