Professional Documents
Culture Documents
No. 12-1610
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:08-cv-00540-MOC-DSC)
Argued:
Decided:
ARGUED:
Robert L. Wiggins, Jr., WIGGINS, CHILDS, QUINN &
PANTAZIS
PC,
Birmingham,
Alabama,
for
Appellants.
John Robbins Wester,
ROBINSON,
BRADSHAW
&
HINSON,
P.A.,
Charlotte,
North
Carolina,
for
Appellee.
ON
BRIEF:
Gerald L. Maatman, Jr., David Bennet Ross, Rebecca S. Bjork,
SEYFARTH SHAW LLP, New York, New York; David C. Wright, III,
Adam K. Doerr, ROBINSON, BRADSHAW & HINSON, P.A., Charlotte,
North Carolina, for Appellee.
this
sex
discrimination
and
equal
pay
action
filed
strike
Procedure
courts
class
12(c),
denial
complaint.
claims
12(f),
of
under
and
Federal
23(d)(1)(D),
Appellants
first
Rules
and
motion
to
the
of
Civil
district
amend
their
class
and
certification
issue,
we
reverse
remand
for
the
I.
Family Dollar operates a chain of over 7,000 stores in more
than forty states.
each run by a vice president, and then into districts, each run
by a district manager.
Family
2011).
Dollar
Stores,
Inc.,
637
F.3d
508,
510
Grace
(4th
Cir.
consisting
of
females
who
are,
or
have
been,
store
they are paid less than male store managers who perform the same
job, requiring the same skill, responsibility and effort, under
similar working conditions.
of
in
Title
VII,
centralized
willfully
and
asserts
control
violated
that
over
Title
Family
Dollar,
compensation
VII
by
of
paying
who
store
the
plaintiffs
and
other
similarly
situated
females
[]
wages
Count IV asserts
and equitable relief, back pay, attorneys fees and costs, and
punitive damages.
In
2008,
Appellants
filed
their
complaint
in
the
U.S.
Upon a
transferred
to
the
U.S.
District
Court
for
the
Western
has
now
affirmed
certification
of
such
nationwide
unable
23(b).
to
satisfy
the
class
action
requirements
in
Rule
discovery.
complaint
Bell
satisfied
Atlantic
the
Corp.
v.
pleading
standards
Twombly,
550
U.S.
as
established
544
(2007),
in
and
to
class
certification
discovery,
which
the
court
September
2011,
Family
Dollar
filed
motion
to
dismiss
which
was
issued
by
Supreme
Court
in
June
2011,
opposed
the
motion
to
dismiss
and
moved
the
the
proposed
amended
complaint
elaborate[s]
on
the
original
complaints
allegation
of
centralized
control
of
In the
between
male
Only
corporate
compensation.
exceptions
above
exceptions
disproportionally
Appellants
allege
percentage
performance
set
by
the
and
Vice
salary
the
range,
in
ratings.
of
and
they
of
an
headquarters
Regional
Store
Managers
Presidents
favor
existence
corporate
female
Managers
can
grant
grant
these
men.
annual
that
and
Second,
pay
raise
corresponds
Divisional
to
Vice
claim
built-in
headwinds
Third,
corporate-imposed
experience,
criteria
prior
which
pay,
have
quartile
disparate
rankings
impact.
and
other
Finally,
motion
to
In
granting
district
Family
court
granted
Dollars
Family
request
and
Dollars
dismissing
the
class
allegations, the district court first relied on Appellants preWal-Mart admission that their claims were virtually identical
to
those
court
asserted
reasoned
by
that
the
as
Wal-Mart
a
plaintiffs.
matter
of
law
Further,
under
the
Wal-Mart,
claims
on
court
held
that
the
basis.
Appellants
Additionally,
claims
fail
to
the
district
satisfy
the
discrimination
in
the
proposed
complaint
is
the
Second,
the
court
found
that
amendment
would
be
II.
We
granted
authorizes
granting
Appellants
courts
of
class-action
petition
appeals
to
under
review
Rule
23(f),
decisions
certification. 2
which
denying
Appellants
did
or
not
Appellate jurisdiction
576
F.3d
155
n.8
(4th
Cir.
2009)
([A]ppellants
Dollar
contends
we
lack
jurisdiction
to
Thus,
review
the
find
that
under
our
pendent
appellate
jurisdiction
See Rux
v. Republic of Sudan, 461 F.3d 461, 475 (4th Cir. 2006) (stating
that
pendent
exception
to
Pendent
the
appellate
scenarios:
with
appellate
final
jurisdiction,
judgment
jurisdiction
judicially
rule,
is
is
created
discretionary).
available
only
in
two
question
that
is
the
proper
subject
of
an
immediate
is
necessary
to
ensure
meaningful
review
of
an
may
inextricably
review
the
intertwined
leave-to-amend
methodology.
decision
Two
under
separate
the
rulings
underlie
both
the
appealable
and
the
non-appealable
the
appeals
from
both
orders
at
once.
