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Mr. Coulombe filed the second motion in the form of a motion for reconsideration of the

court’s order of November 16, 2006 (Dkt. # 40). The court treated his motion for reconsideration as an

opening brief in a second motion for partial summary judgment because it presented an issue that was

not previously briefed by the parties nor considered by the court. 

ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

LEONARD COULOMBE,

Plaintiff,

v.

TOTAL RENAL CARE HOLDINGS,

INC., et al.,

Defendants.

CASE NO. C06-504JLR

ORDER

I. INTRODUCTION

This matter comes before the court on motions for partial summary judgment from

Plaintiff Leonard Coulombe (Dkt. ## 16, 45).1

 Having considered the parties’ briefing

and all supporting evidence, the court DENIES Mr. Coulombe’s motions. This order

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Although this action names two Defendants, DaVita, Inc. and Total Renal Care Holdings, Inc.,

the latter is not a separate entity but rather the former name of DaVita. The court refers to DaVita as

the sole Defendant. 

3

The court declines to recite a more comprehensive factual background and incorporates by

reference the background section of its order of November 16, 2006. 

ORDER – 2

augments the court’s order of November 16, 2006 (Dkt. # 40) wherein the court held in

favor of Defendants on cross-motions for partial summary judgment. 

II. BACKGROUND

Mr. Coulombe was an employee of Defendant DaVita, Inc. (“DaVita”)2 from 1996

until his termination in November 2005. On three occasions from 1997 to 1998, DaVita

awarded Mr. Coulombe stock options. This action arises from Mr. Coulombe’s

relinquishment of those stock options to DaVita in November 2000.3

Mr. Coulombe brought this action asserting a variety of theories of relief,

including a claim that DaVita’s collection or receipt of his stock options violates

Washington’s rebate of wages or so-called anti-kickback statute, RCW § 49.52.050

(“Section 050”), and its related civil enforcement provision, RCW § 49.52.070 (“Section

070”). The parties cross-moved for partial summary judgment on DaVita’s liability for

violation of the anti-kickback statute (Dkt. ##16, 30). The court granted DaVita’s

motion, holding that Mr. Coulombe could not recover under the civil enforcement

provision, Section 070, because he knowingly relinquished his stock options. See Order

of November 16, 2006.

In a motion for reconsideration (Dkt. # 45), Mr. Coulombe raised an issue that was

not previously briefed by the parties nor considered by the court: whether Washington

law recognizes an implied private cause of action for damages arising from the underlying

remedial criminal statute, Section 050, where a plaintiff, as here, does not satisfy the

requirements of the related civil enforcement provision, Section 070. The court construed

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the motion for reconsideration as a motion for summary judgment and invited briefing on

the issue. See Order of December 8, 2006 (Dkt. # 47).

III. ANALYSIS

On a motion for summary judgment, the court must draw all inferences from the

admissible evidence in the light most favorable to the non-moving party. Addisu v. Fred

Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Summary judgment is appropriate

where there is no genuine issue of material fact and the moving party is entitled to a

judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial

burden of showing the absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the

opposing party must show that there is a genuine issue of fact for trial. Matsushita Elect.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must

present significant and probative evidence to support its claim or defense. Intel Corp. v.

Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). When confronted

with purely legal questions, the court does not defer to the non-moving party.

A. Washington Courts Have Not Expressly Recognized an Implied Right of

Action Under Section 050, Independent of the Remedial Provision of Section

070. 

Mr. Coulombe contends that he is entitled to pursue an implied private cause of

action under subsection (1) of Section 050, arising from DaVita’s receipt of Mr.

Coulombe’s relinquished stock options. Section 050 is a criminal statute barring certain

labor practices:

Any employer or officer, vice principal or agent of any employer, whether said

employer be in private business or an elected public official, who

(1) Shall collect or receive from any employee a rebate of any part of

wages theretofore paid by such employer to such employee; [or]

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(2) Wilfully and with intent to deprive the employee of any part of his

wages, shall pay any employee a lower wage than the wage such

employer is obligated to pay such employee by any statute, ordinance,

or contract; . . . 

Shall be guilty of a misdemeanor.

RCW § 49.52.050. 

