EFTA Document EFTA01295633

NAME SEARCHED: Mort, Inc PWM BIS-RESEARCH performed due diligence research in accordance with the standards set by AML Compliance for your business. We completed thorough searches on your subject name(s) in the required databases and have attached the search results under the correct heading below. Significant negative media results may require escalation to senior business. Legal and Compliance management. Also. all accounts involving PEPs must be escalated Search: RIX: Result: z No I Iii O Not Regtoml Click here for results: I. RUC Results Reviewer Comments (as necessary): No RDC Alert • h it PCR ®No Hit O Not Required El Hit II. PCR Results No PCR Alert BIS III. Negative Media No Information Found O Yes No Not Required IV. Non-Negative Media No Information Found V. Other Language Media No Information Found MB Results? El Yes O No O Not Required VI. D&B Information Found (Please see attached) Smartlinx Results? El Yes O No El Not Required VII. Stnartlinx Information Found (Please see attached) Court Cases 23 Review by Legal May be Required O No Resins O Search not required VIII. Court Cases Information Found (Please see attached) Prcpaied by: Akshay Davera Date: 10/01/2015 Research Analyst Instructions: 1. Review and confirm that all results are returned for your client. 2. Please note that you are still required to perform any Martindale-Hubbell search (if applicable) on each search subject. We have attached the web link below for your convenience:Martindale-Hubbellhttp://www.martindale.com/xp/Nlariindale/home.xml 3. As needed, provide comment for any negative results. 4. If applicable, please obtain clearance from Compliance for all alerts. 5. Save any changes you make to this document and attach file to your KYC. Please note: Submission of a signed KYC is your confirmation that you have fully reviewed the research documents. For internal use only SONY GM_00056796 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) CONFIDENTIAL OB-SDNY-0019620 EFTA_00 167366 EFTA01295633 Page 2 OFAC RESULTS RDC: Not Alerts OBOI PCR: Mort, Inc BIS RESULTS: Negative Media: No Information Found Non-Negative Media: No Information Found Other Language Media: No Information Found Public Record: Mort, Inc City:St, Thomas Country: NArgin Islands, U.s. NCA customised Auto-Closed No-Hit 02/10/2015 1 OF 2 RECORD(S) Comprehensive Business Report Report Created:10.01-2015 6:17 PM EST I FOR INFORMATIONAL PURPOSES ONLY I Copyright@ 2015 LexisNexis. All rights reserved. Search Terms - company(Mort. Inc) radius(15) Executives - Current (0) Incorporation/SOS (1) Operations/Sites (2) Sales (0) Licenses (0) URLs (0) Real Property - Current (1) Real Property - Prior (0) MVRs - Current (0) MVRs • Prior (1) Watercraft • Current (0) Watercraft • Prior (0) Aircraft - Current (0) Aircraft - Prior (0) Bankruptcy Filings (0) Judgments & Liens Filings (0) UCC Filings (0) Executives - Prior (2) Registered Agents (1) Name Variations (1) Possible Employees (1) Person Associates (0) Business Associates (2) TINs (0) Possible Connected Parent Company (0) Industry Information (0) Business (4) View Al Sources (9) For internal use only SDNY_GM_00056797 CONFIDENTIAL - PURSUANT TO FED. R.WN(F IDENTIAL DB-SDNY-0019621 EFrA_00167367 EFTA01295634 Page 2 Business Summa Name Address MORT, INC. 820 W Spruce St Rawlins, WY 82301-5440 Carbon County (Most Reconi Listing) osbirzoi2 - 09292015 (E) (Business) LexID Established TIN 0001-0078-5323 2004 (11 Years in Business) At a Glance Real Property 1 UCC Debtor 0 Personal Property 0 Bankruptcy 0 Secured Assets 0 Judgments/Liens 0 Executives 0 Foreclosure/Notice of Default 0 Name Variations -1 name variations found NO. 1. NAME MORT. INC. TINs - 0 TINs found Business Profile Executives: Current - 0 executive(s) found lncor oration/SOS (1 active, 0 other) 1 NO. NAME FILING TYPE STATUS FILING DATE FILING NO. STATE 1. MORT, INC. CORPORATION- BUSINESS ACTIVE 03125/1999 1999- 000343534 WY Additional Details Business Type: CORPORATION-BUSINESS Business Status: ACTIVE Filing Type: FILING Expiration: PERPETUAL For Profit Unknown Foreign/Domestic: Domestic Origin: State of WY OperatingLocations - Showing 2 location(s) NO. ADDRESS METRO AREA PHONE 1. 502 W Spruce St Rawlins, WY 82301-5548 Carbon County CARBON COUNTY (Business) 2. 820 W Spruce St Rawlins, WY 82301-5440 Carbon County CARBON COUNTY (Most Recent Listng) 05&012012.091292015 8 (Business) Sales - 0 record(s) found For internal use only SDNY_GM_00056798 CONFIDENTIAL - PURSUANT TO FED. R.cON(F IDENTIAL DB-SDNY-00 19622 EFTA_00 167368 EFTA01295635 Page 3 Parent Company - 0 record(s) found Industry Information - no information found Licenses - 0 licenses found URLs - 0 URLs found Bankruptcy (0 active, 0 closed) Judgments/Liens (0 filings) UCC Filings (0 debtor, 0 creditor) Real Property (1 current, 0 prior NO. 1. 1 Current ADDRESS STATUS 820 W Spruce St Rawlins. WY 82301-5440 Carbon County Source: B Owner 1 Information MORT INC PO Box 357 Rawlins. WY 82301-0357 Carbon County PURCHASE PRICE SALE PRICE STATE WY Legal Information Parcel Number 21871733100400 Assessment Year: 2014 Recording Date: 02/29/2008 Document Type: ASSESSOR Assessed Value: $18,654.00 Market Land Value: 310,212.00 Total Market Value: 5196.364.00 Type of Address: COMMERCIAL OFFICE (GENERAL) Personal Property (0 current, 1 prior) NO. TYPE STATUS YEAR/MAKE MODEL VIN 1. MVR Prior 2004 Lexus RX 330.4 Dr Wagon Sport Utility Vehicle Information VIN- Year 2004 Make. Lexus Model: RX 330 Style: 4 Dr Wagon Sport Utility Base Price: $37,000.00 For internal use only SDNY_GM_00056799 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SDNY-00 19623 EFTA_00 167369 EFTA01295636 Page 4 Source Information Data Source: GOVERNMENTAL Registrant 1 MORT. INC. 502 W Spruce St Rawlins, WY 82301-5548 Carbon County Jurisdiction: WY License Plate: Original Registration Date. 05/1912008 Registration Date. 03/24/2010 Registration Expiration Date: 03/31/2011 Associates Executives: Prior - 2 prior executive(sl found NO. NAME TITLE 1. Mortensen, Tammy DIRECTOR (03/25/1999) 2. Mortensen, Troy L DIRECTOR (03/25/1999) Registered Agents -1 registered agent(s) found NO. NAME ADDRESS STATE DATE S 1. Mortensen, Tammy K Wyoming 03/25/1999 - 09/102015 Possible Employees - 0 current, 1 prior employees found NO. NAME ADDRESS STATUS DATE S 1. Mortensen. Tammy N/A Prior 03/25/1999 Person Associates - 0 other person associates found Possible Connected Business - 4 businesses found NO. NAME ADDRESS 1. MORT INC PO Box 357 Rawlins. WY 82301-0357 Carbon County 2. MORT INC 2222 Dunblane Dr Rawlins, WY 82301-4236 Carbon County 3. MORT INC 603 W Spruce St Rawlins, WY 82301-5435 Carbon County 4. MORT. INC. 1325 High St Rawlins, WY 82301-4642 Carbon County For internal use only SDNY_GM_00056800 CONFIDENTIAL - PURSUANT TO FED. R.Q11;)N(F IDENTIAL DB-SDNY-00 19624 EFTA_00 167370 EFTA01295637 Page 5 Business Associates - 2 business associates found NO. NAME ADDRESS ROLE 1. MORT INC PO Box 357 Rawlins, WY 82301-0357 Carbon County Real Property 2. MORT INCORPORATED 2222 Dunblane Dr Rawlins, WY 82301.4236 Carbon County Real Property Sources All Sources 9 Source Documents Real Property 4 Source Documents Personal Property 2 Source Documents Corporate Filings 1 Source Documents Other Directories 1 Source Documents Experian Credit Risk DB 1 Source Documents Key: A High Risk Indicator. These symbols may prompt you to investigate further. / Moderate Risk Indicator. These symbols may prompt you to investigate further. r- General Information Indicator. These symbols inform you that additional information is provided. to0 The most recent telephone listing as reported by Electronic Directory Assistance. Wireless Phone Indicator. These symbols indicate a cell phone number. ® Residential Phone Indicator. These symbols indicate a residential phone number. Business Phone Indicator. These symbols indicate a business phone number. ® Shared Phone Indicator. These symbols indicate the phone number may be shared between wireless and landline service. (E.) FAX Indicator. These symbols indicate a FAX number. Government Phone Indicator. These symbols indicate a government phone number. Important: The Public Records and commercially available data sources used on reports have errors. Data is sometimes entered poorly. processed imamate/ and is generally not free from doled. This system should not be relied upon as definitively accurate. Before retying on any dada this system supplies, it should be independently verified. For Secretary of State documents* the foloviing data is for information purposes only and is not an official record. Certified copies may be obtained horn that VuRridual slates Department of State. Your DPPA Permissible Use is: Debt Recovery/Fraud Your GLBA Permissible Use Is: Legal Compliance Copyright O 2015 Lexistrexis, a derision of Reed Elsevier Inc. AI Rights Reserved. 2 OF 2 RECORD(S) Comprehensive Business Report Report Created:10-01-2015 6.17 PM EST I FOR INFORMATIONAL PURPOSES ONLY I Copyright O 2015 LexisNexis, All rights reserved. Search Terms - company(Mort. Inc) radius(15) Executives • Current (0) Incorporation/SOS (0) Operations/Sites (1) Sales (0) Licenses (0) URLs (0) Real Property - Current (0) Real Properly • Prior (0) MVRs - Current (0) MVRs - Prior (0) Watercraft - Current (0) Watercraft - Prior (0) Aircraft - Current (0) Aircraft - Prior (0) Bankruptcy Filings (0) Judgments & Liens Filings (0) UCC Filings (0) Executives - Prior (0) Registered Agents (1) Name Variations (1) Possible Employees (1) Person Associates (0) Business Associates (0) TINs (0) For internal use only SDNY_GM_00056801 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 19625 EFTA_00167371 EFTA01295638 Page 6 Possible Connected Business (4) View AII Sources (0) Business Summa Name Address Phone MORT INC / (Company is inactive) 603 W Spruce St Rawlins, WY 82301-5435 Carbon County LexID Established TIN 0001-0078-5723 2011 (4 Years in Business) Parent Company (0) Industry Information (0) At a Glance Real Property 0 UCC Debtor 0 Personal Property 0 Bankruptcy 0 Secured Assets 0 Judgmentstiens 0 Executives 0 Foreclosure/Notice of Default 0 Name Variations -1 name variations found NO. 1. MORT INC NAME TINS - 0 TINS found Business Profile Executives: Current - 0 executive(s) found Incorporation/SOS (0 active, 0 other) 0 eratin Locations - Showing 1 location s NO. ADDRESS METRO AREA PHONE 1. 603 W Spruce St Rawlins. WY 82301-5435 Carbon County CARBON COUNTY Sales 0 record(s) found Parent Company - 0 record(s) found Industry Information - no information found Licenses - 0 licenses found URLs - 0 URLs found Bankruptcy (0 active, 0 closed) Judgments/Liens (0 filings) UCC Filings (0 debtor, 0 creditor) Real Property (0 current, 0 prior) Personal Property (0 current, 0 prior) For internal use only CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL SDNY_GM_00056802 DB-SDNY-00 19626 EFTA_00 167372 EFTA01295639 Page 7 Associates Executives: Prior - 0 prior executive(s) found Registered Agents -1 registered agent(s) found NO. 1. NAME ADDRESS STATE DATE(S) Possible Employees - 0 current, 1 prior employees found NO. NAME ADDRESS STATUS DATE(S) 1. Mortensen, Tammy K N/A Prior 03/25/1999 Person Associates - 0 other person associates found Possible Connected Business - 4 businesses found NO. NAME ADDRESS 1. MORT INC PO Box 357 Rawlins, WY 82301-0357 Carbon County 2. MORT INC 2222 Dunblane Dr Rawlins. WY 82301-4236 Carbon County 3. MORT, INC. 820 W Spruce St Rawlins. WY 82301-5440 Carbon County 4. MORT. INC. 1325 High St Rawlins, WY 82301-4642 Carbon County Business Associates - 0 business associates found Sources Key: A High Risk Indicator. These symbols may prompt you to investigate further. / Moderate Risk Indicator. These symbols may prompt you to investigate further. 116- General Information Indicator. These symbols inform you that additional information is provided. 40 The most recent telephone listing as reported by Electronic Directory Assistance. 4it Wireless Phone Indicator. These symbols indicate a cell phone number. Residential Phone Indicator. These symbols indicate a residential phone number. Business Phone Indicator. These symbols indicate a business phone number Shared Phone Indicator. These symbols indicate the phone number may be shared between wireless and landline service. FAX Indicator. These symbols indicate a FAX number. Government Phone Indicator. These symbols indicate a govemment phone number. Important: The Public Records end oornmercially washable dela sources used on reports have errors. Data is sometimes entered phony, processed incorrectly and is generally not free from detect This system should 001 be relied upon as definitively accurate. Before relying on any data this system supplies. it should be independently verified. For Secretary of Slate documents, the focloyring data is for information purposes only and is not an official record. Declined copies may be obtained from that autnidual stales Department of Stale. For internal use only SDNY_GM_00056803 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-0019627 EFTA_00 167373 EFTA01295640 Page 8 Your DPPA Permissible Use is. Debt Recovery/Fraud Your MBA Permissible Use is: Legal Compliance Copyright 0 2015 LexisNexis. a division or Reed Ebevier Inc Al Rights Reserved. D&B: Copyright 2015 Dun & Bradstreet, Inc. July 8, 2015 Dun's Decision Makers View the DMI Record Glass City Mort Inc 2558 Parkway Plz Maumee, OH 43537-3772 United States BUSINESS ADDRESS: 2558 Parkway Plz, Maumee, OH 43537-3772, United States MSA: Toledo, OH - 8400 COUNTY: Lucas COMPANY IDENTIFIERS DUNS NUMBER: EXECUTIVES Principal: Donald McCorkle, Ill, Prin Donald McCorkle, III, Prin DESCRIPTION INDUSTRY TYPE: Retail Trade; Ret Paint/Glass/Wallpaper Copyright 2015 Dun & Bradstreet, Inc. For internal use only SDNY_GM_00056804 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 19628 EFTA_00 167374 EFTA01295641 Page 9 Dun's Market Identifiers Plus, 07/05/15, Mort's Inc July 5, 2015 Dun's Decision Makers View the DMI Record Mort's Inc P O Box 400 Latimer, IA 50452 United States BUSINESS ADDRESS: 1451a Gull Ave, Latimer, IA 50452, United States COUNTY: Franklin COMPANY IDENTIFIERS DUNS NUMBER: 02-207-9289 EXECUTIVES President: Seth Morton, President Seth Morton, President Treasurer: Administrative Secretary: Bookkeeper: Tracy Morton, Treasurer Tracy Morton, Treasurer Priscilla M Eddy, Secretary Priscilla M Eddy, Secretary Norma Allen, Bookeeper Norma Allen, Bookeeper DESCRIPTION For internal use only SDNY_GM_00056805 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 19629 EFTA_00 167375 EFTA01295642 Page 10 Dun's Market Identifiers Plus, 07/05/15, Mort's Inc INDUSTRY TYPE: Construction; Water Pump Installation Plumbing Contractor Sewer Construction & Whol & Installation Water Treatment Equipment Copyright 2015 Dun & Bradstreet, Inc. June 28, 2015 Dun's Decision Makers View the DMI Record Mort's Inc 505 Industrial Park Rd Iowa Falls, IA 50126-9500 United States BUSINESS ADDRESS: 505 Industrial Park Rd, Iowa Falls, IA 50126-9500, United States COUNTY: Hardin ***** * * " * COMPANY IDENTIFIERS DUNS NUMBER: EXECUTIVES Manager: Deaune Sudpelgte, Manager Deaune Sudpelgte, Manager DESCRIPTION INDUSTRY TYPE: Construction; Plumbing & Heating Contractor Copyright 2015 Dun & Bradstreet, Inc. For internal use only SDNY_GM_00056806 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 19630 EFTA_00 167376 EFTA01295643 Page 11 dun&bracstreet Federal Employer Identification Numbers June 7, 2015 MORTS INC 505 INDUSTRIAL PARK RD IOWA FALLS, IA 50126 UNITED STATES COMMUNICATIONS TELEPHONE: COMPANY IDENTIFIERS FEIN: SOURCE REFERENCE NAME: MORT'S INC HEADQUARTER/PARENT DUNS NUMBER: EXECUTIVES TOP CONTACT: Manager Deaune Sudpelgte MARKET AND INDUSTRY SIC CODES: CROSS REFERENCE: PRIMARY BUSINESS NAME: Mort's Inc ADDITIONAL BUSINESS NAME: Mort's Plumbing & Heating LOAD-DATE: September 28, 2015 LEGAL RESULTS: Court Cases: QUINTON BROWN; JASON GUY; ALVIN SIMMONS; SHELDON SINGLETARY; GERALD WHITE; RAMON ROANE; JACOB RAVENELL, individually and on behalf of the class they seek to represent, Plaintiffs - Appellants, v. NUCOR CORPORATION; NUCOR STEEL-BERKELEY, Defendants - Appellees. For internal use only SDNY_GM_00056807 CONFIDENTIAL - PURSUANT TO FED. R.Q;;NE IDENTIAL DB-SDNY-0019631 EFTA_00 167377 EFTA01295644 Page 12 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793: 99 Empl. Prac. Dec. (CCH) P45,306 No. 13-1779 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 785 F.3d 895; 2015 U.S. App. LEXIS 7739; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306; 91 Fed. R. Serv. 3d (Callaghan) 1169 September 17, 2014, Argued May 11, 2015, Decided PRIOR HISTORY: r ij Appeal from the United States District Court for the District of South Carolina, at Charleston. (2:04-cv-22005-CWH). C. Weston Houck, Senior District Judge. Brown v. Nucor Corp., 576 F.3d 149, 2009 U.S. App. LEXIS 17643 (4th Cir. S.C., 2009) DISPOSITION: VACATED IN PART, AND REMANDED WITH INSTRUCTIONS. CASE SUMMARY: OVERVIEW: HOLDINGS: [1]-Certification of a class of black steel workers who alleged racial discrimination at a South Carolina plant was warranted for allegations of discriminatory job promotion practices because statistical and substantial anecdotal evidence suggested discrimination in promotion decisions in multiple departments for purposes of commonality under Fed. R. Civ. P. 23(a)(2): [2]-Decertification of the class was an abuse of discretion because the workers' direct evidence sufficiently showed common claims of disparate treatment and disparate impact under 42 U.S.C.S. § 2000e- 2(k). and additionally. the statistical disparity actually exceeded two standard deviations: [3]-Reconsideration of the predominance requirement under Rule 23(b)(3) was error, as it was not part of the remand order and there were no new facts or legal precedent that justified revisiting that determination. OUTCOME: Judgment vacated in part; matter remanded with instructions to recertify promotions class. CORE TERMS: promotion, statistical, commonality, plant, predominance, anecdotal, supervisor, disparity, hostile, class certification, certification, work environment, statistical evidence, bidding, statistics, class action, certify, discriminatory, plant-wide, beam mill, black workers, class members, disparate treatment, opening, bidder, pool, standard deviations, manager, disparate impact. general manager LexisNexis(R) Headnotes For internal use only SDNY_GM_00056808 CONFIDENTIAL - PURSUANT TO FED. R.QCIANI(FIDENTIAL DB-SDNY-00 19632 EFTA_00 167378 EFTA01295645 Page 13 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, n; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 Civil Procedure > Class Actions > Certification Civil Procedure > Class Actions > Appellate Review Civil Procedure > Appeals > Remands Civil Procedure > Appeals > Standards of Review > De Novo Review Civil Procedure > Appeals > Standards of Review > Abuse of Discretion [HN1]Appellate courts typically review a district court's certification order for abuse