Ealy
v.
(4th
Cir.
Mar.
14,
Myers
v.
Hertz
2013)
Corp.,
624
(alterations omitted)).
certification
based
(per
curiam,
F.3d
537,
unpublished)
553
(2d
(quoting
Cir.
2010)
on
the
allegations
of
the
original
of
Wal-Mart
decision
and
underlies
the
both
Because the
the
non-appealable
appealable
leave-to-amend
An issue
Berrey v. Asarco,
Here, as detailed
below, the proposed amended complaint includes specific companywide policies that allegedly cause a disparate impact--polices
not
specified
in
the
original
complaint
that
would
ensure
Thus, we
III.
Appellants raise three primary arguments on appeal.
First,
Appellants
conduct
urge
rigorous
that
analysis
the
of
district
the
court
certification
failed
issue
to
and
complaint
centralized
contains
control,
which
substantial
are
allegations
necessary
to
satisfy
of
the
review
district
courts
decision
to
deny
leave
to
liberally
allow
amendment
in
keeping
by
resting
its
with
the
spirit
of
decision
on
clearly
erroneous
12
Quince Orchard
Valley Citizens Assn, Inc. v. Hodel, 872 F.2d 75, 78 (4th Cir.
1989) (internal quotation marks omitted).
The district court denied Appellants request for leave to
amend
their
district
complaint
court
foreclosed
by
complaint,
the
for
determined
Wal-Mart,
two
that
primary
the
reasoning
proposed
complaint
reasons.
proposed
that
First,
the
amendment
was
like
pointed
the
to
original
subjective,
A review of
i.
In
Wal-Mart,
commonality
the
Supreme
requirement
under
Court
Rule
considered
23
for
class
whether
the
actions
was
favored
impact
plaintiffs
on
alleged
male
the
that
employees
female
Wal-Marts
and
had
employees.
failure
an
unlawful
Further,
the
curtail
its
to
holding
that
the
allegations
were
insufficient
to
upon
resolution.
common
contention
capable
of
classwide
Id. at
some glue holding the reasons for all those decisions together,
14
it
will
be
impossible
to
say
that
examination
of
all
class
Id.
(1) the
Id. at
2253 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 159
n.15 (1982)).
Wal-Marts
Id.
express
policy
forbidding
sex
discrimination;
vulnerable
to
gender
bias
but
which
lacked
nexus
to
because
it
employment practices.
was
policy
against
having
uniform
Id. at 2553-54.
Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988)).
the
case
before
it,
the
Court
noted
[o]ther
However, in
than
the
bare
1.5
million
claims
together.
Id.
Thus,
the
Court
Wal-Mart
[]
directs
exercise
common direction.
discretion
to
in
Id. at 2554.
examine
common
whether
all
with[]
some
way
at
issue
affected
the
class
in
uniform
manner.
the Implications of
corollary,
decision-making
discrimination
or
even
discretion
context,
where
is
Wal-Mart
company-wide
alleged
indicates
in
the
that
subjective
employment
if
another
it.
company-wide
strong
decision-makers
corporate
susceptible
culture
that
makes
gender
bias,
but
to
Wal-Marts
finding
it
lower-level
employees,
management personnel.
because
typically,
as
opposed
to
upper-level,
top-
exercising
discretion,
lower-level
high-level
personnel
exercise
discretion,
resulting
in
company.
the
corporate
hierarchy,
Consequently,
all
discretionary
the
employees
authority
in
exercised
the
by
the
commonality
requirement
than
17
the
discretion
ii.
Courts rulings on class certification since Wal-Mart bear
out the principles announced herein.
Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 489 (7th Cir.
2012) cert. denied, 133 S. Ct. 338 (U.S. 2012) (allowing Title
VII
class
certification
where
the
plaintiffs
pointed
to
two
company-wide
policy
was
not
maintained
in
uniform
manner); Bolden v. Walsh Constr. Co., 688 F.3d 893, 898 (7th
Cir.
2012)
where
the
(denying
only
class
certification
company-wide
policy
in
alleged
Title
was
VII
case
policy
of
In
commissions
with
teams;
brokers
could
decide
for
themselves whether to form teams; and, once the team was formed,
brokers
decide
which
other
brokers
18
to
admit.
Id.
The
plaintiffs
argued
that
this
national
policy
had
disparate
of
revenue
clients retained.
The
Seventh
branch-office
generated,
and
number
of
investments
and
Directors
and
Id. at 488-89.