A second statute, Section 070, provides a civil remedy, including exemplary

damages, costs of suit, and attorneys’ fees for certain violations of Section 050:

Any . . . employer who shall violate any of the provisions of subdivisions (1)

and (2) of RCW 49.52.050 shall be liable in a civil action by the aggrieved

employee or his assignee to judgment for twice the amount of the wages

unlawfully rebated or withheld by way of exemplary damages, together with

costs of suit and a reasonable sum for attorney’s fees: PROVIDED,

HOWEVER, That the benefits of this section shall not be available to any

employee who has knowingly submitted to such violations.

RCW § 49.52.070. 

The Washington Legislature enacted both statutes in 1939. The Legislature

intended subsection (1) of Section 050, the anti-kickback measure, to “prevent abuses by

employers in a labor-management setting, e.g., coercing rebates from employees in order

to circumvent collective bargaining agreements.” Ellerman v. Centerpoint Prepress, Inc.,

22 P.3d 795, 798 (Wash. 2001). 

In its order of November 16, 2006, the court held that Mr. Coulombe had no claim

for damages under Section 070 because he deliberately and intentionally relinquished his

stock options within the “knowingly submitted” proviso of that Section. Mr. Coulombe

now argues that Section 070 does not provide the sole basis for recovery under the antikickback measure and that he may pursue an implied right of action arising directly under

Section 050. See Order of November 16, 2006.

Mr. Coulombe fails to present the court with conclusive authority to support his

contention. The cases cited by Mr. Coulombe do not demonstrate that Section 050

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Mr. Coulombe underscores dicta from Chelius wherein the court acknowledged a distinction

between liability for underpaid wages and liability for double damages arising under Section 070. See

Chelius, 27 P.3d at 682. Mr. Coulombe employs this language to argue that Section 070 is not the

exclusive remedy for a violation of Section 050, but rather provides for exemplary damages. This

argument is unavailing. The Chelius court’s reference to a Washington employee’s claim for underpaid

wages as distinct from recovery under Section 070 does not support the general existence of an implied

remedy under Section 050. An employer’s obligation to pay wages arises from a legal basis

independent of Section 050. See RCW § 49.52.050(2) (making it a misdemeanor to pay an employee a

lower wage than the employer is “obligated” to pay by “any statute, ordinance, or contract”).

ORDER – 5

provides a civil remedy independent of Section 070 because none of the cases directly

considered that question. For example, in Keenan v. Allan, 889 F. Supp. 1320, 1378

(E.D. Wash. 1995), plaintiffs sought recovery of double wages and attorneys’ fees under

Section 070. The court in Keenan did not address whether there is an implied cause of

action under Section 050 when recovery under Section 070 is unavailable. Id. Likewise,

that issue was not before the court in another case cited by Mr. Coulombe, Pope v. Univ.

of Wash., 852 P.2d 1055, 1061-62 (Wash. 1994). The Pope court, in reviewing a trial

court’s award of double damages under Section 070, observed, “RCW 49.52.070 creates

civil liability for violation of RCW 49.52.050, including double damages, costs, and

attorney fees.” Id. at 1061 (emphasis added). Again, the court considered the statutes in

concert, not as independent bases for recovery. Finally, in Chelius v. Questar v.

Microsystems, Inc., 27 P.3d 681, 682 (Wash. Ct. App. 2001), the sole issue on appeal

was whether plaintiffs were entitled to remedies under Section 070; the court did not

consider a private cause of action arising solely under Section 050.4

 

In sum, the court is unaware of any Washington case to specifically address this

issue and find an implied right of action arising under the anti-kickback provision of

Section 050, independent of the remedial provision of Section 070. Even so, Mr.

Coulombe is correct in observing that Washington courts have not foreclosed the

existence of such an implied cause of action. 

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In the absence of any clear state law recognizing an implied right of action under

Section 050, this court, sitting in diversity, is constrained to determine how a Washington

court would decide the issue. See U.S. Fidelity & Guar. Co. v. Anderson Const. Co., 260

F.2d 172, 176 (9th Cir. 1958). The court therefore turns to the question of whether

Washington courts would imply a private right of action arising under Section 050,

independent of the remedial provisions of Section 070 under the facts and circumstances

of this case. 

B. Mr. Coulombe Fails to Satisfy the Test Under Washington Law for Finding an

Implied Right of Action Under Section 050. 

