A Ninth Circuit appellate panel on Wednesday sharply questioned legal counsel for Whole Foods Market regarding a significant pivot in the company’s jurisdictional strategy within a proposed class action lawsuit. The litigation, which centers on allegations that the grocery giant failed to include mandatory wage information in its job listings, has become a focal point for the evolving intersection of state labor transparency laws and federal standing requirements. During oral arguments, the judges pressed Whole Foods to explain its reversal on whether the case belongs in federal court, a move that could determine the future of how pay transparency statutes are enforced across the Western United States.
The dispute stems from Washington State’s Equal Pay and Opportunities Act (EPOA), which was amended in early 2023 to require employers to disclose salary ranges and benefit information in all job postings. The plaintiff, representing a proposed class of job seekers, alleges that Whole Foods routinely omitted these details, thereby depriving applicants of critical information necessary to negotiate fair compensation. While the merits of the wage disclosure are at the heart of the complaint, the current appellate battle is focused on the procedural "standing" of the plaintiffs—specifically, whether a missing salary range constitutes a "concrete injury" sufficient to keep the case in federal court under Article III of the U.S. Constitution.
The Jurisdictional Tug-of-War and Judicial Skepticism
The Wednesday hearing before the Ninth Circuit highlighted a growing frustration among the judiciary regarding what some observers describe as "jurisdictional shell games." Initially, Whole Foods had challenged the plaintiff’s standing, arguing that the mere absence of a salary range on a job posting did not cause a tangible harm or a "concrete injury-in-fact." Such an argument is a common defense tactic intended to have a case dismissed from federal court. However, after the case faced the prospect of being remanded to Washington state court—where standing requirements are often broader and more favorable to plaintiffs—Whole Foods appeared to shift its stance.
A Ninth Circuit judge pointedly asked Whole Foods’ counsel why the panel should permit the company to now argue in favor of federal jurisdiction after previously suggesting the plaintiffs lacked the standing to be there. The court’s inquiry touched upon the doctrine of judicial estoppel, which prevents a party from taking contradictory positions in different phases of a legal proceeding to gain an unfair advantage.
The shift in strategy reflects a high-stakes calculation. In federal court, the standard set by the Supreme Court in TransUnion LLC v. Ramirez requires a "physical, monetary, or intangible but concrete" harm. If a federal court finds no such harm, it must dismiss the case. However, if the case was originally removed from state court, a lack of federal standing usually results in a "remand" back to the state level. For large employers like Whole Foods, defending a class action in Washington state court—under a relatively new and robust transparency law—is often viewed as more risky than seeking a dismissal in the federal system.
Background: Washington’s Equal Pay and Opportunities Act
To understand the implications of the Ninth Circuit’s eventual ruling, it is essential to examine the legislative framework of the Washington Equal Pay and Opportunities Act. Effective January 1, 2023, Washington joined a small but growing number of states—including California, Colorado, and New York—in mandating salary transparency.
Under RCW 49.58.110, any employer with 15 or more employees must include in every job posting the wage scale or salary range and a general description of all benefits and other compensation. The law was designed to close the gender and racial pay gap by providing applicants with leverage during the hiring process.
The law provides for significant statutory damages. Violations can lead to a minimum of $5,000 in damages per affected applicant or actual damages, whichever is greater, plus costs and reasonable attorneys’ fees. For a company the size of Whole Foods, which processes thousands of applications annually in Washington, the potential class-wide liability is substantial. This financial exposure has led to a flurry of litigation across the state, with Whole Foods being one of several major retailers targeted by class action firms.
Chronology of the Litigation
The timeline of the case reflects the broader trend of "removal and remand" battles seen in employment law over the last three years:
- January 2023: Washington’s pay transparency requirements go into effect.
- Late 2023: The plaintiff files a class action complaint in a Washington Superior Court, alleging that Whole Foods’ job postings for various positions lacked the required salary ranges.
- Early 2024: Whole Foods removes the case to the U.S. District Court for the Western District of Washington, invoking the Class Action Fairness Act (CAFA).
- Mid-2024: A dispute arises over Article III standing. The district court evaluates whether the plaintiff’s "informational injury"—the lack of a salary range—is sufficiently concrete.
- Late 2024: The district court issues a ruling that prompts the current appeal to the Ninth Circuit. The central question becomes whether the case should stay in the federal system or be sent back to the state court where it originated.
- October 28, 2026: The Ninth Circuit panel hears oral arguments, confronting Whole Foods on its inconsistent positions regarding the court’s jurisdiction.
Supporting Data: The Rise of Pay Transparency Litigation
The Whole Foods case is not an isolated incident. Data from legal analytics firms show a 150% increase in pay transparency-related filings in the Pacific Northwest since the beginning of 2023. Retail and hospitality sectors have been the primary targets, accounting for approximately 40% of these lawsuits.
In Colorado, which implemented a similar law in 2021, early litigation patterns followed a comparable trajectory. However, Washington’s law is considered more aggressive because it allows for private rights of action with high statutory minimums. In California, by contrast, enforcement is largely handled by the Labor Commissioner’s Office, though private litigation is still a factor.
Legal experts note that the Ninth Circuit’s decision will serve as a bellwether for how federal courts handle "informational injuries" under state labor laws. If the court rules that missing wage information does not constitute a federal injury, it will effectively insulate federal courts from these class actions, pushing the battleground entirely into state courts.
Official Responses and Tactical Implications
While Whole Foods has not issued a formal public statement regarding the specific exchange in court, its legal filings emphasize a commitment to compliance while arguing that the plaintiffs have not suffered any actual economic loss. The company’s counsel argued during the hearing that the jurisdictional complexities are a byproduct of reconciling state-level statutory rights with federal constitutional limits.
Attorneys representing the plaintiff class argue that the "injury" is the loss of a statutory right to information, which directly impacts an applicant’s ability to evaluate a job’s value. "The law was created to prevent the ‘information asymmetry’ that favors employers," the plaintiffs’ counsel noted in a brief. "When a company withholds that information, the injury is immediate and specific to the job seeker’s economic decision-making."
The Ninth Circuit’s skepticism toward Whole Foods’ shifting position suggests the court is concerned about "forum shopping." If a defendant moves a case to federal court only to argue that the federal court lacks the power to hear it, it creates a procedural loop that can delay justice for years.
Broader Impact and Industry Implications
The outcome of this case will have profound implications for HR departments and corporate legal teams across the country. A ruling that favors federal standing would mean that these class actions can be litigated in a venue often seen as more favorable to corporate defendants, where summary judgment standards are rigorous. Conversely, a ruling that denies standing but mandates remand to state court could open the floodgates for high-stakes litigation in Washington’s state judiciary.
For the retail industry, the Whole Foods case serves as a cautionary tale. Companies are being urged to audit their automated job posting systems to ensure that every listing—including those on third-party sites like LinkedIn or Indeed—strictly adheres to state-specific disclosure requirements.
Furthermore, the case highlights the tension between the Supreme Court’s restrictive view of standing in TransUnion and the legislative intent of states like Washington to create new, enforceable consumer and worker rights. As more states adopt "right-to-know" laws regarding wages, the federal courts will continue to be a primary site of conflict over where these rights can actually be vindicated.
The Ninth Circuit is expected to issue its opinion in the coming months. Until then, the grocery industry and the legal community remain on high alert, as the decision will likely define the boundaries of wage transparency enforcement for the foreseeable future. The confrontation on Wednesday serves as a reminder that in the high-stakes world of class action defense, the "where" of a lawsuit is often just as important as the "what."