Circuit
managers
noted
have
that
a
Complex
measure
of
discretion
with
Id. at
19
Id. at 490.
Bolden,
grant
the
of
Seventh
class
Circuit
reversed
certification.
the
There,
district
twelve
black
working
portable
sheds).
conditions
toilets
and
(for
example,
hangmans
derogatory
nooses
in
graffiti
toilets
or
break
Seventh
Circuit
in
noted
that
[t]he
sites
had
Id.
different
most
overtime
offers,
[and]
chastised
(or
failed
to
Id.
concessions
that
[d]ifferent
sites
20
had
materially
different
working
conditions[;]
most
superintendents
the[]
concerned
Id.
when
only
handful
of
superintendents
and
multiple
[local]
managers
exercise
independent
Id.
at
898.
Thus,
the
court
reversed
the
grant
of
class
certification.
As evident from our application of the two principles in
our discussion below, we believe the allegations in the proposed
amended complaint bear a closer resemblance to McReynolds.
iii.
As a preliminary matter, we note that the class allegations
in
the
original
complaint
were
21
insufficient
to
satisfy
the
commonality
complaint
standard
fails
stereotyping
managers
set
to
allege
regarding
were
forth
in
Wal-Mart,
that
the
compensation
exercised
in
because
the
subjectivity
and
paid
common
to
way
female
with
store
some
common
the
original
complaint
does
not
identify
the
Thus, we
to
consider
whether:
(1)
in
light
of
the
discretion
direction,
or
despite
the
discretion
alleged,
another
sex
discrimination
in
pay
because
it
believed
that
that
proposed
amended
individualized
the
company-wide
complaint
employment
were
decision-making--a
policies
limited
theory
which
to
it
in
the
subjective,
stated
was
proposed
amended
complaint
clearly
specifies
the
the
salary
range
policy
of
this
company-wide
sets
mandatory
minimum
To
and
According to Appellants, as a
salary
range
policy,
there
are
evaluating
and
experience,
prior
criteria
determining
that
because
pay,
have
they
compensation
quartile
rankings
disparate
impact
incorporate
discrimination.
and
based
and
on
on
prior
other
specific
womens
salaries
perpetuate
such
past
proposed
amended
complaint
concerning
the
company-wide
be
warranted.
However,
in
considering
whether
amended
policies
and
complaints
of
allegations
high-level
corporate
of
uniform
corporate
decision-making
are
in
Wal-Mart.
For
instance,
the
dual
pay
policy
that
is
in
place
in
all
Family
Dollar
Stores.
The
490.
Moreover,
proposed
the
amended
discretionary
complaint
decisions
are
made
by
set
forth
high-level
in
the
corporate
amended
complaint
explains
that
exceptions
to
centrally
Similarly, exceptions to
corporate-imposed
were
managers
and
raise
senior
headquarters.
percentages
vice
presidents,
made
again
by
at
regional
corporate
different
which
local
in
kind
supervisors
from
the
were
allegations
vested
with
in
Wal-Mart,
almost
in
absolute
Wal-Mart, 131 S.
Ct. at 2547.
Given
these
substantial
distinctions,
Wal-Mart
does
not
In
when
the
record
underlying
the
allegations
in
the
amendment
would
be
prejudicial
to
Family
Dollar.
In
motion
for
summary
judgment
was
almost
complete.
part,
is
attributable
to
Family
Dollar.
On
numerous
the
effect
litigation.
delay.
of
staying
Appellants
discovery,
ought
not
to
thereby
be
prolonging
penalized
for
the
this
That
their
opposition
to
Family
Dollars
motion
for
summary
judgment does not appear out of turn and cannot be grounds for
finding prejudice to Family Dollar.
With respect to the alleged new theory, review of the two
complaints indicates that Appellants do not allege an entirely
new theory in the amended complaint, but rather elaborate on one
of two allegations that were previously pled in a conclusory
fashion.
of
compensation
for
store
managers
at
the
corporate
the
the
nature
district
of
court
the
claimed
initially
centralized
held
that
the
control,
original
by
upper-level
requirement.
The
decision-makers
Appellants
to
filed
meet
a
the
proposed
facts
supporting
their
previous
assertion
much
the
of
centralized
that
Appellants
corporate control.
Family
Dollar
makes
of
fact
F.3d 219, 224 (4th Cir. 1996) (For judicial estoppel to apply,
the party sought to be estopped must be seeking to adopt a
position
that
litigation.
of
fact
is
inconsistent
with
stance
taken
in
prior
rather
than
(citation omitted)).
law
or
legal
theory.