of discretion. The appellate courts review de novo, however, whether a district court contravenes a prior express or implicit mandate issued by the appellate court. Civil Procedure > Appeals > Remands Civil Procedure > Class Actions > Decertification [HN2]As to the question of whether a district court's decertification order violated the appellate court's mandate, an "extraordinary" exception to the mandate rule exists when there is a showing that controlling legal authority has changed dramatically. Moreover, Fed. R. Civ. P. 23(c)(1)(C) provides a district court with broad discretion to alter or amend a prior class certification decision at any time before final judgment. Civil Procedure > Class Actions > Prerequisites > Commonality [HN3]At the very least, Wal-Mart recalibrated and sharpened the lens through which a court examines class certification decisions under Fed R. Civ. P. 23(a)(2), an impact plainly manifested by the number of certifications overturned in its wake. Civil Procedure > Class Actions > Certification Civil Procedure > Class Actions > Appellate Review Civil Procedure > Appeals > Appellate Jurisdiction > Lower Court Jurisdiction [HN4] Class certification orders are not final judgments impervious to lower court review and revision. Civil Procedure > Appeals > Standards of Review > Abuse of Discretion Civil Procedure > Class Actions > Certification Civil Procedure > Class Actions > Appellate Review [HN5]The law gives broad leeway to district courts in making class certification decisions, and their judgments are to be reviewed by the court of appeals only for abuse of discretion. A district court abuses its discretion when it materially misapplies the requirements of Fed. R. Civ. P. 23. A district court per se abuses its discretion when it makes an error of law or clearly errs in its factual findings. Civil Procedure > Class Actions > Prerequisites > Commonality [HN6] Fed. R. Civ. P. 23(a)(2) establishes that a class action may be maintained only if "there are questions of law or fact common to the class." Civil Procedure > Class Actions > Prerequisites > General Overview Evidence > Procedural Considerations > Burdens of Proof > Allocation [HN7]Wal-Mart reaffirmed existing precedent that courts must rigorously examine whether plaintiffs have met the prerequisites of Fed. R. Civ. P. 23(a) at the certification stage, an For internal use only SDNY_GM_00056809 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SONY-0019633 EFTA_00 167379 EFTA01295646 Page 14 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 analysis that will often overlap with the merits of a claim. But as the Court later clarified, Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Instead, the merits of a claim may be considered only when relevant to determining whether the Rule 23 prerequisites for class certification are satisfied. Evidence > Procedural Considerations > Weight & Sufficiency Civil Procedure> Class Actions > Prerequisites > General Overview [HN8] While an evaluation of the merits to determine the strength of the plaintiffs' case is not part of a Fed. R. Civ. P. 23 analysis, the factors spelled out in Rule 23 must be addressed through findings, even if they overlap with issues on the merits. Civil Procedure> Class Actions > Prerequisites > General Overview Evidence > Procedural Considerations > Weight & Sufficiency [HN9] Fed. R. Civ. P. 23 is not a mere pleading standard. Far from it. A court should engage the merits of a claim only to the extent necessary to verify that Rule 23 has been satisfied. Evidence > Procedural Considerations > Weight & Sufficiency Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview [HN10] Of course, it belabors the obvious to observe that the alternative benchmark is a less precise measure than actual bidding data to prove discrimination. It is also clear, however, that plaintiffs may rely on other reliable data sources and estimates when a company has destroyed or discarded the primary evidence in a discrimination case. More than two decades of judicial precedent affirm as much. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Statistical Evidence Civil Procedure> Class Actions > Prerequisites > Commonality [HN11] The critical question is not whether the data used is perfect for purposes of establishing commonality for class certification in a discrimination matter, but instead whether it is reliable and probative of discrimination. To that end, a court must examine whether any statistical assumptions made in the analysis are reasonable. Civil Procedure> Class Actions > Prerequisites > Commonality Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Statistical Evidence [HN12] An incremental reduction in probative value - which is a natural consequence of the use of proxy data - does not itself render a statistical study unreliable in establishing a question of discrimination common to the class. Indeed, to conclude otherwise would undermine prior precedent, rendering plaintiffs unable to bring a statistics-based employment discrimination claim after a company has intentionally or inadvertently destroyed actual applicant data. For internal use only SDNY_GM_00056810 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 19634 EFTA_00 167380 EFTA01295647 Page 15 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, n; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Statistical Evidence Civil Procedure > Class Actions > Prerequisites > Commonality [HN13] What matters for determining commonality under class certification in a discrimination matter is not whether an analysis makes assumptions based on imperfect data, but whether those assumptions are reasonable. Indeed, statistics are not certainties but are merely a body of methods for making wise decisions in the face of uncertainty. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Statistical Evidence [HN14] Statistical significance is not always synonymous with legal significance, such as in the discrimination context. Indeed, the usefulness of statistical evidence often depends on all of the surrounding facts and circumstances. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof Civil Procedure > Class Actions > Prerequisites > Commonality [HN15] Wal-Mart instructs that plaintiffs must present a common contention capable of being proven or disproven in "one stroke" to satisfy Fed., R. Civ. P. 23(a)(2)'s commonality requirement. Thus, a class-wide proceeding must be able to generate common answers that drive the litigation. For a claim based on discrimination in employment decisions, without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members' claims for relief will produce a common answer to the crucial question why was I disfavored. Semantic dexterity in crafting a common contention is not enough. Commonality instead requires the plaintiff to demonstrate that the class members "have suffered the same injury." As such, a court must examine whether differences between class members impede the discovery of common answers. Civil Procedure > Class Actions > Prerequisites > Commonality Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Statistical Evidence Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof [HN16] In the absence of a common job evaluation procedure, Wal-Mart held that statistical proof of employment discrimination at the regional and national level, coupled with limited anecdotal evidence from some states, is insufficient to show that the company maintained a "general policy of discrimination" present in each store where class members worked for purposes of commonality for class certification. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview Civil Procedure > Class Actions > Prerequisites > Commonality [HN17] A more centralized. circumscribed environment generally increases the uniformity of shared injuries, the consistency with which managerial discretion is exercised, and the For internal use only SDNY_GM_00056811 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SONY-0019635 EFTA_00 167381 EFTA01295648 Page 16 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 likelihood that one managers promotions decisions will impact employees in other departments for purposes of commonality for class certification. Civil Procedure > Class Actions > Prerequisites > Commonality Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview [HN18] Nothing in the Supreme Courts opinion suggests that single, localized operations must be analytically dissected into component departments for purposes of commonality for class certification in a discrimination context. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview Labor & Employment Law > Discrimination > Racial Discrimination > Proof > General Overview [HN19] It is difficult to fathom how widespread racial animus that consistently emphasized the inferiority of black workers bears no relationship to decisions whether or not to promote an employee of that race. Courts are not limited to the record in making such elementary judgments. Justice is not blind to history, and courts need not avert their eyes from the broader circumstances surrounding employment decisions, and the inferences that naturally follow. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview [HN20] Companies may investigate allegations of discrimination and take statements from employees. But when it comes to assessing the probative value of those statements - when weighed against the numerous declarations of employees who took the often grave risk of accusing an employer of a workplace violation - courts should proceed with eyes open to the imbalance of power and competing interests. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof [HN21] A plaintiff need not offer evidence that each person for whom it will ultimately seek relief was a victim of the employers discriminatory policy. Instead, a bifurcated class action proceeding allows for a "liability" stage to first determine whether an employer engaged in a pattern or practice of discriminatory conduct. Upon a finding of liability, a second damages stage allows for the consideration of which individuals were specifically harmed by the policy. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Statistical Evidence [HN22] For a liability determination in a disparate treatment claim, such a claim requires proof of a "systemwide pattern or practice" of discrimination such that the discrimination is For internal use only SDNY_GM_00056812 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SONY-00 19636 EFTA 00167382 EFTA01295649 Page 17 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 'the regular rather than the unusual practice." The required discriminatory intent may be inferred upon such a showing. Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof Labor & Employment Law > Discrimination > Disparate Impact > Proof > General Overview Labor & Employment Law > Discrimination > Racial Discrimination > Proof > Statistical Evidence [H N23] Unlike a disparate impact claim, a showing of disparate treatment does not require the identification of a specific employment policy responsible for the discrimination. A pattern of discrimination, revealed through statistics and anecdotal evidence, can alone support a disparate treatment claim, even where the pattern is the result of discretionary decision-making. To hold otherwise would dramatically undermine Title VII's prophylactic powers. A central purpose of Title VII is to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Labor & Employment Law > Discrimination > Disparate Impact > Proof > Burdens of Proof Labor & Employment Law > Discrimination > Disparate Impact > Proof > Statistical Evidence Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview [H N24] Statistics and anecdotes suggesting a pattern of discrimination are not enough alone to sustain a disparate impact claim. Disparate impact liability requires the identification of a specific employment practice that caused racially disparate results. 42 U.S.C.S. § 2000e-2(k). Unlike disparate treatment, the disparate impact theory does not require proof of improper intent to sustain a Title VII violation. Instead, liability is premised on facially neutral policies. Labor & Employment Law > Discrimination > Disparate Impact > Proof > Burdens of Proof [HN25] Under Wal-Mart, a mere showing that a policy of discretion has produced an overall disparity does not suffice for purposes of disparate impact. Instead, plaintiffs who allege such a policy of discretion must demonstrate that a "common mode of exercising discretion" actually existed throughout a company. Wal-Mart recognizes that in certain cases, giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory because an employees undisciplined system of subjective decisionmaking can have precisely the same effects as a system pervaded by impermissible intentional discrimination. For a nationwide class, Wal-Mart found that proving a consistent exercise of discretion will be difficult, if not impossible in some circumstances. For internal use only SDNY_GM_00056813 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 19637 EFTA_00 167383 EFTA01295650 Page 18 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 Labor & Employment Law > Discrimination > Disparate Impact > Proof > Burdens of Proof Labor & Employment Law > Discrimination > Racial Discrimination > Proof > Burdens of Proof > Employee Burdens [HN26] For a localized, circumscribed class of workers at a single facility, a policy of subjective, discretionary decision-making can easily form the basis of Title VII liability under a disparate impact theory, particularly when paired with a clear showing of pervasive racial hostility. In such cases, the underlying animus may help establish a consistently discriminatory exercise of discretion. Several ways that such a disparate impact claim may satisfy Fed. R. Civ. P. 23 after Wal-Mart, include: (1) when the exercise of discretion is "tied to a specific employment practice" that "affected the class in a uniform manner"; (2) when there is "also an allegation of a company-wide policy of discrimination" that affected employment decisions; and (3) "when high-level personnel exercise" the discretion at issue. A specific employment practice or policy can comprise affirmative acts or inaction. Civil Procedure> Class Actions > Prerequisites > Predominance Civil Procedure> Class Actions > Prerequisites > Commonality [HN27] In a class action brought under Fed. R. Civ. P. 23(b)(3), the "commonality" requirement of Rule 23(a)(2) is subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirement that questions common to the class predominate over other questions. But as Wal-Mart made clear, the Rule 23(a) commonality requirement and the Rule 23(b)(3) predominance requirement remain separate inquiries. Civil Procedure > Appeals > Briefs Civil Procedure > Appeals > Reviewability > Preservation for Review [HN28] The doctrine of waiver derives from the Federal Rules of Appellate Procedure, which require that the argument section of an appellant's opening brief contain the appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies. Fed. R. App. P. 28(a)(8)(A). Failure of a party in its opening brief to challenge an alternate ground for a district court's ruling waives that challenge. Civil Procedure > Appeals > Reviewability > Preservation for Review Civil Procedure > Appeals > Briefs [HN29] Where an argument advanced in an appellant's opening brief applies to and essentially subsumes an alternative basis for affirmance not separately argued therein, the appellant does not waive that alternative basis for affirmance. Civil Procedure > Appeals > Reviewability > Preservation for Review [HN30] The purpose of the waiver doctrine is to avoid unfairness to an appellee and minimize the risk of an improvident or ill-advised opinion being issued on an unbriefed issue. Even when an argument has been waived, an appellate court may nonetheless consider it if a "miscarriage of justice would otherwise result." Civil Procedure > Appeals > Remands For internal use only CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL SDNY_GM_00056814 DB-SONY-0019638 EFTA_00 167384 EFTA01295651 Page 19 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 [HN31] A district court must implement both the letter and spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces. The mandate rule forecloses relitigation of issues expressly or impliedly decided by the appellate court. Civil Procedure > Appeals > Remands Evidence > Procedural Considerations > Burdens of Proof > Allocation Governments > Courts > Judicial Precedents [HN32] The "extraordinary" exception to the mandate rule is when there is a showing that controlling legal authority has changed dramatically. Civil Procedure > Class Actions > Certification Civil Procedure > Class Actions > Judicial Discretion [HN33] Fed. R. Civ. P. 23 provides wide discretion to district courts, in part, to promote the systemic class action virtues of efficiency and flexibility. The realization of such benefits, however, requires that a district court exercise its judgment in a reasoned and expeditious manner. COUNSEL: ARGUED: Robert L. Wiggins, Jr., WIGGINS, CHILDS, QUINN & PANTAZIS LLC, Birmingham, Alabama, for Appellants. Lisa Schiavo Blatt, ARNOLD & PORTER LLP, Washington, D.C., for Appellees. ON BRIEF: Armand Derfner, D. Peters Wilborn, Jr., DERFNER, ALTMAN & WILBORN. Charleston, South Carolina; Ann K. Wiggins, WIGGINS, CHILDS, QUINN & PANTAZIS LLC, Birmingham, Alabama, for Appellants. Cary A. Farris, John K. Linker, J. Shannon Gatlin, ALANIZ SCHRAEDER LINKER FARRIS MAYES, LLP, Houston, Texas; Dirk C. Phillips, Sarah M. Harris, ARNOLD & PORTER LLP, Washington, D.C.; J. Tracy Walker, IV, Robert L. Hodges, Matthew A. Fitzgerald, MCGUIREWOODS, LLP, Richmond, Virginia, for Appellees. JUDGES: Before GREGORY, AGEE, and KEENAN, Circuit Judges. Judge Gregory wrote the opinion, in which Judge Keenan joined. Judge Agee wrote the dissenting opinion. OPINION BY: GREGORY OPINION ["898] GREGORY, Circuit Judge: This case concerns the certification of a class of black steel workers who allege endemic racial discrimination at a South Carolina plant owned ["2] by Nucor Corporation and Nucor Steel Berkeley (collectively, "Nucor"). Plaintiffs-appellants ("the workers") accuse Nucor of both discriminatory job promotion practices and a racially hostile work environment under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The district court originally denied class certification for both claims, and this Court reversed. See Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009) ("Brown I"). For internal use only SDNY_GM_00056815 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-00 19639 EFTA_00 167385 EFTA01295652 Page 20 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 The district court has revisited certification and decertified the promotions class in light of the Supreme Court's opinion in Wal-Mart Stores, Inc. v. Dukes, U.S. , 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011).' We thus again confront the question of whether the workers' have presented a common question of employment discrimination through evidence of racism in the workplace. Despite Wal-Mart's reshaping of the class action landscape, we hold that the district court has for a second time erred in refusing to certify the workers' class, where (1) statistics indicate that promotions at Nucor depended in part on whether an individual was black or white; (2) substantial anecdotal evidence suggests discrimination in specific promotions decisions in multiple plant departments; and (3) there is also significant evidence that those promotions decisions were made in the context of a racially hostile [**3] work environment. 