Solano v. the Kroger Co.

── Solano v. the Kroger Co. ── Court: Court of Appeals for the Ninth Circuit Date: May 19, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 19 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ELISHA SOLANO; KATHLEEN ZACH; No. 25-536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 o