(emphasis
added)
As
Appellants
contend,
the
proposed
amended
The
is
an
appropriate
mechanism
for
curing
numerous
198 (4th Cir. 2002) (also noting that [u]nder Rule 15(d), a
party may supplement its complaint even though the original
pleading is defective in its statement of a claim for relief or
defense.).
been
granted
leave
to
amend
to
cure
the
defect,
more
especially because this was the first time they sought to amend
their complaint.
Besides, although prejudice can result where a new legal
theory is alleged if it would entail additional discovery and
evidentiary
burdens
on
the
part
of
the
opposing
party,
this
Oroweat
Because
the
removed
from
Foods
Co.,
parties
trial,
Dollar is overstated.
785
were
the
F.2d
still
in
purported
503,
510
(4th
discovery,
undue
Johnson
Cir.
and
prejudice
1986).
many
steps
to
Family
29
IV.
The
district
Appellants
court
request
for
abused
leave
its
to
discretion
amend
their
in
denying
complaint
by
the
proposed
amended
complaint
satisfies
the
class
30
penalized
for
failing
amend
their
complaint
in
obtained
new
information
Additionally, the
about
the
corporate
include
in
the
proposed
amended
complaint.
Despite
the
the
district
court,
if
the
allegations
included
in
the
will
not
be
certified,
and
the
plaintiffs
case
will
fail.
The
convinced
dissent
that
the
nevertheless
class
sweeps
action
31
broadly
mechanism
is
and
being
bleakly,
used
to
Dissent
allows
at
35.
putative
However,
class
to
the
majority
re-plead
its
opinion
class
and
23.
Under
the
majoritys
holding,
the
ability
of
32
First as to the
131 S. Ct. 2541 (2011), and the majority opinion has drained it
of meaning.
the
decisions
are
majoritys
left
to
view,
the
Wal-Mart
complete
applies
discretion
only
of
where
low-level
Id.
discretion
95
to
presidents
and
400
district
managers,
That cannot
be.
The
fact
that
some
middle
managers
would
promote
from
within, and others recruit from without, as they are given the
discretion to do, does not, in the majoritys view, preclude
nationwide class action treatment.
they
are
perfectly
free
to
do,
would
hardly
seem
discriminatory, but it would be contrary to the commonality WalMart requires for a nationwide class action to proceed.
The majority responds to this point by citing the fact that
exceptions
to
corporate
salary
ranges
may
be
granted
by
by
middle
managers.
The
fact
that
exceptions
to
--
regional
managers,
by
definition,
do
not
make
as
these
because
if
it
believed
Wal-Mart
applied,
the
be promptly affirmed.
be
certified.
But
the
commonality
Wal-Mart
insists
is
the
policy.
majority
purports
to
find
it
in
some
centralized
experience
or
performance
as
factors
in
compensation
sinister.
is
not
A policy
that the fact that a policy may have some statistical disparity
nationwide
does
nothing
to
dispel
the
fact
that
in
many
policies
cited
by
plaintiffs
are
not
built-in
centralized
delegations
of
discretion
such
as
these
are
erroneous,
never end.
then
class
action
litigation
will
almost
its discretion, maj. op. at 30, the majority holds its factual
findings clearly erroneous as well.
Id. at 26.
The district
of
forthrightness
and
fair
dealing
that
the
district
court had every right to expect from the litigants before it.
It was also every bit as irreconcilable with the Supreme Courts
decision in Wal-Mart as the original, making denial of leave
fully justifiable on futility grounds.
In sum, the district court has been brought up short and
found to have abused its discretion for doing nothing more than
faithfully following a Supreme Court decision and for attempting
to
ensure
small
measure
Courts
of
candor
and
consistency
in
the
preeminent
place
in
hierarchical
judicial
I.
Federal
Rule
of
Civil
Procedure
15(a)(2),
which
governs
The Supreme
Court
reason
has
accordingly
required
some
justifying
in
Foman
to
amend
is
appropriate
when
at
least
one
Denying
of
three
(internal
follow,
it
quotation
is
marks
abundantly
omitted).
clear
that
For
the
the
reasons
district
court
that
was
37
II.
A.
As
to
the
first
ground,
prejudicial
will
often
be
[w]hether
determined
by
an
the
amendment
nature
of
is
the
facts
not
already
considered
by
the
defendant.
Id.
(quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th
Cir. 1986)) (alterations omitted).
majority
complaint,
original
glossing
and
overstated.
two
acts
over
casually
as
its
cheerleader
gross
dismissing
complaints
makes
Id.
the
for
the
incompatibility
threat
of
amended
with
prejudice
the
as
recognition
of
the
night-and-day
38
1.