1 The district court refused to decertify the wotters hostile work environment claim. We have previously deried as untimely Nucor's petition for interlocutory review of that decision. Nucor Corp. v. Brown. 760 F.3d 341.342 (4th Cir. 2014). Against that backdrop, the district court fundamentally misapprehended the reach of Wal- Mart and its application to the workers' promotions class. We thus vacate the district courts decision in part and remand for re-certification of the class. I. The Nucor plant encompasses six production departments that work together to melt, form, finish, and ship steel products to customers. See Brown I, 576 F.3d at 151. At the start of this litigation, 611 employees worked at the plant. Seventy-one (11.62%) were black? There was, however, at most one black supervisor in the production departments until after the Equal Employment Opportunity Commission ("EEOC") initiated charges that preceded the putative class action. 2 By comparison. more than 38% of the available local labor market is black. according to Census data provided by the workers' experts. The workers' promotions claim rests on alternative theories of liability under Title VII, which prohibits employment discrimination because of an individual's "race, color, religion, rig sex, or national origin." 42 U.S.C. § 2000e-2. The promotions claim first alleges a pattern or practice of racially disparate treatment in promotions decisions. See Teamsters v. United States, 431 U.S. 324, 336, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). Second, it charges that Nucor's facially neutral promotions policies and procedures had a racially disparate impact. See Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971); Wal-Mart, 131 S. Ct. at 2554. Both theories are grounded in a statistical analysis of racial disparities in job pro p899] motions at the plant combined with anecdotal evidence of discrimination. The workers' statistical evidence spans the four-year period preceding the litigation, between December 1999 and December 2003. Because Nucor destroyed and/or discarded the actual bidding data for the period before 2001, the workers' experts established an alternative benchmark using 'change-of-status' forms filed by the company whenever a promotion took place at For internal use only SDNY_GM_00056816 CONFIDENTIAL - PURSUANT TO FED. R.QCIANI(E IDENTIAL DB-SONY-0019640 EFTA_00 167386 EFTA01295653 Page 21 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 the plant. The experts extrapolated comparative statistics for that period using an assumption that the racial composition of the bidding pool for those jobs was the same as for the post-2001 jobs analyzed (when Nucor retained actual bidding records). The workers also presented abundant direct and circumstantial anecdotal evidence of discrimination in promotions, including: Anecdotal evidence provided rsi by the seven named plaintiffs and nine other putative class members. claiming discrimination in specific promotions decisions in the Nucor production departments; ' A description of complaints, contained in affidavits and depositions. made to plant General Manager Ladd Hall, who the workers allege failed to meaningfully respond; ' Descriptions of retaliation against those who complained to management, ' A written copy of Nucor's promotions policy and testimony that the policy was largely ignored in favor of giving unbridled discretion to supervisors; and • Testimony by a white supervisor that his department manager told him that "I don't think well ever have a black supervisor while I'm here." The facts undergirding the workers' separate hostile work environment claim, not directly at issue in this appeal, also bear on the promotions analysis. Those facts are disquieting in their volume, specificity, and consistency. Supervisors allegedly routinely referred to black workers as "nigger" and "DAN (dumb ass nigger)," with one supervisor reportedly stating "niggers aren't smart enough" to break production records, while others tolerated the routine use of epithets like "bologna lips," "yard [`6] ape," and "porch monkey." These epithets and others were broadcast over the plant-wide radio system - comprising a network of walkie-talkies used to communicate - along with monkey noises and the songs "Dixie" and "High Cotton." The workers' declarations and depositions further suggest that departmental supervisors and the plant's general manager consistently ignored racial harassment carried out by white workers, including the circulation of racist emails, the prominent display of a hangman's noose, the commonplace showing of the Confederate flag, and an episode when a white employee draped a white sheet over his head with eyes cut out in the form of a KKK hood. In 2007, the South Carolina district court denied the workers' motion for class certification for both the promotions and hostile work environment claims. In 2009, a divided panel of this Court reversed, concluding that the workers satisfied the threshold requirements of Federal Rule of Civil Procedure 23. We remanded the case 'with instructions to certify the appellants' class action." Brown I, 576 F.3d at 160. On February 17, 2011, the district court followed our instructions to certify the class, concluding that the workers satisfied Rule 23(b)(3)'s requirements that common questions predominate ["7] and that the class action was superior to other litigation devices ['9OO] to resolve the dispute. The district court later declined to stay the case pending a ruling in Wal-Mart, and it declined to reconsider its order certifying the class. The Supreme Court decided Wal-Mart in June 2011, decertifying an unprecedented nationwide class of approximately 1.5 million female employees spread over 3,400 stores. Wal-Mart held that the plaintiffs had failed to present a "common contention" of employment discrimination capable of "classwide resolution," as required by Rule 23(a)(2). Wal-Mart, 131 S.Ct. at 2551. Given the diffuse class and number of employment decisions For internal use only SDNY_GM_00056817 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-0019641 EFTA_00 167387 EFTA01295654 Page 22 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 at issue, the Supreme Court observed that "[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all class members' claims for relief will produce a common answer to the crucial question why was I disfavored." Id. at 2552 (emphasis in original). The plaintiffs, Wal-Mart concluded, failed to meet that standard when they premised liability on a company policy of decentralized subjective decision-making by local managers, combined with statistics showing gender-based employment disparities, limited anecdotal evidence, [**8] and expert testimony about a corporate culture that allowed for the transmission of bias. See id. at 2551, 2554-55. On September 11, 2012, the district court relied on Wal-Mart to decertify the workers' promotions class, invoking the courts authority under Rule 23(c)(1)(C) to amend a certification order at any time before final judgment. Wal-Mart, the court observed, clarified and heightened the commonality requirement of Rule 23(a)(2), requiring the workers to present "significant proof" that Nucor "operated under a general policy of discrimination" and that they suffered a common injury. J.A. 10934 (quoting Wal-Mart, 131 S.Ct. at 2553). Under that standard, the district court concluded that decertification of the promotions class was required because: (1) this Court's examination of the workers' statistical analysis in Brown I was not sufficiently "rigorous" to assess whether it raised questions common to the class under Rule 23(a)(2); (2) the workers' statistical and anecdotal evidence failed to establish such commonality because it did not provide "significant proof' that there existed both a "general policy of discrimination" and a "common injury"; (3) the delegation of subjective decision-making to Nucor supervisors was not, without more, a sufficiently uniform policy [".9] to present "common' issues appropriate for resolution on a class-wide basis"; and (4) even if the workers had identified a common question of law or fact satisfying Rule 23(a)(2), they failed to independently satisfy Rule 23(b)(3)'s requirements that common issues predominate and that the class action is a superior litigation device. Although the court decertified the class for the promotions claim, it refused to do so for the hostile work environment claim. The district court reaffirmed that the workers had demonstrated that the "landscape of the total work environment was hostile towards the class." J.A. 10964 (quoting Newsome v. Up-To-Date Laundry, Inc., 219 F.R.D. 356, 362 (D. Md. 2004)). Unlike the promotions claim, the court determined that the hostile environment allegations required no showing of a company-wide adherence to a common policy of discrimination. Still, the court found that "there is significant evidence that management ignored a wide range of harassment" and that the workers "met their burden to present significant proof of a general policy of discrimination." J.A. 10968. x901] On September 30, 2013, the workers appealed the district court's decertification of the promotions class. II. [FIN1] We typically review a district court's certification order for abuse of discretion. ["'10] Doe v. Chao, 306 F.3d 170, 183 (4th Cir. 2002), affd on other grounds, 540 U.S. 614, 124 S. Ct. 1204, 157 L. Ed. 2d 1122 (2004). We review de novo, however, whether a district court contravenes a prior express or implicit mandate issued by this Court. United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993); S. Atl. Ltd. P'ship of Tenn. v. Riese, 356 F.3d 576, 583 For internal use only SDNY_GM_00056818 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-0019642 EFTA_00 l67388 EFTA01295655 Page 23 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 (4th Cir. 2004) ('We review de novo . . . whether a post-mandate judgment of a district court contravenes the mandate rule, or whether the mandate has been 'scrupulously and fully carried out."' (quoting 2A Fed. Proc., L. Ed. § 3:1016)). Determining the appropriate standard of review thus requires a two step approach. First, we examine de novo whether the district court's decertification order violated our mandate in Brown Ito certify the workers' class. Second, if no such violation occurred, we must determine anew whether the district court abused its discretion in decertifying the promotions class. [HN2] As to the first question, an "extraordinary" exception to the mandate rule exists when there is "a show[ing] that controlling legal authority has changed dramatically." Bell, 5 F.3d at 67 (alteration in original). Moreover, Rule 23(c)(1)(C) provides a district court with broad discretion to alter or amend a prior class certification decision at any time before final judgment. Against that backdrop, the parties disagree about whether Wal-Mart provided sufficient justification for the district court to invoke rig its powers to revisit certification. Nucor maintains that Wal-Mart represents a "sea change" and that "class actions may proceed only in the most exceptional of cases." Resp'ts' Br. 15, 20. The workers suggest, however, that the Supreme Court instead largely reaffirmed existing precedent. Appellants' Br. 34. The truth has settled somewhere in between. See Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113-14 (4th Cir. 2013) (discussing limitations on the scope of Wal-Mart's holding); McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 487-88 (7th Cir. 2012), cert. denied, 133 S. Ct. 338, 184 L. Ed. 2d 157 (2012) (finding that Wal- Mart provided the basis for a renewed class certification motion); DL v. District of Columbia, 713 F.3d 120, 126, 404 U.S. App. D.C. 316 (D.C. Cir. 2013) (surveying how Wal-Mart has changed the class action landscape); Elizabeth Tippett, Robbing A Barren Vault: The Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices, 29 Hofstra Lab. & Emp. L.J. 433 (2012) (using an empirical analysis to predict Wal-Mart's likely impact on class certifications in the future). [HN3] At the very least, Wal-Mart recalibrated and sharpened the lens through which a court examines class certification decisions under Rule 23(a)(2), an impact plainly manifested by the number of certifications overturned in its wake. See, e.g., EQT Prod. Co. v. Adair, 764 F.3d 347 (4th Cir. 2014); Rodriguez v. Nat'l City Bank, 726 F.3d 372, 376 (3d Cir. 2013); M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 839, 841-44 (5th Cir. 2012); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 974 (9th Cir. 2011). In that light, we find that the district court's decision to reconsider the certification of the workers' class did not itself violate [".12] our mandate in Brown I. Per this Court's original remand instructions, the district court certified both the promotions ['9O2] and hostile work environment classes. Although the court had no discretion to then reconsider questions decided by this Court under then-existing facts and law, Wal-Mart provided a sufficiently significant change in the governing legal standard to permit a limited reexamination of whether the class satisfied the commonality requirement of Rule 23(a)(2).3 There are, however, instances described below when the district court unnecessarily revisited other discrete determinations made by this Court in Brown I, such as whether the Nucor plant should be treated analytically as a single entity, and whether For internal use only SDNY_GM_00056819 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0019643 EFTA_00 167389 EFTA01295656 Page 24 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl, Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 the class independently met the requirements of Rule 23(b)(3). The reconsideration of those determinations was not compelled by Wal-Mart and contravened our mandate in Brown I. 3 Furthermore, this Court's original mandate did not entirely divest the district court of its ongoing authority under Rule 23(c)(1)(C) to monitor the class and make changes when appropriate. See Prado-Steiman v. Bush, 221 F.3d 1266, 1273 (11th Or. 2000) ( (FIN4) 'Class certification orders . . . are not final judgments impervious to lower court review and revision"); Gene & Gene, L.LC. v. BioPay. L.L.C., 624 F.3d 698, 702-03 (5th Or. 2010). Because the district court could reexamine ("13] whether the workers met the requirement of commonality, we review those findings under the abuse of discretion standard that typically applies to certification orders. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 630, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997) ( [HN5]"The law gives broad leeway to district courts in making class certification decisions, and their judgments are to be reviewed by the court of appeals only for abuse of discretion."); Brown I, 576 F.3d at 152; Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 317 (4th Cir. 2006). A district court abuses its discretion when it materially misapplies the requirements of Rule 23. See Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 424 (4th Cir. 2003); Thorn, 445 F.3d at 317-18 ("A district court per se abuses its discretion when it makes an error of law or clearly errs in its factual findings."). The decisive question here is whether the district court materially misapplied Rule 23(a)(2) to the facts at hand in light of Wal-Mart.' 4 The dissent is skeptical that an appellate court can articulate a deferential standard of review while then finding reversible error in many of the factual and legal determinations made by a district court. See post at 84. Deference, however, clearly does not excuse us from conducting a detailed review of the record. Nor does it blind us from factual findings that were not supported and legal determinations that represent a fundamental misunderstanding of Wal•Mart's scope. Indeed. we recently I"14] applied similar scrutiny when overturning a district court's class certification order. See EOT Production. 764 F.3d at 357.58. Ill. [FIN6] Rule 23(a)(2) establishes that a class action may be maintained only if "there are questions of law or fact common to the class." The district court determined that Wal-Mart required decertification of the workers' promotions class insofar as the Supreme Court's interpretation of the rule (1) emphasized the analytical rigor required to evaluate a plaintiffs statistical evidence of commonality at the class certification stage, (2) placed the burden on plaintiffs to provide "significant proof' of a "general policy of discrimination" and "common injury," and (3) relatedly established that a company's policy of discretionary decision-making cannot sustain class certification without a showing that supervisors exercised their discretion in a common way. Each of these arguments is considered in turn. r9O3] A. (HN7] Wal-Mart reaffirmed existing precedent that courts must rigorously examine whether plaintiffs have met the prerequisites of Rule 23(a) at the certification stage, an analysis that will often overlap with the merits of a claim. Wal-Mart, 131 S. Ct. at 2551 For internal use only SDNY_GM_00056820 CONFIDENTIAL - PURSUANT TO FED. R.WN(F IDENTIAL DB-SDNY-00 19644 EFTA_00 167390 EFTA01295657 Page 25 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160-61, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982)). But as the Court later clarified, "Rule 23 grants courts no license to engage in free-ranging ["15] merits inquiries at the certification stage." Amgen Inc. v. Conn. Ret. Plans & Trust Funds, U.S. , 133 S. Ct. 1184, 1194-95, 185 L. Ed. 2d 308 (2013). Instead, the merits of a claim may be considered only when "relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Id. at 1195.5 5 The Wal-Mart majority confronted a split among courts regarding the depth of review necessary to sustain class certification under Rule 23. See Dukes v. Wal-Mart Stores. Inc.. 603 F.3d 571. 582-84 (9th Cir. 2010). rev'cl. 131 S. Ct. 2541. 180 L. Ed. 2d 374 (2011) (describing the split between circuits): Wal-Mart. 131 S. Ct. at 2551.52. On one end of the spectrum. a number of courts liberally construed the Supreme Court's language in Eisen v. Carlisle 8 Jacquelin, 417 U.S. 156.94 S. Ct. 2140. 