Solano v. the Kroger Co.

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 19, 2026
• Docket: 25-536
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 19 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ELISHA SOLANO; KATHLEEN ZACH; No. 25-536 DENISE CONROY, individually and on behalf of other customers, D.C. No. 3:18-cv-01488-AR Plaintiffs - Appellees,

v. MEMORANDUM*

THE KROGER CO., DBA Fred Meyer, Inc.,

Defendant - Appellant.

Appeal from the United States District Court for the District of Oregon Jeffrey J. Armistead, Magistrate Judge, Presiding

Argued and Submitted February 3, 2026 Portland, Oregon

Before: CHRISTEN, HURWITZ, and DESAI, Circuit Judges.

The Kroger Company (Fred Meyer) appeals a district court order granting

class certification.1 We have jurisdiction pursuant to 28 U.S.C. § 1292(e) and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Because the parties are familiar with the facts, we do not recount them here. Federal Rule of Civil Procedure 23(f). We review standing de novo, In re

Palmdale Hills Prop., LLC, 654 F.3d 868, 873 (9th Cir. 2011), and the decision to

certify a class for abuse of discretion, DZ Rsrv. v. Meta Platforms, Inc., 96 F.4th

1223, 1231 (9th Cir. 2024). Underlying factual findings are reviewed for clear

error. In re Palmdale, 654 F.3d at 873; DZ Rsrv., 96 F.4th at 1232.

Fred Meyer argues that Article III precludes class certification because the

class includes unnamed members who have not suffered an injury, and the named

plaintiffs’ injuries are self-inflicted. It also argues common issues do not

predominate over individual issues. See Fed. R. Civ. P. 23(b)(3). We reject those

arguments and affirm.

1. Fred Meyer contends that some unnamed class members did not suffer

injury as of the time the complaint was filed because they received refunds for the

bottle deposits Fred Meyer wrongfully collected from them. In Fred Meyer’s

view, this precludes certification because “[n]o class may be certified that contains

members lacking Article III standing.” Denney v. Deutsche Bank AG, 443 F.3d

253, 263–64 (2d Cir. 2006). To the contrary, we have squarely held that “Article

III’s requirements are satisfied before a class is certified as long as at least one

named plaintiff has standing,” regardless of “whether the class action seeks money

damages or equitable relief.” Healy v. Milliman, Inc., 164 F.4th 701, 706 (9th Cir.

2026). Thus, even if the class contains uninjured, unnamed members, at class

2 25-536 certification, our standing inquiry focuses on the named plaintiffs. See id. at 708

(holding that unnamed class members must demonstrate evidence of standing

“after class certification but prior to trial at summary judgment”).

2. Fred Meyer argues the named plaintiffs’ claimed injuries cannot support

standing because they failed to seek refunds from Fred Meyer for the wrongfully

collected bottle deposits. To be sure, “self-inflicted injuries . . . not fairly

traceable” to the defendant’s conduct do “not give rise to standing.” Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 418 (2013); see also McConnell v. FEC, 540

U.S. 93, 228 (2003). But the named plaintiffs’ injuries were not self-inflicted, as

the record shows only the possibility that they might have been able to obtain a

refund if they sought one. Fred Meyer did not issue a product recall, expressly

offer refunds, or even notify consumers that it had erroneously charged bottle

deposits. Some consumers may have been able to obtain refunds through Fred

Meyer’s generic customer service programs, but the evidence suggests that Fred

Meyer did not consistently provide refunds to customers who requested them. On

this record, refunds were not so readily available that the failure to seek them may

be fairly characterized as an instance of Plaintiffs “merely . . . inflicting harm on

themselves.” Clapper, 568 U.S. at 416.

3. Fred Meyer argues the district court abused its discretion by concluding

that Plaintiffs satisfied the predominance requirement of Federal Rule of Civil

3 25-536 Procedure 23(b)(3). Fred Meyer posits that any class member who received a

refund has not suffered an injury and contends that determining whether each class

member received a refund requires complex, individualized inquiries. But even

assuming that some class members were adequately compensated through refunds,

the district court reasonably found that common issues predominated over

individual ones.

The possibility that a class “potentially includes more than a de minimis

number of uninjured class members” does not preclude certification. Olean v.

Wholesale Grocery Coop. v. Bumble Bee Foods LLC, 31 F.4th 651, 669 (9th Cir.

2022) (en banc); see also Lytle v. Nutramax Lab’ys, Inc., 114 F.4th 1011, 1026–27

(9th Cir. 2024). “When individualized questions relate to the injury status of class

members, Rule 23(b)(3) requires that the court determine whether individualized

inquiries about such matters would predominate over common questions.” Olean,

31 F.4th at 668; see also Van v. LLR, Inc., 61 F.4th 1053, 1067 (9th Cir. 2023).

Here, the district court’s predominance determination “falls within a broad

range of permissible conclusions.” Olean, 31 F.4th at 669 (citation modified). All

class members suffered a common, ascertainable injury as a result of common

conduct: they each paid a 10-cent premium for their orange juice products because

Fred Meyer erroneously collected a bottle deposit. According to Fred Meyer, class

members who received refunds either received a full refund for the orange juice

4 25-536 they purchased or a refund of 10 cents. Thus, class members either: (i) received no

refund; (ii) received a refund of 10 cents; or (iii) received a refund for the entire

purchase price. Determining the category into which each class member falls may

be an individualized inquiry, but it is not a particularly “involved” one. See Lara

v. First Nat’l Ins. Co. of Am., 25 F.4th 1134, 1139 (9th Cir. 2022); see also

Bowerman v. Field Asset Servs., Inc., 60 F.4th 459, 469–71 (9th Cir. 2023). Nor

does it demand an examination “into the circumstances and motivations behind”

tens of thousands of individual discounts. See Van, 61 F.4th at 1069.

AFFIRMED.

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