At its core, the original complaint attacks Family Dollar
for
maintaining
decision-making
compensation,
supposedly
structure
which
subjective
for
and
determining
plaintiffs
alleged
decentralized
store
manager
produced
illegal
A crucial paragraph,
according
must
necessarily
have
occurred
outside
the
corporations core.
if
rooted
officer
in
or
unfavorable
the
group
prejudicial
of
predilections
officers
consequences
for
--
could
plaintiffs
of
result
only
particular
in
if
generally
implemented
through objective standards, such that the lower-level decisionmakers who determine individual store managers salaries have
little personal power to deviate from the commands dictated by
corporate
headquarters.
But
plaintiffs
complaint
was
that
gender
in
allegations
stereotyping.
plaintiffs
counsel
In
against
of
a
permissive
previous
Family
subjectivity
suit
Dollar,
brought
for
by
instance,
Br.
disparities
in
at
pay,
4)
alleged
Family
that
Dollar]
[d]espite
continues
[gender-based
to
allow
its
40
Inc., No. 7:04-cv-00553-VEH (N.D. Ala. Nov. 17, 2006), ECF No.
235.
Plaintiffs
complaint
by
seek
to
clinging
avoid
to
the
thrust
single
of
sentence
their
original
repeated
(with
that
[d]efendant
engages
in
centralized
control
of
by
virtue
of
their
mere
existence.
Plaintiffs
directive
comes
unremarkable.
from
Surely
some
corporate
corporations
headquarters
of
national
is
entirely
scope
cannot
At the
of
management
and
question,
therefore,
is
compensation
the
result
how
original
in
much
budgetary
centralized
complaint
41
actually
chaos.
control
alleges
The
of
with
amended
complaint
is
not,
as
the
majority
contends,
It is
system
criteria.
requires
pay
to
be
set
by
uniform,
company-wide
that
plaintiffs
had
earlier
insisted
42
was
the
As
for
implementation
plaintiffs
of
Family
allegations
Dollars
concerning
compensation
the
criteria,
the
Nor is the
in
the
The
demon
in
decisionmaking.
the
headquarters.
amended
Id.
complaint
is
34.
The
demons
controlling
corporate
Id. 35.
3.
the
majority
contends.
Instead,
They
describe
two
43
it
is
manifestly,
different
companies.
By
transforming
excessively
into
an
their
claims
subjective
intricate
and
attack
from
frontal
decentralized
on
assault
compensation
purportedly
on
an
system
objective
and
marks omitted).
The majority breezily dismisses these concerns, asserting
in conclusory terms that [t]he legal theory remains the same.
Maj. op. at 28.
heed
to
the
opinion
of
the
district
judge,
who
was
better
The
new
complaint,
by
virtue
of
its
novel
Laber, 438
the
district
court
was
correct
to
conclude
that
acted
well
within
its
discretion
by
The
denying
any
Laber,
discovery
has
occurred
is
unlikely
to
be
likely
it
defendant.
is
Id.;
that
see
the
also
amendment
United
will
States
ex
prejudice
rel.
the
Nathan
v.
Takeda Pharm. N. Am., Inc., 707 F.3d 451, 461 (4th Cir. 2013)
(affirming denial of motion for leave to amend in light, inter
alia,
of
two-year
gap
between
filing
of
complaint
and
for
leave
to
amend
where
significant
amount
of
plaintiffs
attempt
to
amend
their
complaint
came
three years after the case was initially filed -- and only when
Family
dismiss
Dollar
appeared
and/or
strike
poised
the
to
succeed
original
45
on
its
motion
complaints
to
class
allegations.
Moreover,
the
district
judge
observed
that
that
any
J.A. 414-15.
additional
prejudicial to defendant.
discovery
Id. at 415.
would
be
hold that:
[A]llowing plaintiffs to amend the complaint would
prejudice defendant.
Since the filing of the
complaint three years ago, the parties have pursued
discovery . . . and have attempted to mediate claims
under the original complaint.
Here, plaintiffs chose
not to file their proposed amended complaint until the
briefing on defendants motion to dismiss was nearly
complete . . . . Plaintiffs wish to pursue extensive
discovery to support and clarify their new theories,
which will require the parties to re-open and conduct
new expert discovery based on plaintiffs changed
version of the facts.
Id. at 417-18.
Plaintiffs attempt to blame the three-year delay in filing
for leave to amend on the various motions and objections that
were
exchanged
discovery.
between
the
parties
during
the
course
of
this
sort
of
pretrial
motion
exchange.
The
majoritys
46
period
for
motions
for
leave
to
amend.
Such
protracted
new
rule
established
by
todays
opinion
endorses
filing
Plaintiffs
counsel
have
extensive
experience
they have sued Family Dollar over labor and employment matters
approximately 15 times since 2001.