To determine whether to imply a private cause of action arising from a remedial

criminal statute, the Washington State Supreme Court in Bennett v. Hardy, 784 P.2d

1258, 1261-62 (Wash. 1990), borrowed from the familiar test employed by federal courts. 

Under this test, a court resolves: “first, whether the plaintiff is within the class for whose

‘especial’ benefit the statute was enacted; second, whether legislative intent, explicitly or

implicitly, supports creating or denying a remedy; and third, whether implying a remedy

is consistent with the underlying purpose of the legislation.” Id. (citing Cort v. Ash, 422

U.S. 66, 78 (1975)). Mr. Coulombe contends that the Bennett inquiry resolves the issue

in favor of finding an implied private right of action. The court concludes otherwise.

The court initially considers whether Mr. Coulombe falls within the class of

individuals the Legislature intended to protect under Section 050. Under the terms of the

statue, an employer who “collect[s] or receive[s] from any employee a rebate of any part

of wages” shall be guilty of a misdemeanor. RCW § 49.52.050. In view of the

Washington State Supreme Court’s admonition that this statute must be liberally

construed to advance the Legislature’s intent to protect employee wages and assure

payment, Schilling v. Radio Holdings, Inc., 961 P.2d 371, 375 (Wash. 1998) (internal

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In so doing, the court declines to consider whether the Legislature intended to protect and

ensure payment of stock options as wages, or whether relinquishing unexercised options constitutes a

rebate under the statute. The court need not wade into these questions given the decisive weight of the

second factor of the Bennett test.

ORDER – 7

citation omitted), the court concludes that Mr. Coulombe, a former employee seeking to

recover a rebate, falls within the class for whose especial benefit the statute was enacted.5

The second inquiry, whether legislative intent supports the creation or denial of an

implied remedy, weighs against the finding of an implied right of action under Section

050. Legislative intent lies at the core of the test for recognizing an implied cause of

action. The test is triggered in the first instance by an assumption that the legislature

would not enact a statute granting rights to an identifiable class without enabling

members of that class to enforce those rights. See Bennett, 784 P.2d at 1261 (citing

Cort, 422 U.S. at 78); see also State ex. Rel. Phillips v. Wash. State Liquor Control Bd.,

369 P.2d 844, 847 (Wash. 1962) (“Courts have held that when a statute gives a new right

and no specific remedy, the common law will provide a remedy.”). Under such

circumstances, a court can “assume that the legislature is aware of the doctrine of implied

statutory causes of action and also assume that the legislature would not enact a remedial

statute granting rights to an identifiable class without enabling members of that class to

enforce those rights.” Bennett, 784 P.2d at 1261 (citing McNeal v. Allen, 621 P.2d 1285,

1290 (Wash. 1980) (Brachtenbach, J. dissenting)).

First, it is not apparent that by enacting Section 050 the Legislature necessarily

intended to create a new right on the part of employees within the protected class. The

court accedes to a recent statement of the Washington Supreme Court with respect to the

purpose of Section 050: 

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The court recognizes that the statute’s reference to the obligation to pay a wage by “statute,

ordinance, or contract” is contained in subsection (2), rather than subsection (1), the anti-kickback

provision of section 050. See RCW § 49.52.050. Nevertheless, in ascertaining intent from statutory

language, the provision at issue must be evaluated in the context of the entire statute. See In re Sehome

Park Care Ctr., 903 P.2d 443, 445 (Wash. 1995). 

ORDER – 8

[T]he aim or purpose of the act is to see that the employee shall realize the full

amount of the wages which by statute, ordinance, or contract he is entitled to

receive from his employer, and which the employer is obligated to pay, and,

further, to see that the employee is not deprived of such right . . . .”

Schilling, 961 P.2d at 375 (emphasis added) (quoting State v. Carter, 142 P.2d 403, 407

(1943)). Indeed, under the plain terms of the statute, the Legislature intended that Section

050 would reinforce an independent, preexisting obligation to pay wages – an obligation

not created by Section 050 but arising from “statute, ordinance, or contract.” See RCW §

49.52.050.6

Moreover, even assuming that the Legislature intended to create a new right on the

part of employees to recover relinquished wages, Washington courts generally find

implied rights of action only where the legislature has provided an express right without

also providing for a corresponding civil remedy. See State ex rel. Breslin v. Todd, 113

P.2d 315, 316 (Wash. 1941) (“It is a general rule that, when a statute gives a new right

and prescribes a particular remedy for its enforcement, such remedy is exclusive. . . .”)