40 L. Ed. 2d 732 0974), stating that "nothing in either the language or history of Rule 23 . gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." 417 U.S. at 177. On the other end, many courts, including this Circuit, heeded the Supreme Court's later call for a "rigorous analysis," as announced in Falcon. See 457 U.S. at 160. As Falcon held. "sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." Id. This Court's precedent and its approach in Brown I are consistent with Wal-Mart and Falcon. See Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004) (observing that [FINS] "while an evaluation of the merits to determine the strength of the plaintiffs' ("16] case is not part of a Rule 23 analysis, the factors spelled out in Rule 23 must be addressed through findings, even if they overlap with issues on the merits"). In Brown I, this Court expressly invoked Falcon's requirement of a rigorous analysis to determine compliance with Rule 23. 576 F.3d at 152. More important, of course, we actually conducted such an analysis, providing a detailed evaluation of the workers' anecdotal and statistical evidence to ensure that it presented a common question under Rule 23(a)(2). Id. at 153-56. Contrary to the dissent's assertion, we do not (and Brown I did not) suggest that [HN9] Rule 23 is a mere pleading standard. See post at 92. Far from it. It is true that Brown I cautioned that "an in--depth assessment of the merits of appellants' claim at this stage would be improper." Id. at 156. Such a statement, however, is consistent with the Supreme Court's dictate in Amgen that a court should engage the merits of a claim only to the extent necessary to verify that Rule 23 has been satisfied. Amgen, 133 S. Ct. at 1194-95. Brown I did precisely that. 1. Even evaluated in a still more painstaking manner, the workers' statistical evidence is methodologically sound while yielding results that satisfy Wal-Mart's heightened requirement of commonality discussed below. The parties' (**17] central dispute concerns the data used to analyze the period from December 1999 to January 2001, when Nucor failed to retain actual bidding records. For that period, the workers' expert developed an alternative benchmark that uses 27 relevant 'change-of-status' forms -- filled out when an employee ['9O4] changes positions at the plant -- to extrapolate promotions data because actual bidding information was unavailable. [I-IN10) Of course, it belabors the obvious to observe that the alternative benchmark is a less precise measure than actual bidding data. It is also clear, however, that plaintiffs may For internal use only SDNY_GM_00056821 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0019645 EFTA_00167391 EFTA01295658 Page 26 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, "; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 rely on other reliable data sources and estimates when a company has destroyed or discarded the primary evidence in a discrimination case. More than two decades of this Court's precedent affirm as much. See Lewis v. Bloomsburg Mills, Inc., 773 F.2d 561 (4th Cir. 1985); United States v. County of Fairfax, 629 F.2d 932, 940 (4th Cir. 1980); see generally Ramona L. Paetzold & Steven L. Willborn, The Statistics of Discrimination: Using Statistical Evidence in Discrimination Cases § 4.03 (2014) (describing the use of proxy data when actual data is unavailable or unreliable). In Lewis v. Bloomsburg Mills, Inc., this Court approved the use of Census data to establish a hypothetical available pool of black female job applicants after a company discarded ["18] employment applications for the relevant period. 773 F.2d at 568.e Plaintiffs then compared the "observed" annual rate of hires of black women with the "expected" rates based upon the proportional availability of black females in the labor pool. Id. We endorsed a similar use of proxy data in United States v. County of Fairfax, involving a county government that had destroyed three years of employment applications. 629 F.2d at 940. To analyze hiring during that time, plaintiffs assumed that the proportion of black and women applicants for those years was the same as in the first year for which the county retained records. Id. This Court approved, concluding the altemative benchmark was "the most salient proof of the County's labor market." Id.' 6 In Lewis. the company had 'improperly disposed" of the relevant employment applications. uNike the present case where there is no direct evidence of any impropriety. 773 F.2d at 568. That fact. however, does not affect our analysis of the workers' alternative benchmark. 7 The dessert cites Men v. Prince George's County, 737 rid 1299. 1306 (4th Cir. 1984), to support its argument that a court has wide discretion to reject alternative benchmarks. Post at 110-11. In Men, however, the defendants produced actual "applicant flow data" that contradicted the conclusions of r`19] the plaintiffs' statistics that were based on more general worktorceflabor market comparisons. Men. 737 F.2d at 1306. Here, like in Lewis, such actual applicant data is unavailable. See Lewis, 773 F.2d at 568 (noting that "applicant flow data" was not available). Furthermore, Nucor has not presented any alternative statistical study, or shown that data exists that may be more reliable than the alternative benchmark used by the workers. 2. (FIN11) The critical question is thus not whether the data used is perfect but instead whether it is reliable and probative of discrimination. To that end, a court must examine whether any statistical assumptions made in the analysis are reasonable. See Paetzold & Willborn, supra, § 4.16. The district court here identified two assumptions made by the workers' experts as problematic. The district court first questioned the assumption that the job changes described on the 27 forms represent promotions. See J.A. 10942. As an example of clear factual error committed by the court, it quoted at length from the dissent in Brown Ito argue that the forms may represent job changes unrelated to promotions. J.A. 10942 (quoting Brown I, 576 F.3d at 167-68 (Agee, J., concurring in part and dissenting in part)). The forms cited in Judge Agee's original dissent, however, are r20] plainly not among the 27 [' 905] relied upon by the workers' experts in constructing the alternative benchmark. Compare J.A. 10942 (the district court's decertification order quoting the dissent in Brown I), with J.A. 11005-11032 (copies of the actual change-of-status forms used in the expert analysis). For internal use only SDNY_GM_00056822 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 19646 EFTA_00 167392 EFTA01295659 Page 27 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 Worse still, the dissent in Brown I reached the question of whether the 27 forms represented promotions without the issue having been raised, much less analyzed, by the district court in its original order denying certification, see J.A. 8979, or by Nucor itself in its briefing before this Court in Brown l.° The dissent in Brown I thus both engaged in sua sponte fact-finding to divine which forms were used, and then got the facts wrong.° Using the flawed data, the dissent concluded in Brown I that "[ojn this record, it is difficult, if not impossible to discern whether the 2000 data based on the nebulous change-of-status forms proves those positions were promotion positions available for employee bidding and thus relevant to the formulation of statistical evidence for the appellants' claims." Brown I, 576 F.3d at 168 (Agee, J., concurring in part and dissenting in part). The district court expressly embraced that conclusion [""21] in decertifying the promotions class after Wal- Mart. J.A. 10942. 8 Nucor instead argued that the change of status forms failed to capture whether black employees bid on the positions, and whether the positions were open for bidding in the first place. Given the lack of controversy surrounding whether the 27 forms described promotions, the forms themselves were not introduced into the record until 2012. after the district embraced the fact- finding conducted by the dissent in Brown I and observed that 'the Court has never seen the 27 charge-of-status forms. . . ." J.A 10943. The workers then appended all the forms to their motion to "alter and amend" the decertification order -- a motion that was denied. J.A. 11005. 11083. Notably, it also appears that in 2006 the workers' expert provided Nucor with a list of the 27 employees used in the benchmark analysis. See J.A 1409. 1438. 9 Given that history, we would be remiss not to acknowledge the irony inherent in the dissent's insistence that we are now impermissibly making factual determinations without due deference to the district court. Upon examining the correct change-of-status forms, discerning whether they represent promotions is a relatively r221 straightforward enterprise. Nineteen of the 27 forms expressly state they are for a promotion, for a "successful bidder' on a "higher position," or for a new position that was "awarded" or "earned." Two of the forms describe changes in job classification accompanied by an increase in pay. One form notes that an inspector was a "successful bidder" on a mill adjuster job — a move referred to on another change form as a promotion. Two forms are for a "successful bidder' on a new position where no new pay grade is noted. The remaining three forms appear to involve changes in positions or training that involved a decrease in pay, but there is no indication, or argument by Nucor or the district court, that the exclusion of those forms would substantially undermine the probativeness of the expert analysis. The second assumption criticized by the district court was that the bidding pools for the 27 positions filled between December 1999 and January 2001 had the same average racial composition as the pools for similar jobs analyzed from 2001 to December 2003, when the company retained actual bidding data. Because of discovery limitations imposed by the district court, the information available r*23] regarding the 2001-2003 promotions was restricted to positions similar to ones bid on by the named plaintiffs, where there was at least one black bidder. However, because Nucor failed to retain bidding records for 1999- 2000, the data from that period could not ['9O6] be limited to positions where there was a known black bidder. Instead, the alternative benchmark had to assume that there was at least one black worker applying for each promotion analyzed -- an assumption that the district court concluded helped render the statistical analysis unreliable. But as we already determined in Brown I. the assumption does not fatally undermine the probativeness of the For internal use only SDNY_GM_00056823 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-00 19647 EFTA_00 167393 EFTA01295660 Page 28 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 experts' findings. The workers' experts limited the records they analyzed to the same positions identified in the later period when bidding data was available, positions for which there was a black bidder. J.A. 1161-62. In its original order denying certification, the district court observed that the assumptions regarding bidding "may be reasonable and the statistics based thereon may be relevant to prove discrimination at the plant," but "the necessity of the assumptions diminishes their probative value."" J.A. 8987; see also Brown I, 576 F.3d at 156. As we previously r*24] concluded, [HN12] an incremental reduction in probative value -- which is a natural consequence of the use of proxy data -- does not itself render a statistical study unreliable in establishing a question of discrimination common to the class. Brown I, 576 F.3d at 156. Indeed, to conclude otherwise would undermine our prior precedent in cases like Lewis and Fairfax, rendering plaintiffs unable to bring a statistics-based employment discrimination claim after a company has intentionally or inadvertently destroyed actual applicant data." See Lewis, 773 F.2d at 568; Fairfax, 629 F.2d at 940. 10 After we pointed to this language in Brown I, the district court did an about-face and changed its conclusion to state that the statistics were 'fundamentally unreliable.' J.A. 10941. 11 The workers experts acknowledged that the incomplete data "undermined" their "ability to use posting and bidding records to analyze (those] promotions." J.A. 1161. In context, hawever, the experts were lamenting the failure of Nucor to "produce all such records." J.A. 1161. As the experts concluded. they were able to "calculate reliable statistics" for the limited universe of positions they analyzed. even though greater discovery would have allowed them to make a more 'powerful" study of plantwide r251 disparities. J.A. 1253-54; see also J.A 1340-41. 3. The dissent points to still more statistical assumptions -- assumptions not discussed by either the district court or Nucor -- to further question the reliability of the alternative benchmark. Specifically, the dissent suggests that the black workers may not have been qualified for higher paying jobs and that they may have been denied promotions because of disciplinary records that were not themselves the result of racial animus. See post at 111, 114-17. As to the qualifications of the workers, Nucor identifies nothing in the record - - or in any factual findings by the district court - to suggest that black workers regularly applied for jobs for which they were not qualified, such that the reliability of the study would be compromised. Indeed, the Nucor job postings explicitly listed the minimum qualifications required, and the workers' experts reasonably assumed that individuals would normally apply only if they believe they met such qualifications. See J.A. 7763 (an example of a job posting); J.A. 1162. That is not to say that patently unqualified workers did not apply in isolated cases. But there is no reason to believe that such incidents ("26] would have substantially reduced the reliability of the statistical conclusions. It also bears repeating that it was Nucor that failed to retain or produce records that would have allowed the experts to take other variables like qualifications more precisely into account. See J.A. 1165. r9O7] The dissent, however, goes a step further in speculating that black workers may have been denied promotions because of their disciplinary records. See post at 111. Again, Nucor itself does not make this argument. Instead, the argument the dissent For internal use only SDNY_GM_00056824 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 19648 EFTA_00 167394 EFTA01295661 Page 29 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 constructs is based on the company's self-serving responses to the workers' interrogatories and requests for production -- where Nucor asserts that some of the black workers were not chosen for promotions due to disciplinary issues. The record, however, does not include disciplinary records for the named plaintiffs or putative class members. More fundamental, the workers allege that any disproportionate disciplinary action levied against them was itself a product of racial discrimination, with the disciplinary records then used as a pretext in hiring decisions. As worker Ramon Roane has stated: Discipline, attendance. and safety allegations are similar factors ("in that are not equally applied and that have been used as an excuse to deny promotions to me and other persons of my race. The attitudes I have experienced with white supervisors lead me to believe that my race and that of other black employees makes a difference in how we are treated and viewed for discipline(,) promotionsH and training. J.A. 1000; see also J.A. 1024 (Alvin Simmons's statement that a white employee was promoted over him despite the fact that the white employee "had been disciplined less than a year earlier for 'not paying attention' when operating equipment"); J.A. 1111 (Earl Ravenell's statement that black workers were disproportionately singled out for disciplinary action); J.A. 6783 (Michael Rhode's description of discrimination in disciplinary action). See generally J.A. 10960-10972 (the district court's factual findings regarding the existence of a racially hostile work environment); Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003) (allowing the use of circumstantial evidence to show that race was a motivating factor in a "mixed-motive" case involving both legitimate and illegitimate reasons for an employment decision); Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 193-94 (4th Cir. 2003) (allowing the use of circumstantial evidence to show that gender was "a motivating factor" ["28] in a failure to promote an employee). Given that background, it is easy to see why the district court chose not to advance the arguments that the dissent makes today. Finally, the dissent criticizes the assumption that the 27 positions identified were actually open for bidding." Post at 109. That assumption, however, derives directly from Nucor's stated policy that every job vacancy is posted on plant bulletin boards and is open to bidding plant-wide — a policy cited by Nucor's own expert and the district court. See J.A. 5887 (the Report of Finis Welch, observing that lojpen positions are posted on bulletin boards and through email," and that "[a]ll employees in the plant are eligible to bid on a posted job"); see also Resp'ts' Br. 9 ("Department managers set the process in motion by sending postings for available ["9O8] promotions to Personnel employees, who performed a purely clerical role and advertised postings plantwide."); J.A. 8979 (the district court's original order denying certification, finding that "[w]hen a position in a department becomes available, the job is posted on the plant's e-mail system, which is accessible to all employees in the plant"). The dissent nonetheless argues that the statistical assumption r29] was unreasonable.'' We disagree. 12 At times, the dissent seems to suggest that statistical assumptions themselves are to be viewed with great suspicion. (HN13] What matters, however, is not whether an analysis makes assumptions based on imperfect data, but whether those assumptions are reasonable. Indeed. statistics are not certainties but are merely 'a body of methods for making wise decisions in the face of uncertainty." W. Alen Walis & Harry V. Roberts. The Nature of Statistics 11 (4th ed. 2014); see also M.J. Moroney, Facts from Figures 3 (1951) ("A statistical analysis, properly conducted. is a delicate dissection of uncertainties, a surgery of suppositions."). For internal use only SDNY_GM_00056825 CONFIDENTIAL - PURSUANT TO FED. R.CCANI(E IDENTIAL DB-SDNY-00 19649 EFTA_00 167395 EFTA01295662 Page 30 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, "; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 13 The record does indicate that "supervisory positions" are not typically posted for bidding under the Nucor hiring policy. J.A. 257. Neither Nucor nor the district court, however, has provided any reason to believe that any of the 27 records at issue describe open supervisory jobs, as Nucor defined the term, and were thus not posted. Furthermore, the dissent suggests that there may have been isolated instances when Nucor did not follow its posting policy for non-supervisory jobs. The fact that a company does not follow its policy to r301 a tee. however, does not fatally undermine a statistical assumption based upon such a policy. 