J.A. 417.
changed
since
the
time
of
these
many
prior
suits,
majority
inexplicably
focuses
on
the
fact
that
See
fluctuating
class
action
theories.
If
the
identifying
prejudice
in
class
certification
proceedings,
its
characterizations.
It
was
entirely
proper
for
the
would
impermissibly
prejudice
Family
Dollar.
It
was
altogether sound for the trial court to hold that Family Dollar
should not be forced to defend a new suit three years after the
original complaint was filed.
v. Virtual City Vision, Inc., 650 F.3d 423, 439-41 (4th Cir.
2011) (affirming on prejudice grounds denial of motion for leave
where
amendment
was
filed
at
the
eleventh
hour,
would
III.
As to why plaintiffs wanted to undertake such an extensive
overhaul of their complaint in the first place, the majority
opinion points to the Supreme Courts decision in Wal-Mart, 131
S. Ct. 2541.
Wal-Mart
with
respect
to
the
final
two
grounds
on
which
district court may deny a motion for leave to amend a pleading - the lack of good faith, to which I now turn, and futility,
discussed in Part IV.
situation
is
precisely
what
occurred
here.
Plaintiffs
prior
representations
to
actually
count
for
In consenting to a transfer of
Mart, Inc., 509 F.3d 1168 (9th Cir. 2007)) (emphasis added).
Later in the litigation, plaintiffs argued that [t]he evidence
is expected to show that this case is more like . . . the Ninth
Circuits
decision
defendant.
Then
after
in
Wal-Mart
the
cases
cited
by
S.A. 527.
plaintiffs
the
Supreme
adopted
Court
before
this
court,
dramatically
reversed
than
the
different
Ninth
Circuits
for
instance,
stance
plaintiffs
In their
contend
Mart
decision
was
limited
to
localized
decisionmaking
within
original
and
amended
complaints.
The
court
He later elaborated:
It
bias,
subjectivity
and
stereotyping.
Compl.
22
(emphasis added).
To
be
sure,
counsel
must
enjoy
latitude
in
amending
incorporate
filing.
factual
material
uncovered
since
the
original
the
instant
plaintiffs
do
not
merely
present
new
Instead, they
the
amended
complaint
bears
no
more
than
is
not
merely
clerical
or
nominal
The proposed
corrective.
It
well
as
his
legal
theory)
(internal
quotation
marks
omitted).
This
is
more
than
some
commonplace
doctrinal
point.
they
purport
to
describe.
52
When
corporation
is
reinvented
from
decision-making
one
to
employing
one
with
decentralized,
rigid,
entirely
subjective
centralized
It is a
maintain
exist.
some
concrete
relationship
To do this, law
with
facts
as
they
912 F.2d 291, 296-97 (9th Cir. 1990) (Although leave to amend
should
be
liberally
granted,
the
amended
complaint
may
only
plaintiffs
permitted
to
substitute
contradictory
their
claims,
they
could
hold
complaint
deficient
because
53
defendants
hostage
by
alleged
only
But
IV.
Finally,
motion
for
futility.
2006).
fails
the
district
leave
to
amend
courts
was
rejection
warranted
on
of
a
plaintiffs
third
ground:
state
claim
under
the
applicable
rules
and
of
Inc.,
quotation
the
637
marks
federal
F.3d
462,
omitted).
rules.
471
(4th
Wal-Mart
Katyle
v.
Cir.
2011)
itself
Penn
Natl
(internal
expounded
the
Id. at 2551.
Id.
Thus, [w]hat
classwide
drive
the
proceeding
resolution
to
of
generate
the
common
answers
apt
to
litigation.
Id.
(internal
to
discrimination
these
principles
employment
claims, the Wal-Mart Court made clear that [w]ithout some glue
holding
the
decisions
alleged
together,
reasons
it
for
will
[each
be
of
the
impossible
challenged]
to
say
that
common
disfavored.
answer
to
Id. at 2552.
the
crucial
question
why
was
Co.
of
(alteration
Sw.
in
v.
Falcon,
original).
457
For
55
two
147,
reasons,
159
n.15
(1982))
plaintiffs
have
failed
to
amended
satisfy
complaint
this
fail
standard.
on
their
First,
face.
the
claims
Second,
even
in
the
if
the
be
incapable
of
supporting
such
claims
on
classwide
basis.
1.
In light of the stunning similarities between this case and
Wal-Mart, the allegations in the amended complaint -- just as in
the
original
outset.
In
complaint
both
--
cases,
are
legally
defendants
insufficient
are
large
from
the
corporations
From Wal-
Mart:
Petitioner WalMart is the Nations largest
private employer.
It operates four types of retail
stores throughout the country . . . . Those stores are
divided into seven nationwide divisions, which in turn
comprise 41 regions of 80 to 85 stores apiece.