(internal citations omitted), Bennett, 784 P.2d at 1261 (“The Restatement of Torts

recognizes an implied right of action . . . [w]hen a legislative provision protects a class of

persons . . . but does not provide a civil remedy.”) (emphasis added); accord

Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19-20 (1979) (“[I]t is an

elemental canon of statutory construction that where a statute expressly provides a

particular remedy or remedies, a court must be chary of reading others into it.”) (citing

Botany Mills v. United States, 278 U.S. 282, 289 (1929) (“When a statute limits a thing

to be done in a particular mode, it includes the negative of any other mode.”)). This

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Mr. Coulombe contends that this court should follow Chu Chung v. New Silver Palace Rest.,

272 F. Supp.2d 314 (S.D.N.Y. 2003), in which the court, sitting in diversity, recognized a private right

of action arising under an “identical” criminal anti-kickback statute. See Pl.’s Reply at 5 (Dkt. # 49). 

This case is inapposite because the statute at issue did not contain a related civil enforcement provision

setting forth an explicit limitation on a plaintiff’s right to recovery.

ORDER – 9

“elemental canon of statutory construction” is an extension of “the principle that the

expression of one thing is the exclusion of the other.” Transamerica, 444 U.S. at 19. 

Thus, where the legislature has provided an express remedy for violations of a statute, in

the absence of strong indicia of contrary intent, courts are compelled to conclude that the

legislature provided precisely the remedies it considered appropriate. Karahalios v. Nat’l

Fed’n of Fed. Employees, 489 U.S. 527, 533 (1989) (internal quotations omitted). 

At the time the Washington Legislature enacted Section 050, it prescribed a

specific civil remedy, Section 070. Under the explicit terms of Section 070, the

Legislature chose to allow employees to recover exemplary damages, attorney’s fees, and

costs of suit, provided that they did not knowingly rebate their wages. See RCW

§ 49.52.070 (“[T]he benefits of this section shall not be available to any employee who

has knowingly submitted to such violations.”). The Legislature’s expression of this

particular limitation compels the court to conclude that the Legislature intended to allow

only those employees who have not knowingly rebated their wages to pursue a private

cause of action under the anti-kickback statute.7

 Plaintiffs such as Mr. Coulombe, who

deliberately and intentionally relinquish wages, are left to sue on the underlying

obligation. In this case, Mr. Coulombe alleges breach of contract and violations of other

provisions of Washington law, RCW § 49.48, et seq. See Compl. at 6-7 (Dkt. # 2). 

Third and finally, the court considers whether implying a remedy is consistent

with the underlying purpose of the statute. The court concludes that creating a new

remedy arising directly under Section 050 would be incongruous with the terms and

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purpose of Sections 050 and 070 of the anti-kickback statute. Section 050 explicitly

refers to an employer’s obligation to pay wages arising by “statute, ordinance, or

contract.” See RCW § 49.52.050. Section 070 explicitly restricts the availability of a

civil remedy to those who have not knowingly given something up to their employer. See

RCW § 49.52.070. Contrary to Mr. Coulombe’s contention, this conclusion does not

lead to “absurd” results. See Pl.’s Reply at 8. Absent a generalized, implied right to

recover under Section 050, Mr. Coulombe remains free to pursue claims under alternate

theories regarding DaVita’s obligation to return the stock options. Indeed, Mr. Coulombe

alleges violations of RCW § 49.48, et seq., breach of contract, unjust enrichment, and

quantum meruit. See Compl. at 6-7. The court concludes that Mr. Coulombe may not

pursue an implied right of action under Section 050.

IV. CONCLUSION

For the reasons stated above, the court DENIES Mr. Coulombe’s motions for

partial summary judgment (Dkt. ## 16, 45). This order leaves pending Mr. Coulombe’s

RCW § 49.48, et seq., breach of contract, unjust enrichment, and quantum meruit claims. 

Dated this 2nd day of February, 2007.

A JAMES L. ROBART

United States District Judge

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