4. With the alternative benchmark evidence included, the statistical disparity in promotions is statistically significant at 2.54 standard deviations from what would be expected if race were a neutral factor. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n. 14, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977) (indicating that anything greater than two or three standard deviations in racial discrimination cases is suspicious, at least for large sample sizes); Brown I, 576 F.3d at 156 n.9 (applying the Hazelwood standard to the workers' statistical evidence); Jones v. City of Boston, 752 F.3d 38, 46-47 (1st Cir. 2014) (observing that two standard deviations has become the commonly accepted threshold for social scientists and federal courts "in analyzing statistical showings of disparate impact"). According to the experts' analysis, black employees constitute 19.24% of those who applied for relevant promotions. Yet such employees were only 7.94% percent of those promoted. Of course, [HN141 statistical significance is not always synonymous with legal significance. EEOC v. Fed. Reserve Bank of Richmond, 698 F.2d 633, 648 (4th Cir. 1983) rev'd on other grounds sub nom. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 104 S. Ct. 2794, 81 L. Ed. 2d 718 (1984). Indeed, the usefulness of statistical evidence often "depends on all of the surrounding facts and circumstances." Teamsters, 431 U.S. at 340. Here, the surrounding circumstances and anecdotal evidence of discrimination, ("31] as described in greater detail below, are precisely what help animate the statistical findings.- As we held in Brown I and reaffirm today, "because the appellants' direct evidence alone was sufficient to demonstrate common claims of disparate treatment and disparate impact, their statistical data did not need to meet a two-standard-deviation threshold." Brown I, 576 F.3d at 156-57. Thus it is plain that when the statistical disparity actually exceeded two standard deviations, the district court abused its discretion in decertifying the class. 14 Indeed. the workers statistical analysis may actually underestimate the impact of race on promotions at Nucor. As worker Erie Conyers stated in his declaration: "If I believed that a truly level playing field existed at the company I would have bid on numerous other positions such as Roll Gtide Builder in the Beam Will." J.A 1079. But the expert analysis at issue could not capture the impact of discrimination on depressed bidding rates. B. The district court further concluded that the workers' statistical and anecdotal ['9O9] evidence was insufficient for class certification insofar as the evidence did not demonstrate a uniform class-wide injury that spanned the entire Nucor plant. ("32] As the court observed, [FIN15] Wal-Mart instructs that plaintiffs must present a common contention capable of being proven or disproven in "one stroke" to satisfy Rule 23(a)(2)'s commonality For internal use only SDNY_GM_00056826 CONFIDENTIAL - PURSUANT TO FED. R.QCIANI(F IDENTIAL DB-SDNY-00 19650 EFTA_00 167396 EFTA01295663 Page 31 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 requirement. Wal-Mart, 131 S. Ct. at 2551. Thus, a class-wide proceeding must be able to generate common answers that drive the litigation. Id.; see also Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1165 (9th Cir. 2014) (observing that "a class meets Rule 23(a)(2)'s commonality requirement when the common questions it has raised are apt to drive the resolution of the litigation, no matter their number' (internal quotation marks omitted)). For a claim based on discrimination in employment decisions, "[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members' claims for relief will produce a common answer to the crucial question why was I disfavored." Wal-Mart, 131 S. Ct. at 2552 (emphasis omitted); see also Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113 (4th Cir. 2013). The workers here most generally present two such common contentions capable of class- wide answers under Title VII. Under a disparate treatment theory, the common contention is that Nucor engaged in a pattern or practice of unlawful discrimination against black workers in promotions decisions. See Teamsters, 431 U.S. at 336. Under the workers' disparate impact theory, the common contention r*33] is that a facially neutral promotions policy resulted in a disparate racial impact. See Griggs, 401 U.S. at 429-31. As Wal-Mart observed, however, semantic dexterity in crafting a common contention is not enough. Commonality instead "requires the plaintiff to demonstrate that the class members 'have suffered the same injury[.]"' Wal-Mart, 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 157). As such, a court must examine whether differences between class members impede the discovery of common answers. Id. at 2551. [FIN16) In the absence of a common job evaluation procedure, Wal-Mart held that statistical proof of employment discrimination at the regional and national level, coupled with limited anecdotal evidence from some states, was insufficient to show that the company maintained a "general policy of discrimination" present in each store where class members worked. See Wal-Mart, 131 S. Ct. at 2553. Similarly, the district court here found that the workers' statistical and anecdotal evidence was insufficient to show a general policy in all Nucor departments that caused the class injury. The district court, however, failed to adequately appreciate three significant differences from Wal-Mart that make the case largely inapposite to the facts at hand. 1. First, Wal-Mart discounted the plaintiffs' statistical r341 evidence in large part because the statistics failed to show discrimination on a store-by-store basis. See Wal-Mart, 131 S. Ct. at 2555. As such, the plaintiffs could not establish that a store greeter in Northern California, for instance, was subject to the same discrimination as a cashier in New Hampshire. These dissimilarities between class members were exacerbated by the sheer size of the Wal-Mart class - 1.5 million members working at 3,400 stores under "a kaleidoscope of supervisors (male and female), subject to a variety of regional policies [* 91 0] that all differed." Id. at 2557 (quoting Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 652 (9th Cir. 2010) (Kozinski, J., dissenting)). The scale and scope of the putative class, combined with the nature of the evidence offered, was thus essential to Wal-Mart's holding. Had the class been limited to a single Wal-Mart store spanning multiple For internal use only SDNY_GM_00056827 CONFIDENTIAL - PURSUANT TO FED. R.CON(FIDENTIAL DB-SDNY-0019651 EFTA_00 167397 EFTA01295664 Page 32 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, "; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 departments, or had the plaintiffs' evidence captured discrimination at a store level, a very different Rule 23(a)(2) analysis would have been required. In contrast to Wal-Mart, this litigation concerns approximately 100 class members in a single steel plant in Huger, South Carolina. The class members shared common spaces, were in regular physical contact with other departments, could apply for promotions in other ["35] departments, and were subject to hostile plant-wide policies and practices. See Brown I, 576 F.3d at 151. Such differences are not merely superficial. Instead, [HN17] a more centralized, circumscribed environment generally increases the uniformity of shared injuries, the consistency with which managerial discretion is exercised, and the likelihood that one manager's promotions decisions will impact employees in other departments. That is particularly the case where, as discussed further below, the entire Nucor plant was allegedly infected by express racial bias and stereotypes — a culture that management took few affirmative steps to meaningfully combat. Nonetheless, the district court analogized to Wal-Mart in finding that the workers' evidence of discrimination was insufficient because it disproportionately concerned a single department -- the Beam Mill — and because there was an insufficient showing that all departments operated under a common policy of discrimination. J.A. 10949-54. As such, a class-wide proceeding would not generate "common answers" as Wal-Mart required, the district court found. See Wal-Mart, 131 S. Ct. at 2551. The district court, however, inappropriately discounted, and often ignored, evidence that establishes discrimination ["36] in other Nucor departments. Although 11 of the 16 employees submitting declarations on behalf of the plaintiffs worked in the Beam Mill, the declarants describe frequent instances of alleged promotions discrimination in other departments. See J.A. 1021-24; 1032-35; 1049-51; 1055-56; 1061-63; 1085-86; 1091-92; 1103; 1110-11; 1118-19. Even the additional affidavits obtained by Nucor, discussed in further detail below, present numerous allegations of discrimination in non-Beam Mill departments. See J.A. 5992-95 (discrimination in the Hot Mill and Melt Shop); 6143-45 (discrimination in the Hot Mill); 6174 (general observations of promotions discrimination); 6369-70 (discrimination in the Melt Shop); 6505-07 (discrimination in the Hot Mill); 7036 (discrimination in the Melt Shop). The record additionally indicates numerous complaints of discrimination made to the plant's general manager, who allegedly did little to nothing in response. Such alleged tolerance of discrimination from top management at the plant supports the workers' contention of a class-wide injury that affected them all." 15 As the district court found in the context of the workers' hostile work envirorsnent claim: These affidavits ni support the Court's conclusion that although allegations of a hostile work environment were most prevalent and severe in the Beam Mill, employees from all of the production departments were subjected to abusive behavior. Specifically. employees from every department reported seeing the Confederate flag, employees from every department reported seeing racist graffiti; and employees from every department reported receiving racially offensive e-mails. Furthermore. in several instances, employees who worked in one department indicated they were harassed by employees from other departments, and many employees reported observing what they considered to be racist symbols and racist graffiti in common areas of the plant. J.A 10968. For internal use only SDNY_GM_00056828 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-00 19652 EFTA_00 167398 EFTA01295665 Page 33 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 r911] The district court made a still more fundamental error by choosing to treat the Nucor departments as autonomous operations in the first place instead of part of a single facility, contravening both this Court's instructions in Brown I and the district court's own prior findings. The district court's original order to certify the class recognized that a department-by-department approach had been foreclosed, writing: Since the Fourth Circuit rejected Ns Court's characterization r381 of the production departments as separate environments, the Court must proceed under the assumption that the production departments were permeable, if not unitary. This assumption is buttressed by the fact that Nucor's bidding is plart-wide. and this Court already has held that "potential applicants are eligible to prove they would have applied for a promotion but for the discriminatory practice." J.A. 9705. Wal-Mart provided no grounds for the court to reconsider that finding because [HN18] nothing in the Supreme Court's opinion suggests that single, localized operations must be analytically dissected into component departments.'° Here, all of the workers' evidence concerns a single connected facility. 16 The dissent insists that Brown l's determination that the Nucor plant should be treated as a single facility only extended to the hostile work environment claim. Post at 123-24. Yet the discussion of the issue in Brown I was specifically premised on the district court's findings regarding both the "pattern or practice" and the work environment clams. Brown I, 576 F.3d at 157. A district court may not typically rektigate "issues expressly or impkedly decided by the appellate court." Bell. 5 F.3d at 66. Here. even the district court has recognized rm391 that Brown I prevented a finding that the plaid was not a witary environment in the context of the promotions claim. J.A. 9706 (Certification Order). Even if not required by our prior ruling, treating the plant as a single entity remains sound. In addition to the direct and circumstantial evidence of discrimination in promotions decisions in multiple departments, racial bias in one Nucor plant department itself diminished the promotional opportunities for black workers in all the departments — including those who wanted promotions into the infected department and those who sought promotions to other departments and needed their supervisors' recommendations. To that end, the workers cogently observe that requirements for dual approvals for promotions -- by originating and destination department heads — "carilied] the effects of racial discrimination from one department and supervisor to another, either by systemic tolerance, acquiescence or design." Appellants' Reply Br. 24 (citing Smith v. Bray, 681 F.3d 888, 897 & n.3 (7th Cir. 2012)). Such a conclusion is further strengthened by the workers' hostile work environment claim. As the district court itself found. "the plaintiffs have submitted significant proof that the landscape of the total work environment [".40] at the Berkeley plant was hostile towards African-Americans and that the defendants failed to take 'remedial action reasonably calculated to end the harassment."' J.A. 10966; see also Brown I, 576 F.3d at 157-58. That environment, the workers argue, supports their showing of an atmosphere of systemic tolerance of racial hostility by managers and supervisors, forming part of the overall pattern or practice that "infected black p912] employees' promotion opportunities." We agree. 2. Second, the Wal-Mart plaintiffs' theory of commonality relied, in part, on showing that the company maintained a corporate culture that facilitated the uniform transmission of implicit, For internal use only SDNY_GM_00056829 CONFIDENTIAL - PURSUANT TO FED. R.QCIANI(E IDENTIAL DB-SDNY-00 19653 EFTA_00 167399 EFTA01295666 Page 34 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, "; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 or subconscious, bias into the hiring process. See Wal-Mart, 131 S. Ct. at 2548. To that end, the plaintiffs' expert testified the company was "vulnerable" to "gender bias." Id. at 2553. The Court, however, concluded that the expert could not with specificity determine how the culture concretely influenced individual employment decisions. Id. at 2553-54. The testimony was therefore insufficient to show a common policy that produced a common injury. Here, however, the workers have provided substantial evidence of unadulterated, consciously articulated, odious racism throughout the Nucor plant, including affirmative [""41] actions by supervisors and a widespread attitude of permissiveness of racial hostility. The examples in the record are ubiquitous: bigoted epithets and monkey noises broadcast across the plant radio system, emails with highly offensive images sent to black workers, a hangman's noose prominently displayed, a white supervisor stating that "niggers aren't smart enough" to break production records, and abundant racist graffiti in locker rooms and shared spaces. Moreover, no more than one black supervisor worked in the Nucor production departments until after the EEOC charge that preceded this litigation. It strains the intellect to posit an equitable promotions system set against that cultural backdrop, particularly in light of the other evidence presented. The dissent rejects the idea that evidence of a racially hostile work environment may help establish a claim for disparate treatment in promotions decisions." Post at 124-25. Indeed, the dissent goes so far as to observe that "locker rooms and radios bear no relationship to promotions decisions." Id. at 125. Such a perspective, however, is perplexingly divorced from reality and the history of workplace discrimination. [1-1N19] It is difficult to fathom how widespread [""42] racial animus of the type alleged here, an animus that consistently emphasized the inferiority of black workers, bears no relationship to decisions whether or not to promote an employee of that race. Although the dissent asserts that "nothing in the record supports" making a connection between the work environment and promotions practices, we are not limited to the record in making such elementary judgments. Justice is not blind to history, and we need not avert our eyes from the broader circumstances surrounding employment decisions, and the inferences that naturally follow. 17 We do not suggest. of course. that evidence of a hostile work environment is sufficient by itself to support a disparate treatment or disparate impact claim. Rather, we merely observe that the substantial showing of endemic prejudice at the plant -- a prejudice that was allegedly tolerated and/or encouraged by management - heightens the probativeness of the workers' other evidence. 3. Third, and related, the anecdotal evidence of discrimination in this case is substantially more probative than that in Wal-Mart. The Wal-Mart plaintiffs presented affidavits from about 120 female employees, representing approximately ["43] one affidavit for every 12,500 class members. Wal-Mart, 131 S. Ct. at 2556. The affidavits captured only 235 of Wal-Mart's 3,400 stores, and there were no affidavits p913] from workers in 14 states. Id. The evidence thus fell far short of the benchmark for a showing of company-wide discrimination established by Teamsters, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396. In Teamsters, the plaintiffs produced statistical evidence of racial bias combined with For internal use only SDNY_GM_00056830 CONFIDENTIAL - PURSUANT TO FED. R.QCIANI(FIDENTIAL DB-SDNY-00 19654 EFTA_00 167400 EFTA01295667 Page 35 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 approximately 40 accounts of discrimination from particular individuals. Id. at 338. Given the class size of approximately 334 persons, there was roughly one anecdote for every eight members of the class. See id. at 331, 338; Wal-Mart, 131 S. Ct. at 2556. "[T]he anecdotes came from individuals spread throughout the company who for the most part worked at the company's operational centers that employed the largest numbers of the class members." See Wal-Mart, 131 S. Ct. at 2556 (internal quotation marks omitted). Similarly, this litigation includes anecdotal evidence from more than 16 individualv in a class that numbered approximately one-hundred "past and present black employees at the plant" at the time litigation commenced -- an approximate ratio of one anecdote for every 6.25 class members.'' See Brown I, 576 F.3d at 151 (describing the class size). 