Each
store has between 40 and 53 separate departments and
80 to 500 staff positions. In all, WalMart operates
approximately 3,400 stores and employs more than one
million people.
131 S. Ct. at 2547.
Stores, Inc. (In re Family Dollar FLSA Litig.), 637 F.3d 508,
510
(4th
Cir.
2011)).
There
are
56
approximately
four
hundred
both
cases,
the
proposed
employees.
as
employees
improperly
and
many
of
decision
female
encompassed
thousands
promotion
retail-level,
class
former
gender-related.
lawsuit,
representing
the
1.5
million
members
of
the
Pay
Act
of
1963
widespread
and
pervasive
gender
to
redress
the
discrimination
defendants
in
employment
opportunities.).
And most significantly, in both cases, all of the contested
employment actions derived from the same type of decision-making
structure.
and
enforced
including
by
corporate
preestablished
57
oversight,
ranges
and
with
such
certain
that
the
that
company
provide
maintains
some
centralized
constraint
on
corporate
the
degree
Wal-Mart
2004).
that
Stores,
Inc.,
222
F.R.D.
137,
152-53
of
Dukes
(N.D.
Cal.
positions
similarly
across
all
to
all
types
of
in-store
WalMart
salaried
stores,
management
in
that
the
with
adjustments
allowed
for
profit
Id. at 148.
warrant
finding
of
prejudice.
The
fact
that
certain
allegations are new, however, does not indicate that they are
viable.
corporate
decision-making
described in Wal-Mart.
structure
parallel
to
that
remain[s]
the
only
58
source
of
discrimination
alleged.
J.A.
417.
That
pattern
of
dispersed
managerial
Compl.
51,
even
if
we
were
to
accept
these
dubious
be
futile.
employment
In
practice
an
effort
to
responsible
identify
for
the
specific
alleged
pay
omitted),
plaintiffs
corporate policies.
(and
the
majority)
point
13-14;
intrinsically
Am.
Compl.
imparts
administering it.
four
Br.
to
35.
discretion
salary
to
those
Appellants
range,
however,
charged
with
discretion
in
placing
J.A. 419.
Store
Managers
within
the
treatment.
131
S.
Ct.
at
2547
(denying
class
If the
be
granted
Presidents,
are
by
Regional
Managers
granted
and
Divisional
disproportionately
to
Vice
males.
By definition,
As the
Id.
at 417, 419.
Third,
determining
experience
women.
plaintiffs
argue
compensation
and
performance
that
--
defendants
criteria
evaluations
which
--
criteria
for
include
prior
disparately
impact
The use of
60
Plaintiffs
do
not
allege,
moreover,
that
these
criteria
discretionary
with
setting
equivalent
decisions
store
of
of
manager
judicial
those
middle
salaries.
It
managers
is
the
charged
business
totality-of-the-circumstances
test,
rigid
salaries
headquarters,
both
for
because
it
store
manager
would
strip
at
the
corporate
system
of
on
what
determination
does
Wal-Mart,
S.
131
defendants
use
is
not
Ct.
of
fundamentally
satisfy
at
2547
objective
the
commonality
(denying
criteria
discretionary
requirement.
certification
in
making
despite
promotion
decisions).
Fourth, plaintiffs complain that corporate policies require
that store managers promoted from within be paid less than those
who are hired laterally.
54.
as
house.
not
store
managers
are
disproportionately
allege,
however,
that
either
61
method
of
promoted
in-
Plaintiffs do
selection
is
external
impact
route
that
of
arises
store
manager
selection,
will
necessarily
be
any
the
disparate
result
of
the
any
existence
of
disparate
impact
Consequently,
resulting
from
this
to
persuade
an
employee
to
switch
companies.
Furthermore, the Supreme Court has noted that the mere fact that
a
business
practice
produces
some
statistical
disparity
is,
Id. at 2555-56.
at issue here, for example, some middle managers will hire women
from outside, or promote men from within.
62
the
results
will
vary
by
district
and
by
In
region;
to
an
unsurprising.
delegated
Family
cabined
discretion
should
be
Companies
must
rely
on
delegated
practicality,
Dollar
to
for
corporate
company
micromanage
centralized policies.