18 This number includes both the 16 declarations introduced by the workers and other r44) accounts of discrimination included in affidavits obtained by Nucor after the EEOC charge was filed. See. e.g.. J.A. 5992-95. 6143-45. 6174, 6369-70. 6505-07. 7036. Of the 16 worker-filed declarations. Byron Turners statement fails to mention specific instances of promotions discrimination. but instead affirms that that he was "affected by the same practices that Ramon Roane and the other named plaintiffs" have raised. J.A 1124. The dissent argues that the declaration of Walter Cook also fails to mention promotions. Post at 134. Cook's declaration, however, states that he heard white employees talking about a black worker's application for an Operator position. According to Cook, the employees stated they would "do everything that they could to make sure that nigger didn't get the job." J.A. 1075. Further, the dissent argues that the declaration from Kemeth Hubbard includes a complaint that Nucor in tact promoted him. Post at 134. Hubbard's declaration, however. accuses Nucor of placing him "in the position to get (himl out of the mill and the line of progression that lead to supervisory positions." J.A 1097. Hubbard also observes that his trajectory at the company was dramatically different from that (""451 of a white co-worker who started at the plant at the same time and later became a supervisor. Id. Indeed, the dissent's approach to the affidavits, consistent with its approach to the anecdotal evidence throughout. appears to be to cherry pick facts from an 11.000 page record. strip those facts of context. and then argue that they undermine the substantial, credible evidence of discrimination that the workers have produced. 19 There is some uncertainty about the precise size of the class. At the time the litigation began. seventy-one workers at the Nucor plant were black. Brown I. 576 F.3d at 151. As the district court found. there was a total of "ninety-folk black employees who worked at the plant from 2C01 through 2004." Id. at 152. The workers' experts estimated that there may have been about 150 black workers in total who "were potentially affected by the selection decisions regarding promotion at Nucor-Berkeley." JA 1154. Even assuming a class size of 150, there would be more than one anecdotal account of racial discrimination for every 9.38 class members, a ratio that remains in line with the evidence in Teamsters. Furthermore, that number does not take into account the descriptions of discrimination in promotions (""461 decisions in the affidavits that Nucor itself obtained, as previously described. Balanced against such evidence, the district court gave "limited weight" to approximately 80 affidavits from Nucor employees largely disclaiming discrimination at the plant - affidavits taken by company lawyers after the EEOC charges had been filed. See J.A. 10950-51. Common sense and prudence, however, instruct that the affidavits do little to rebut the evidence of discrimination insofar as they were given under potentially coercive circumstances, where the company reserved its ability to p9141 use them against other employees in any future lawsuit (a fact that was omitted from the Statement of Participation given to affiants). See J.A. 6003 (the Statement of Participation), 9379 (Nucor's statement that it intended "to use the affidavits for every purpose permitted under the Federal Rules of Evidence," including the opposition to class certification and the impeachment of witnesses); see also Kleiner v. First Nat'l Bank of Atlanta, 751 F.2d 1193, 1202 (11th Cir. 1985) (observing that after a class action has been filed, "[a] unilateral communications scheme . . . is rife with potential for coercion"); Quezada v. Schneider Logistics Transloading & Distrib., No. CV 12-2188 CAS, 2013 U.S. Dist. LEXIS 47639, 2013 WL 1296761, at *5 (C.D. Cal. Mar. 25, 2013) (finding in a class action context that [**47] "[flailing to inform the employees of the evidence-gathering purpose of the interviews rendered the communications fundamentally misleading and deceptive because For internal use only SDNY_GM_00056831 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 19655 EFTA_0016740I EFTA01295668 Page 36 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 the employees were unaware that the interview was taking place in an adversarial context, and that the employees' statements could be used to limit their right to relief'); Longcrier v. HL-A Co., 595 F. Supp. 2d 1218, 1228 (S.D. Ala. 2008); Mevorah v. Wells Fargo Home Mort., Inc., No. C 05-1175 MHP, 2005 U.S. Dist. LEXIS 28615, 2005 WL 4813532, at *4 (N.D. Cal. Nov. 17, 2005). Of course, [I-IN201companies may investigate allegations of discrimination and take statements from employees. But when it comes to assessing the probative value of those statements -- when weighed against the numerous declarations of employees who took the often grave risk of accusing an employer of a workplace violation - courts should proceed with eyes open to the imbalance of power and competing interests.'D Moreover, as previously observed, the company-obtained affidavits still contain numerous allegations of discrimination in promotions decisions - allegations that carry significant weight given the circumstances in which they were made. See J.A. 5992-95, 6143-46, 6174, 6370, 6506, 7036. 20 The dissent is thus mistaken when it asserts that we are articulating a ("48] new rule that courts categorically may not consider the affidavits obtained by companies as part of an investigation irto allegations of discrimination. See post at 141. Instead. our analysis concerns the weight that should be given to such affidavits in these circumstances. Of course, [HN211 a plaintiff need not "offer evidence that each person for whom it will ultimately seek relief was a victim of the employees discriminatory policy." Teamsters, 431 U.S. at 360; see also EEOC v. Korn Indus., Inc., 662 F.2d 256, 260 (4th Cir. 1981). Instead, a bifurcated class action proceeding allows for a "liability" stage to first determine whether an employer engaged in a pattern or practice of discriminatory conduct. Teamsters, 431 U.S. at 360; Korn, 662 F.2d at 260. Upon a finding of liability, a second damages stage allows for the consideration of which individuals were specifically harmed by the policy. Teamsters, 431 U.S. at 361; Korn, 662 F.2d at 260. 4. Here, [HN22] for a liability determination in a disparate treatment claim, the workers' statistical and anecdotal evidence, especially when combined, thus provide precisely the 'glue' of commonality that Wal-Mart demands. See Brown I, 576 F.3d at 156. Such a claim requires proof of a "systemwide pattern or practice" of discrimination such that the discrimination is "the regular rather than the unusual practice." Teamsters, 431 U.S. at 336; Cooper, 467 U.S. at 875-76; see also Wal-Mart, 131 S. Ct. at 2552 n.7. The required discriminatory r*49] intent may be inferred upon such a showing. See Teamsters, 431 U.S. at 339-40; r915] Hazelwood, 433 U.S. at 308-09 (observing that "[w]here gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination"). Whereas there may have been many answers in Wal-Mart to the question of why any individual employee was disfavored, the workers here have sufficiently alleged that there is only one answer to the question of why Nucor's black workers were consistently disfavored.:' [HN23] Unlike a disparate impact claim, a showing of disparate treatment does not require the identification of a specific employment policy responsible for the discrimination. See Teamsters, 431 U.S. at 336 n.16 (discussing the legislative history of Title VII and concluding that the words "pattern or practice" should be interpreted For internal use only SDNY_GM_00056832 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-00 19656 EFTA_00 167402 EFTA01295669 Page 37 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 according to their plain meaning). A pattern of discrimination, revealed through statistics and anecdotal evidence, can alone support a disparate treatment claim, even where the pattern is the result of discretionary decision-making. 21 Contrary to the dissents assertion, we do not find 'in the first instance' that the worker's allegation is correct. Instead. we conclude that the district court dearly erred in finding ("50] that the allegation was not sufficiently supported by the record. To hold otherwise would dramatically undermine Title VII's prophylactic powers. As the Supreme Court observed in Griggs, a central purpose of Title VII is "to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees." 401 U.S. at 429-30; see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975) (stressing Title VII's prophylactic goals in addition to its purpose "to make persons whole for injuries suffered on account of unlawful employment discrimination"). Here, where substantial evidence suggests a pattern of engrained discriminatory decision- making that consistently disadvantaged black workers at Nucor, to deny class certification would significantly weaken Title VII as a bulwark against discrimination. C. [HN24] Statistics and anecdotes suggesting a pattern of discrimination, however, are not enough alone to sustain a disparate impact claim. See Wal-Mart, 131 S. Ct. at 2555; Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994, 108 S. Ct. 2777, 101 L. Ed. 2d 827 (1988). Disparate impact liability requires the identification of a specific employment practice that caused racially disparate results. See 42 U.S.C. § 20O0e-2(k); Watson, 487 U.S. at 986-87; Griggs, 401 U.S. at 431. Unlike disparate treatment, the disparate impact theory does not require proof of improper intent [" 51 ] to sustain a Title VII violation. Teamsters, 431 U.S. at 349; Griggs, 401 U.S. at 429-31 (finding the use of standardized tests resulted in a disparate impact). Instead, liability is premised on facially neutral policies. Griggs, 401 U.S. at 431. [HN25] Under Wal-Mart, a mere showing that a "policy of discretion has produced an overall . . . disparity does not suffice." Wal-Mart, 131 S. Ct. at 2556. Instead, plaintiffs who allege such a policy of discretion must demonstrate that a "common mode of exercising discretion" actually existed throughout a company. Id. at 2554; see also Tabor v. Hilti, Inc., 703 F.3d 1206, 1229 (10th Cir. 2013) (observing that "after Wal-Mart, federal courts . . . have generally denied certification when allegedly discriminatory [' 916] policies are highly discretionary and the plaintiffs do not point to a common mode of exercising discretion that pervades the entire company" (internal quotation marks omitted)). Given that standard, the district court here found that the workers "failed to identify any factor that unites the manner in which the various decision makers throughout the Berkeley plant exercised their discretion." J.A. 10955. Wal-Mart recognizes that in certain cases, "giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory," 131 S. Ct. at 2554, because "an employer's undisciplined system ("52] of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional For internal use only SDNY_GM_00056833 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 19657 EFTA_00 167403 EFTA01295670 Page 38 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 discrimination." Id. (alteration in original) (quoting Watson, 487 U.S. at 990). For a nationwide class, Wal-Mart found that proving a consistent exercise of discretion will be difficult, if not impossible in some circumstances. Id.; see also Davis v. Cintas Corp., 717 F.3d 476, 488 (6th Cir. 2013) (noting the difficulties Wal-Mart presents for parties seeking to certify a nationwide class). But [HN26] for a localized, circumscribed class of workers at a single facility, a policy of subjective, discretionary decision-making can more easily form the basis of Title VII liability, particularly when paired with a clear showing of pervasive racial hostility. In such cases, the underlying animus may help establish a consistently discriminatory exercise of discretion. This Court's recent opinion in Scott v. Family Dollar Stores, Inc. specifically provides several ways that such a disparate impact claim may satisfy Rule 23 after Wal-Mart, including: (1) when the exercise of discretion is "tied to a specific employment practice" that "affected the class in a uniform manner"; (2) when there is "also an allegation of a company-wide policy of discrimination" that affected [""53] employment decisions; and (3) 'When high-level personnel exercise" the discretion at issue. Scott, 733 F.3d at 113-14. The first and second of Scott's alternatives are most relevant to this case. A specific employment practice or policy can comprise affirmative acts or inaction. Cf. Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991) (explaining an employer's responsibility to act to rectify a hostile or offensive work environment under Title VII). Regarding affirmative acts, the district court has established that Nucor's promotions practice provides that le]mployees in each of the production departments may bid on positions available in other departments," and that in order to promote one of the bidders, "the supervisor, the department manager, and the general manager must approve a written change of status and then submit the change of status form to the personnel office." J.A. 477-78. For purposes of class certification, the workers have provided sufficient evidence that such a policy, paired with the exercise of discretion by supervisors acting within it, created or exacerbated racially disparate results. The promotions system, requiring approvals from different levels of management, created an environment in which the discriminatory exercise of discretion by one [""54] department head harmed the promotions opportunities for all black workers at the plant by foreclosing on opportunities in that department and generally impeding upward mobility. Moreover, the disproportionate promotions of white workers had to be ratified by the general manager, Ladd Hall, who was thus on notice, or should have been on notice, that there were pronounced racial disparities in department- level promotion practices, r9171 as indicated by the statistical and anecdotal evidence presented. The workers have also presented sufficient evidence of a practice of inaction by the general manager who ignored the evidence of, and complaints regarding, discrimination in promotions at the plant. See, e.g., J.A. 996-97, 1016, 1056, 1087, 1104. Such managerial inaction occurred despite Nucor's status as an "Equal Opportunity Employer" and its claim to have a "plantwide policy barring racial discrimination." Resp'ts' Br. 6. One black worker, Ray Roane, has testified that he complained directly to Hall about discrimination in promotions. J.A. 996-97. Hall threatened his job. J.A. 997. Consistent with that evidence, the workers observe in the context of their hostile work environment claim that [""55] For internal use only SDNY_GM_00056834 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 19658 EFTA_00I67404 EFTA01295671 Page 39 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 despite a policy of investigating complaints of racial harassment, "[n]ot even one of the five department managers has been shown to have lifted a finger to redress the racially hostile work environment found to exist both plant-wide and in each department." Appellants' Br. 25. The workers have sufficiently alleged that such a uniform policy of managerial inaction also contributed to racial disparities in promotions decisions. Consistent with Scott, the workers have further demonstrated that the exercise of discretion at Nucor was joined by "a company-wide policy of discrimination" that was encouraged, or at least tolerated, by supervisors and managers. See Scott, 733 F.3d at 114. In addition to the evidence of a hostile work environment previously described in detail, one white supervisor has expressly stated in a deposition that he heard the head of the Beam Mill declare, "I don't think we'll ever have a black supervisor while I'm here." J.A. 1885-86. Such facts provide a critical nexus between the racial animus at the plant and promotions decisions that impacted all black workers by foreclosing opportunities for them. Or, using Wal-Mart's language, the evidence of pervasive racial hostility in the working [**56] environment provides a "common mode of exercising discretion that pervade[dj the entire company." Wal-Mart, 131 S. Ct. at 2554-55. In the end, Wal-Mart simply "found it unlikely" that thousands of managers across different regions "would exercise their discretion in a common way without some common direction." Tabor, 703 F.3d at 1222. Here, however, the workers have provided ample evidence supporting their allegation of a common, racially-biased exercise of discretion throughout the plant - demonstrated through alleged incidents of specific discrimination in promotions decisions, statistical disparities, and facts suggesting pervasive plant-wide racism. The district court abused its discretion in finding that such evidence was insufficient to meet the burden that Wal-Mart imposes. IV. Nucor further argues that the workers have failed to contest the district court's independent finding that the putative class failed to satisfy Rule 23(b)(3). As the company observes, the district court specifically held that the class failed to meet the rule's requirements for a class action seeking individualized money damages, namely, that common questions predominate over individualized inquiries and that the class action is "superior to other available methods for fairly and ["57] efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). The court remarked that "even if the Fourth Circuit subsequently concludes that the plaintiffs have identified a common issue that satisfies Rule 23(a)(2), this Court nonetheless finds that 'common issues,' as that term is defined by Wal-Mart, do not predominate over individual [' 918] issues with regard to the plaintiffs' promotions claims."r J.A. 10956. 