Dollars
of
discretion.
discretion.
sheer
allegation
store
as
extensive
manager
in
scope
compensation
as
via
headquarters
could
afford
to
dictate
the
Some
See
63
of
management
facts
--
to
on
the
attend
ground
to
the
than
the
details
members
of
store
of
top
manager
Trust,
487
U.S.
customary
and
quite
977,
990
(1988)
reasonable
(noting
simply
to
that
it
delegate
may
be
employment
decisions to those employees who are most familiar with the jobs
to
be
filled
Plaintiffs
and
with
inventive
economic
and
national
corporation.
the
candidates
pleadings
managerial
simply
realities
[L]ocal
for
those
cannot
associated
discretion
jobs).
disguise
the
with
running
cannot
support
Bolden v. Walsh
The presence of
for
class
action
treatment
because,
among
other
contention
that
an
exercise
of
discretion
J.A. 419.
results
in
Wal-Mart, of
course,
found
challenges
based
on
such
decision-making
at
aspect
2555-56.
of
the
The
district
futility
court
analysis
when
nicely
it
131 S.
summarized
concluded
this
that
the
but
even
the
allegations
in
the
amended
complaint
pointing
to
any
uniform
company-wide
policy
that
J.A. 417.
2.
Plaintiffs
amended
complaint
is
deficient
for
an
case
made
clear,
pleading standard.
Rule
23
does
not
As the Court in
set
forth
mere
and
other
similar
cases
against
defendant
in
other
in
any
corporation
would
select
sex-neutral,
actionable
disparity
at
all.
131
S.
Ct.
at
2554.
Id. at 2555.
discretionary
activity
might
one
day
be
Id.
to
which
deviations
approximately
they
above
peg
what
at
$2,500
per
twenty-two
would
be
to
year
between
twenty-three
expected
in
the
2008
and
standard
absence
of
this
lengthy
enumeration
of
controlled
Id. 24-27.
elements
itself
to
draw
statistical data.
particularized
conclusions
from
national
company-wide
policy
of
discrimination
is
implemented
by
Id.
would
not
imply
that
all
25
superintendents
behaved
v.
Nucor
Corp.,
bottom-line
demonstrate
656
F.3d
802,
[statistical]
that
any
815-16
analysis
disparate
(8th
Cir.
is
insufficient
treatment
or
2011)
([A]
disparate
to
impact
nationwide
nondiscriminatory
data
conditions
fails
that
to
may
account
have
for
produced
various
divergent
131
Wal-Mart,
suffers
from
131
S.
the
Ct.
same
at
2556-57.
fatal
flaw
as
The
the
amended
original,
rendering
amendment
on
the
that
district
ground
an
courts
entirely
68
decision
proper
to
refuse
exercise
of
the
its
discretion.
2557
--
the
entire
class
action
fails
for
lack
of
bears
structure
certain
at
reemphasis
issue
here
centralized
that
--
the
in
policies
employment
which
but
also
decision-making
business
imparts
articulates
to
mid-level
Smith, Inc., 672 F.3d 482, 488 (7th Cir. 2012) (noting that
large corporations may grant discretion to local managers as a
matter of necessity).
and
circumstances
of
each
decentralized
decision-
majority
might
be
fails
even
legally
to
suggest
suspect.
why
Indeed,
the
the
challenged
corporate
the
purported
bonuses
for
lateral
hires,
and
the
exposes
large
swath
of
companies
to
class-action
These
policies
do,
however,
share
one
relevant
recognized
discrepancies
through
the
gravamen
of
the
and
blunderbuss
that
difficulty
individual
of
decision
class
is
that
that
under
the
action
of
for
discretion
litigation.
nationwide
circumstances
accounting
exercises
of
classes
The
face
discussed,
[a]
party
answers
nightmares
unwieldy
to
common
encountered
pieces
of
questions).
by
district
litigation,
no
Given
judges
other
the
managerial
assigned
conclusion
these
would
be
possible. 2
It
is
also
important
to
note
that
denial
of
nationwide
J.A. 420.
thus
more
manageable
--
groups,
such
as
district-level
class
certification
but
suggesting
that
smaller
to bite off more than they can chew thus far, smaller morsels
may prove more palatable in the end.
V.
In
holding
discretionary
Wal-Mart
decisions
of
inapplicable
middle
to
managers,
the
the
manifold
majority
has
The
It impairs the
First, it prolongs
It requires companies to
realities
of
modern
72
national
corporations.
The
mores the pity, because in many places and under many managers,
the chief beneficiary would have been the plaintiff class.
Second, the majority pulls up curbside and dumps on the
district
court
litigation.
an
utterly
unwieldy,
unmanageable
piece
of
and it is also worth the observation that the majority will not
have to deal with the many problems it has wrought.
We use an
judge
is
best
situated
to
make
the
The
type
of
whether
congenial
or
apply
our
not,
was
written
precisely
for
decisions
and
precedents.
The
Supreme
case
played
fast
and
loose
with
the
The plaintiffs in
district
court,
one.
They
assumed
that
the
allegations
in
was being gamed and moved to instill respect for the integrity
of the process over which it had the duty to preside.
That we
74