22 This Court has previously observed that g-IN27] lijn a class action brought under Rule 23(5)(3), the 'commonality' requirement of Rule 23(a)(2) is 'subsumed wrier. or superseded by. the more stringent Rule 23(b)(3) requirement that questions common to the class predominate over' other questions." Lienhart v. Dryvit Sys.. Inc.. 255 F.3d 138, 146 n.4 (4th Cir. 2001) (quoting Amchem. 521 U.S. at 609). But as Wal-Mart made clear, the Rule 23(a) commonality requirement and the Rule 23(b)(3) predominance requirement remain separate inquiries. Wal-Man. 131 S. Ct. at 2556. For internal use only SDNY_GM_00056835 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 19659 EFTA_00 167405 EFTA01295672 Page 40 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 Nucor contends that nowhere in the workers' opening brief is the Rule 23(b)(3) ruling addressed, and that any challenge to that decision has thus been waived. [HN281 The doctrine of waiver derives from the Federal Rules of Appellate Procedure, which require that the argument section of an appellant's opening brief contain the "appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant [**58] relies." Fed. R. App. P. 28(a)(8)(A); see also Mayfield v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369, 376-77 (4th Cir. 2012). "Failure of a party in its opening brief to challenge an alternate ground for a district court's ruling . . . waives that challenge." United States ex rel. Ubl v. IIF Data Solutions, 650 F.3d 445, 456 (4th Cir. 2011) (quoting Rodriguez v. Hayes, 591 F.3d 1105, 1118 n.6 (9th Cir. 2010))). The workers contend first, and we agree, that no waiver occurred because their arguments in the opening brief extended to the district court's discussion of both predominance and commonality. The single issue identified by the workers on appeal did not differentiate between the court's findings on either question. The issue, as presented, was this: Was it error or an abuse of discretion for the district court not to follow this Circuit's mandate holding that sufficient statistical and non-statistical evidence has been presented to certify a pattern-or-practice and disparate impact class covering all six production departments of the defendants' manufacturing plant in Huger, South Carolina? Consistent with that framing, the workers' opening brief describes the district court's decision in equally broad terms without distinguishing between commonality and predominance. See Appellants' Br. 28-29 ("The district court erred as a matter of law by declining to follow this Court's mandate that held there is sufficient statistical r59] and non-statistical evidence to certify a class covering all six production departments."); Appellants' Br. 3 (citing to the portion of the district court opinion where predominance is discussed). Although more explicit separation of the predominance and commonality inquiries would no doubt have been wise, the workers' arguments throughout their brief directly respond to the issues the district court raised in both contexts (issues that, as discussed below, were intertwined by the court). The workers, for instance, specifically cite cases discussing predominance when arguing about the extent to which a court may look to merits in deciding certification. See Appellants' Br. 34-35. Elsewhere, in discussing the sufficiency of the anecdotal evidence presented, the workers argued in favor of our holding in Brown I that "[t]his evidence alone establishes common claims of discrimination worthy of class certification." Appellants' Br. 42 (citing Brown I, 576 F.3d at 153). Certification of the workers' class required a finding that Rule 23(b) was satisfied, in addition to a finding of commonality under Rule 23(a)(2). More generally, without limiting its analysis to the question of commonality, the workers' opening brief observes [*919] that "[I]he district [**60] court's finding that there is no pattern-or-practice evidence in the non-Beam Mill departments is directly contrary to the evidence and [the Fourth Circuit's] mandate." Appellants' Br. 42-43. It is true that the workers arguments often focus expressly on the question of commonality, as Wal-Mart focused its analysis. In that regard, however, the workers have merely followed the district courts lead insofar as the court itself raised the same arguments under Rule 23(b)(3) as it did regarding commonality under Rule 23(a)(2).fl See J.A. 10958- For internal use only SDNY_GM_00056836 CONFIDENTIAL - PURSUANT TO FED. R.WANI(E IDENTIAL DB-SDNY-00 19660 EFTA_00 167406 EFTA01295673 Page 41 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, "; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 59; see also United States v. Goforth, 465 F.3d 730, 737 (6th Cir. 2006) (observing that [HN29] "where an argument advanced in an appellant's opening brief applies to and essentially subsumes an alternative basis for affirmance not separately argued therein, the appellant does not waive that alternative basis for affirmance"). The district court based its conclusion that common issues did not predominate on the observation that because the workers' evidence disproportionately concerns the Beam Mill, "there is no 'glue' connecting the promotions decisions in the Beam Mill to the decisions in the other departments." J.A. 10959. That is exactly the same argument raised, and responded to by the workers, in the context of Rule 23(a)(2) commonality. See J.A. [*61] 10950-54; Appellants' Br. 42-47. Elsewhere in its Rule 23(b)(3) discussion, the court observes that lajlthough there are, to varying degrees, a few allegations of discrimination in promotions in departments other than the Beam Mill, there is nothing to link these allegations to the pattern of behavior alleged in the Beam Mill." J.A. 10959. Again, this argument is also made in the Rule 23(a)(2) context and responded to in detail by the workers there. Indeed, the district court itself acknowledged that it "employ[ed] the language of Wal-Mart" regarding Rule 23(a)(2) in discussing the requirements of Rule 23(b)(3). J.A. 10958-59. In responding directly to the reasons given by the district court for its predominance determination, the workers have thus done far more than take a mere "passing shot at the issue." See Belk, Inc. v. Meyer Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012) (finding that an issue was waived after a party mentioned the issue in a heading but failed to further develop the argument); see also Williams v. Woodford, 384 F.3d 567, 587 n.5 (9th Cir. 2002) (concluding that an appellant preserved a claim for review even though the argument consisted of "eight sentences in a footnote," where the argument identified the basis of disagreement with the district court, the requested relief, and relevant citations to case law and the record). 23 Even superficially, the district r62] court includes its predominance analysis under the heading of "Subjectivity as a Policy." dovetailing a discussion of commonality. instead of as a separate section of analysis. See J.A 10954. 10956. Nonetheless, the dissent argues that "many different reasons underlay [the district court's] predominance finding, including several individual questions that could 'overwhelm' common ones." Post at 69. But a plain reading of the district court's opinion belies the idea that it made any predominance arguments that were not responded to by the workers. The only specific argument cited by the dissent as unaddressed contends that because of the workers' reliance on anecdotal evidence, a jury "would have to delve into the merits of each individual promotion decision." J.A. 10959; post at 69. Yet, as observed above, the workers specifically argued that the anecdotal evidence establishes "common claims of discrimination" that merit certification, not merely a finding of commonality. ['92O] Appellants' Br. 42 (quoting Brown I, 576 F.3d at 153). Indeed, such an argument is consistent with the workers' fundamental contention throughout their brief that plant-wide discrimination existed. As this Court has observed, [HN30] the purpose of the waiver ("63] doctrine is to avoid unfairness to an appellee and minimize the "risk of an improvident or ill-advised opinion being issued on an unbriefed issue." United States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006) (citing McBride v. Merrell Dow & Pharm., Inc., 800 F.2d 1208, 1211, 255 U.S. App. D.C. 183 (D.C. Cir. 1986)). Given the briefing presented, the fully developed record For internal use only SDNY_GM_00056837 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-0019661 EFTA_00 167407 EFTA01295674 Page 42 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, "*; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 below, and the lack of any showing of unfairness or prejudice, there is simply no reason why we should exercise our discretion to discard years of litigation on appeal because of an inartful opening brief. See A Helping Hand, LLC v. Baltimore Cnty., Md., 515 F.3d 356, 369 (4th Cir. 2008) (observing that even when an argument has been waived, this Court may nonetheless consider it if a "miscarriage of justice would otherwise result" (internal quotation marks omitted)); cf. In re Am. W. Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir. 2000) (observing that a court may refuse to find waiver and consider an argument raised for the first time on appeal when the issue "is one of law and either does not depend on the factual record, or the record has been fully developed"). Independent of the adequacy of the workers' opening brief, the district court had no grounds to revisit the question of predominance in the first place given this Court's remand instructions and mandate in Brown I. Unlike the requirement of commonality under Rule 23(a)(2) discussed above, Wal-Mart did not change, nor purport to change, the Rule 23(b)(3) analysis. Indeed, any [*"64] impact of the Supreme Courts ruling on the question of whether common questions predominate is only incidental insofar as Wal-Mart recalibrated what constitutes a common question in the first place. The majority in Wal- Mart only invoked Rule 23(b)(3) to argue that the rule's well-established procedural protections should apply to the plaintiffs' claims for backpay. See Wal-Mart, 131 S. Ct. at 2559. Following our instructions in Brown I for the district court to "certify the appellants' class action." the court found that "the putative class satisfied both the predominance and superiority requirements of Rule 23(b)(3)." J.A. 10930. The court then certified the class for those employed in all six Nucor operations departments. The district court cites no new facts or legal precedent after Brown Ito justify revisiting that determination once the underlying question of commonality has been resolved. Nonetheless, the dissent insists that our decision in Brown I "did not prevent the district court in any way from considering predominance because our prior decision did not say anything about predominance." Post at 75-76 (emphasis added). Such a conclusion misconstrues both the plain language of our original mandate and ignores the district court's equally [*"65] plain understanding of it. The pivotal question in determining the scope of the mandate is whether the district court was free on remand to find that the workers had not satisfied the predominance requirement. If so, then our mandate did not reach the issue and the district court was free to reconsider it. But if the court did not have such liberty, then we must ask whether "controlling legal authority has changed dramatically" regarding Rule 23(b)(3) such that the court could reconsider the question. See Bell, 5 F.3d at 67. If no such change has occurred, then the district court could not revisit it. 0921] As for the first question, the district court had no discretion to find that the workers' class failed to satisfy Rule 23(b)(3), after we expressly told it "to certify the appellants' class action and to engage in further proceedings consistent with this opinion." Brown I, 576 F.3d at 160; see also Bell, 5 F.3d at 66 (requiring that [HN31] a district court "implement both the letter and spirit of the . . . mandate, taking into account [our] opinion and the circumstances it embraces" (internal quotation marks and citation omitted)); United States v. Pileggi, 703 F.3d 675, 679 (4th Cir. 2013) (observing that the mandate rule For internal use only SDNY_GM_00056838 CONFIDENTIAL - PURSUANT TO FED. R.QCIANI(EIDENTIAL DB-SONY-0019662 EFTA_00 l67,108 EFTA01295675 Page 43 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 "forecloses relitigation of issues expressly or impliedly decided by the appellate court" (quoting Bell, 5 F.3d at 66)); S. Atl. Ltd., 356 F.3d at 583 (observing r66] that a mandate must be "scrupulously and fully carried out" (internal quotation marks and citation omitted)). Indeed, the district court itself recognized that we had "dictate[d] the general outcome to be reached (class certification) while leaving [the district court] to fill in the details." J.A. 9886 (Order Den. Mot. for Recons. 8 n.2). Of course, the court could have, and did, evaluate whether certification was best under Rule 23(b)(2) or (b)(3). But it had no discretion to then find that the prerequisites of either rule were not met. As the court observed, Nucor's argument on remand that the workers had failed to satisfy Rule 23(b) "overlook[ed] the Fourth Circuit's prior holding in this case." J.A. 9704 (Certification Order).=• Thus, the dissent misstates the record when it maintains that our original decision did not "in any way" prevent the district court from considering predominance. Post at 75- 76. Indeed, following our instructions and findings in Brown I, the court proceeded to make the only finding it could under Rule 23(b)(3), namely, that "common issues predominate and that a class action is superior to any other method for adjudication of the claims in this case." The dissent is thus also misinformed when it states we are now certifying "a Rule 23(b)(3) class (**67] action without any court ever finding that the Rule 23(b)(3) requirements are satisfied." Post at 78. 24 The dissent also maintains that our mandate did not reach the question of predominance because we amended our original opinion in Brown Ito delete a specific reference to Rule 23(b)(3). Post at 77. Such a deletion, however, did not change either our mandate to certify - a mandate that required the court to find the workers lad met Rule 23(b) - or the district court's express understanding of that mandate. Given the fact that our prior ruling foreclosed the denial of certification on the basis of Rule 23(b)(3), the district court needed some compelling reason to reconsider the question. Bell, 5 F.3d at 67 (describing [HN32] the "extraordinary" exception to the mandate rule when there is "a show[ing] that controlling legal authority has changed dramatically"). But the court cited no such reason and, unlike the question of commonality, Wal-Mart provided none. Indeed, as the district court itself acknowledged, Wal-Mart only incidentally narrowed an inquiry into whether common questions predominate by clarifying what constitutes a common question in the first place under Rule 23(a)(2). J.A. 10971-72. V. More than seven years have now elapsed since the workers first filed their class certification r68] motion, and the district court twice has refused to certify the class. The nature of the allegations, the evidentiary support buttressing them, and the inherent cohesiveness of the class all demonstrate that the court's failure to certify was an error. [HN33] Rule 23 provides wide discretion to district courts, in part, to promote the ("922] systemic class action virtues of efficiency and flexibility. The realization of such benefits, however, requires that a district court exercise its judgment in a reasoned and expeditious manner. The dissent rightly observes that the majority presses forward "[o]n the road to its desired result." Post at 152. And that result is simple justice. At bottom, the workers seek nothing For internal use only SDNY_GM_00056839 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0019663 EFTA_00 167409 EFTA01295676 Page 44 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 more than the chance to speak with one voice about the promotions discrimination they allegedly suffered as one class on account of one uniting feature: the color of their skin. The dissent would deny them that chance while leading this Court down a different road - a road that would further weaken the class action as a tool to realize Title VII's core promise of equality. We vacate the district court's decertification of the workers' promotions class and remand the case to the district court with instructions ["69] to certify the class. VACATED IN PART, AND REMANDED WITH INSTRUCTIONS. DISSENT BY: AGEE DISSENT AGEE, Circuit Judge, dissenting: We typically tread lightly when reviewing a class certification decision, affording "substantial deference" to the district court, especially when it provides "well-supported factual findings." Ward v. Dixie Nat'I Life Ins. Co., 595 F.3d 164, 179 (4th Cir. 2010). Class certification proceedings often call for fact-intensive choices requiring intimate knowledge of the peculiarities of complex litigation. Id. We usually trust that the district court has the better eye for these sorts of questions. The majority today declines to follow that path. It instead takes issue with almost every aspect of the district court's decision to decertify, reversing that court's determination because of newfound facts on appeal and different notions about the nature of this case. In doing so, the majority creates a split between this Court and another, see Bennett v. Nucor Corp., 656 F.3d 802 (8th Cir. 2011), overlooks a plain and decisive waiver from the appellants, and drains a critical Supreme Court decision of much of its meaning, see Wal- Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). I respectfully dissent. I. Predominance A. The district court decertified Plaintiffs' promotions classes for two distinct reasons. First, the court found that Plaintiffs had not identified r70] a "question[) of law or fact common to the class," as Rule 23(a)(2) of the Federal Rules of Civil Procedure requires. Second, it held that any questions common to the class members did not "predominate over any questions affecting only individual members," so the class could not be certified under Rule 23(b)(3). Each of these separate reasons -- commonality or predominance — provide an independent ground to decertify the class. See, e.g., Thom v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 319 (4th Cir. 2006). Because the district court provided two different bases for its decision, Plaintiffs were required to contest both. They did not. Plaintiffs' opening brief nowhere mentions the topic of predominance. Neither does it refer to Rule 23(b). And even though "the main concern in the predominance inquiry" is "the balance between individual and common issues," For internal use only SDNY_GM_00056840 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 19664 EFTA_00167410 EFTA01295677 Page 45 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 Myers v. Hertz Corp., 624 F.3d 537, 549 (2d Cir. 2010), a reader searches in vain for any mention of such a "balancing" in Plaintiffs' submissions. Instead, Plaintiffs' opening brief focuses solely on Rule 23(a) commonality. The brief does not even contain a simple statement that the district court erred as to predominance for the same r923J reasons that it purportedly erred as to commonality -- not to say that such a statement would be sufficient, either. See Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1165 n.4 (9th Cir. 2014) (holding that "cursory statements that the district court's order also incorrectly [""71] applied Rule 23(b)(3)'s [predominance] requirement" are "not enough to preserve the issue for appeal"). An appellant must raise every issue that he wishes to press in his opening brief. If the appellant fails to address an issue there, then we will deem the issue waived or abandoned. We have repeated this rule so often that it might rightfully be termed the best- established rule in appellate procedure. See, e.g., Metro. Reg'I Info. Sys., Inc. v. Am. Home Realty Network, 722 F.3d 591, 602 n.13 (4th Cir. 2013); Kensington Volunteer Fire Dep't, Inc. v. Montgomery Cnty., 684 F.3d 462, 472 n.4 (4th Cir. 2012); Mayfield v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369, 376 (4th Cir. 2012); A Helping Hand, LLC v. Balt. Cnty., 515 F.3d 356, 369 (4th Cir. 2008); French v. Assurance Co. of Am., 448 F.3d 693, 699 n.2 (4th Cir. 2006). As a rule that "all the federal courts of appeals employ," waiver "makes excellent sense." Joseph v. United States, 135 S. Ct. 705, 705, 190 L. Ed. 2d 461 (2014) (Kagan, J., respecting denial of certiorari). In past cases, we have endeavored to apply our waiver rule consistently, finding waiver whenever a party fails to "develop [his] argument" -- even if his brief takes a passing shot at the issue. Belk, Inc. v. Meyer Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012). We have further found arguments waived even though they might have had merit. See IGEN Intl, Inc. v. Roche Diagnostics GmbH, 335 F.3d 303, 308-09 (4th Cir. 2003); Pleasurecraft Marine Engine Co. v. Thermo Power Corp., 272 F.3d 654, 657 (4th Cir. 2001). And we have applied the doctrine despite its potentially significant impact. See, e.g., Carter v. Lee, 283 F.3d 240, 252 n.11 (4th Cir. 2002) (applying the doctrine in a death penalty case). Given that Plaintiffs failed to challenge the district court's ruling on predominance, the plain and consistent waiver rule defeats their appeal. "[T]o obtain reversal of a district court judgment based on multiple, independent grounds, [""72] an appellant must convince us that every stated ground for the judgment against him is incorrect." In re Under Seal, 749 F.3d 276, 289 (4th Cir. 2014); accord Maher v. City of Chi., 547 F.3d 817, 821 (7th Cir. 2008); Jankovic v. Intl Crisis Gm., 494 F.3d 1080, 1086, 377 U.S. App. D.C. 434 (D.C. Cir. 2007). Appellate courts have repeatedly affirmed district court decisions denying class certification where plaintiffs failed to contest a predominance finding. See, e.g., Little v. T- Mobile USA, Inc., 691 F.3d 1302, 1306-08 (11th Cir. 2012); Klay v. Humana, Inc., 382 F.3d 1241, 1268 (11th Cir. 2004), abrogated on other grounds by Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 128 S. Ct. 2131, 170 L. Ed. 2d 1012 (2008); Applewhite v. Reichhold Chems., Inc., 67 F.3d 571, 573-74 (5th Cir. 1995). Nothing calls for a different result here. B. For internal use only SDNY_GM_00056841 CONFIDENTIAL - PURSUANT TO FED. R.cON(F IDENTIAL DB-SDNY-00 19665 EFTA_001674 II EFTA01295678 Page 46 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 In view of their failure to raise the predominance issue, Plaintiffs now suggest that Ipiredominance and commonality . . . are [both) part of Rule 23(b)(3)," such that a challenge concerning one should be treated as a challenge to both. Appellant's Reply Br. 2. They are mistaken. Commonality, found in Rule 23(a)(2), asks whether the proposed class will "resolve an issue that is central to the validity of each of one of the claims in one stroke." EQT Prod. Co. v. Adair, 764 F.3d 347, 360 (4th Cir. 2014). Predominance, found in ['92k1] Rule 23(b)(3), presents a "far more demanding" inquiry, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997), namely whether any common questions "pre-dominate over any questions affecting only individual members," Fed. R. Civ. P. 23(b)(3). Thus, while a "common issue" will establish commonality, that common issue only goes to one part of the predominance inquiry. Consequently, courts and parties must address these requirements separately, rather than muddle them together. See Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268-70 (11th Cir. 2009); In re Ins. Brokerage Litig., 579 F.3d 241, 277 (3d Cir. 2009); accord Ealy v. Pinkerton Gov't Servs., Inc., 514 F. App'x 299, 305 (4th Cir. 2013) (" r731 [T]he Rule 23(a) commonality requirement[] and the Rule 23(b)(3) predominance requirement remain separate inquiries and the inquiries should not be 'blended."'). The majority excuses Plaintiffs' waiver because it believes that Plaintiffs "followed the district courts lead" in combining the two issues. Maj. op. at 55. Thus, even though commonality and predominance are legally distinct, the majority speculates that the district court did not treat them as such here. The majority's analysis mischaracterizes the district court's opinion. The district court did not just repeat back its commonality findings in determining that Plaintiffs' class failed as to predominance. To the contrary, the court expressly held that it could not find the required predominance "even if the Fourth Circuit subsequently conclude[d] that plaintiffs have identified a common issue that satisfies Rule 23(a)(2)." J.A. 10956. The court then explained -- over several pages — that many different reasons underlay its predominance finding, including several individual questions that could "overwhelm" common ones. Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1196, 185 L. Ed. 2d 308 (2013). Because Plaintiffs heavily rely on anecdotal evidence, for instance, the district court correctly concluded that a jury 'would have to delve into the merits [*74] of each individual promotion decision" to determine whether each decision evidenced discrimination. J.A. 10959. Thus, a trial meant to resolve class- wide issues would likely devolve into a series of mini-trials examining each promotion decision made in the Nucor plant. The court further acknowledged that "individual damages determinations," like those that would be required here, can "cut against class certification." J.A. 10956. Although it concluded that such damages determinations did not, standing alone, compel decertification in this case, J.A. 10958, they did provide the district court an additional basis for caution in making its predominance finding. See, e.g., Cooper v. So. Co., 390 F.3d 695, 722-23 (11th Cir. 2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S. Ct. 1195, 163 L. Ed. 2d 1053 (2006) (noting that individualized damage issues could swamp the advantages coming from an initial, class- wide liability determination); accord Allison v. Citgo Petroleum Corp., 151 F.3d 402, 421-22 (5th Cir. 1998), cited with approval in Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, For internal use only SDNY_GM_00056842 CONFIDENTIAL - PURSUANT TO FED. R.CCANI(EIDENTIAL DB-SDNY-00 19666 EFTA_00167412 EFTA01295679 Page 47 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 445 n.18 (4th Cir. 2003); see also Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433, 185 L. Ed. 2d 515 (2013) (explaining that individual damage-related questions might destroy predominance); Windham v. Am. Brands, Inc., 565 F.2d 59, 71-72 (4th Cir. 1977). The district court appropriately resolved predominance separately from commonality. Plaintiffs' failure to address the predominance finding in any way ends their appeal. [`925] C. The majority at least recognizes that Plaintiffs should have ["75] been "more explicit" in addressing predominance. Maj. op. at 54; see also id. at 55 (acknowledging that Plaintiffs' "express[]" arguments largely concern commonality). Even so, it concludes that certain oblique references in Plaintiffs' briefs preserved a predominance-related challenge on appeal. They do not. Plaintiffs' statement of the issue on appeal, for instance, does not help them. See maj. op. at 53. The statement asks only whether "it [was] error or an abuse of discretion for the district court not to follow this Circuit's mandate" when it decertified the class. See Appellant's Br. 1. Here again, Plaintiffs never mention predominance, and the statement does not otherwise indicate any specific complaint with the district court's predominance holding. Even if it had, that reference would not have been enough without some further argument on the matter -- an argument that Plaintiffs wholly failed to provide. See Belk, Inc., 679 F.3d at 153 n.6; 11126 Balt. Blvd., Inc. v. Prince George's Cnty., Md., 58 F.3d 988, 993 n.7 (4th Cir. 1995). The majority also ignores Plaintiffs' waiver because their brief contains some broadly stated attacks on the district court's decertification decision — attacks purportedly not "limit[ed] to the question of commonality." Maj. op. at 55. But in the usual case, a generalized attack ["76] on the lower court's decision does not preserve the specific arguments that might be subsumed within the broader one. Quite the opposite: a "generalized assertion of error" will not suffice to preserve anything. MMG Fin. Corp. v. Midwest Amusements Park, LLC, 630 F.3d 651, 659 (7th Cir. 2011); see also, e.g., Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005); Norman v. United States, 429 F.3d 1081, 1091 n.5 (Fed. Cir. 2005). Preservation would have little to recommend it if litigants could make nebulous, broadly worded arguments and trust appellate courts to work out the details once the opposing party points out the default. In much the same way, Plaintiffs did not preserve their predominance challenge by citing a few cases that happen to touch upon the concept. See maj. op. at 54. The traditional rule provides that citations to the "occasional case," without any fuller discussion, do not preserve an argument. Pike v. Guarino, 492 F.3d 61, 78 n.9 (1st Cir. 2007); see also Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001, 382 U.S. App. D.C. 78 (D.C. Cir. 2008) ("A fleeting statement in the parenthetical of a citation is no more sufficient to raise a claim than a cursory remark in a footnote[.]"). Similarly, "[m]ere notation of the applicable law, without any argumentation as to how it applies to [this] case, does not raise the issue of its application on appeal." Sou v. Gonzales, 450 F.3d 1, 6 n.11 (1st Cir. 2006) (internal quotation marks and citations omitted here and throughout); accord Johnson v. United States, 734 F.3d 352, 360 (4th Cir. 2013). For internal use only SDNY_GM_00056843 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-00 19667 EFTA_00167413 EFTA01295680 Page 48 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, "*; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 The majority's analysis casts an inappropriate role for an appellate court. Now, ['.77] a court must review each decision that an appellant cites and independently consider whether any part of it might undermine the district court's judgment for some reason that the appellant never raised. That concept reconceives the appellate courts' role, as those "courts do not sit as self-directed boards of legal inquiry and research." Nat'l Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 147 n.10, 131 S. Ct. 746, 178 L. Ed. 2d 667 (2011); see also Walker v. Prince George's Cnty., Md., 575 F.3d 426, 429 n." (4th Cir. 2009) ("Judges are not like pigs, hunting for truffles buried in briefs."). In addition, using the [1'926] majority's new rule, appellants may now launch late-in-the-day challenges to any part of a district court's certification decision so long as they serendipitously cited a case canvassing Rule 23 in their opening brief. This "preservation-by-citation" approach renders the waiver rule a nullity. D. In the end, the majority declares itself unwilling to exercise its "discretion" to "discard years of litigation on appeal because of an inartful brief." Maj. op. at 58. That approach seems to give pro se litigant treatment to a brief crafted by experienced class counsel -- counsel that has appeared in our court before. Surely it does not expect too much from veteran counsel to ask them to make their arguments straight up and square. All the more ("78] so when these counsel have been specifically cautioned about waiver on previous occasions. See, e.g., Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 972-73 (11th Cir. 2008) (holding that party represented by same counsel had "abandoned" claim by failing to raise it in his opening brief); see also Angles v. Dollar Tree Stores, Inc., 494 F. App'x 326, 330 n.6 (4th Cir. 2012) (same); cf. Bennett, 656 F.3d at 821 (holding that party represented by same counsel had "essentially abandoned" argument by making only a "conclusory challenge"); Anderson v. Cagle's, Inc., 488 F.3d 945, 959 (11th Cir. 2007) (same). The "purpose" of the preservation rule is also not served by overlooking Plaintiffs' waiver. See maj. op. at 57-58. The rule "ensures that the opposing party has an opportunity to reflect upon and respond in writing to the arguments that his adversary is raising." Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012); see also United States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006) (noting that late arguments are "unfair to the appellee"); Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983) ("In preparing briefs and arguments, an appellee is entitled to rely on the content of an appellant's brief for the scope of the issues appealed[.]"). Nucor never had a chance to address Plaintiffs' predominance arguments directly, as Plaintiffs waited until their reply brief to make them. Plaintiffs argued in their reply brief, for example, that no "heightened" predominance standard applies after Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551, 180 L. Ed. 2d 374 (2011), and the majority agrees, see maj. op. at 62. There might very well be reason to believe ("79] otherwise, though Nucor has never had a chance to make that argument. See, e.g., Andrey Spektor, The Death Knell of Issue Certification and Why That Matters After Wal-Mart v. Dukes, 26 St. Thomas L. Rev. 165, 172 (2014) (suggesting that Wal-Mart rendered it harder for issues to predominate). It must be cold comfort to Nucor, then, to hear that it was not "prejudice[d]" by these and other unanswerable arguments. Maj. op. at 58. For internal use only SDNY_GM_00056844 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 19668 EFTA_00167414 EFTA01295681 Page 49 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 E. The majority goes on to hold that the mandate rule barred the district court from examining Rule 23(b)(3) predominance. See maj. op. at 58-62. That view is factually and legally incorrect. The decision in the prior appeal in this case did not prevent the district court in any way from considering predominance because our prior decision did not say anything about predominance. In its original class certification decision in 2007, the district court held that Plaintiffs did not satisfy three of Rule 23(a)'s four requirements. It expressly declined to consider "the remaining requirements of ['92T] Rule 23(b)." J.A. 8997. On appeal, the parties' submissions focused solely on Rule 23(a). A majority of the Court then reviewed these "Rule 23(a) factors" and found them "satisfied." Brown v. Nucor Corp., 576 F.3d 149, 160 (4th Cir. 2009) ("Brown I"). The Brown I majority initially went on to hold, in a single sentence at the end r801 of the opinion, that "the requirements of [Rule] 23(b)(3) ha[d] also been satisfied for these claims." See Brown v. Nucor Corp., No. 08-1247, 576 F.3d 149 at 160 (4th Cir. Aug. 7, 2009). Nucor then petitioned for rehearing en banc, arguing, among other things, that neither the lower court nor the parties had previously analyzed the Rule 23(b) issue. See Nucor Pet. for Reh'g at 9, Brown I, 576 F.3d 149 (No. 08-1247), ECF No. 53. In response, the Brown I panel amended its opinion and excised any mention of Rule 23(b)(3). See Order, Brown v. Nucor Corp., No. 08-1247 (4th Cir. Oct. 8, 2009). One can easily discern why the opinion was amended: Brown I could not decide a fact- intensive issue -- that is, the predominance issue under Rule 23(b)(3) -- when the parties had not yet argued it and the district court had not yet addressed it. See Transamerica Leasing, Inc. v. Instit. of London Underwriters, 430 F.3d 1326, 1332 (11th Cir. 2005) (explaining that the mandate rule and the broader law of the case doctrine "cannot apply when the issue in question was outside the scope of the prior appeal"). In fact, up to that point, Plaintiffs had never even sought certification under Rule 23(b)(3); they sought to certify only a Rule 23(b)(2) class or, in the alternative, a so-called "hybrid" action. By removing any reference to Rule 23(b), Brown I left it to the district court to determine in the first instance whether Plaintiffs' class ("81] met that provision's requirements. The district court complied with both the letter and the spirit of Brown I, and it correctly took "into account [the] opinion and the circumstances it embrace[d]." United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993); see also, e.g., Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400, 1404-05 (9th Cir. 1993) (affirming district court's decision not to order accounting or damages, despite appellate court's instructions to "order an accounting and to award damages," where district court acted in line with the "spirit" of the mandate). An appellate mandate "does not reach questions which might have been decided but were not." United States v. Lentz, 524 F.3d 501, 528 (4th Cir. 2008). And "[w]hile a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues." Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168, 59 S. Ct. 777, 83 L. Ed. 1184 (1939). Simply put, the Brown I mandate did not apply to Rule 23(b)(3), nor could it. On remand after Brown I, the district court initially certified the two promotions classes under Rule 23(b)(3). The court later reconsidered, as it was entitled to do under Rule 23, which provides that "[a]n order that grants or denies class certification may be altered or amended before final judgment." Fed. R. Civ. P. 23(c)(1)(C); see also Fed. R. Civ. P. For internal use only SDNY_GM_00056845 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-00 19669 EFTA_00167415 EFTA01295682