                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-1610


LUANNA SCOTT; SHUNDERIA GARLINGTON; RUTH BETH; WENDY BEVIS;
KATHERINE    BRACEY;    RUBY    BRADY;    MARIE    ALICE     BROCKWAY;
VICKIE CLUTTER;   DIANE   CONAWAY;    JUDY   CORROW;    TRACI   DAVIS;
CAROL DINOLFO; REBECCA DIXON; PAMELA EWALT; NANCY FEHLING;
TERESA FLEMING; IRENE GRACE; DOROTHY HARSON; CHARLENE HAZELTON;
SHELLY    HUGHES;   CHRISTAL    J.    JOSLYN;    ADA     L.   KENNEDY;
NEITA LAFRENIERE;     MARGIE      A.    LITTLE;      CAROL     MARTIN;
LEANNE MAXWELL; WANDA MAYFIELD; DORIS MOODY; VANESSA L. PEEPLES;
VERONICA PERRY-PREDDIE; RUTH ELLEN PHELPS; SHEILA PIPPIN;
LANA RADOSH; MICHELLE RODGERS; VADA ROSE; VICKEY JO SCRIVWER;
LINDA R. SILVA; SHARON SIPES; NANCY SMITH; MARIE E. SPELLISSY;
SYLVIA   C.   TENORIO;   JUDY    TIDRICK;   BEVERLY     L.   TRIPLETT;
CAROL SUE VANFLEET;      DEBBIE      VASQUEZ;      CLAIRE       WHITE;
BONNIE WILLIAMS; CINDY MARIE ZIMBRICH,

                 Plaintiffs - Appellants,

           and

LINDA L. FULMER; JEAN MACQUARRIE; HELEN ZIMMERMAN,

                 Plaintiffs,

           v.

FAMILY DOLLAR STORES, INC.,

                 Defendant - Appellee.



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:   May 14, 2013                      Decided:   October 16, 2013
Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.


Affirmed in part, reversed in part, and remanded by published
opinion.   Judge Gregory wrote the majority opinion, in which
Judge Keenan joined.   Judge Keenan wrote a concurring opinion.
Judge Wilkinson wrote a dissenting opinion.


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.




                                2
GREGORY, Circuit Judge:

      In    this     sex    discrimination       and     equal    pay    action       filed

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e, and Section 216(b) of the Equal Pay Act of 1963, 29

U.S.C. § 206(d), Appellants appeal the district court’s grant of

Family Dollar Stores, Inc.’s (“Family Dollar”) motion to dismiss

and/or      strike    class     claims     under        Federal    Rules       of     Civil

Procedure      12(c),       12(f),   and      23(d)(1)(D),        and    the    district

court’s     denial     of    Appellants’        first    motion     to    amend       their

complaint.      We find that the district court’s denial of leave to

amend the complaint was based on an erroneous interpretation of

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and the

denial was thus an abuse of discretion.                     Without resolving the

class      certification      issue,     we     reverse     and     remand      for    the

district court to consider whether, based on our interpretation

of Wal-Mart, the proposed amended complaint satisfies the class

certification requirements of Federal Rule of Civil Procedure

23.



                                           I.

      Family Dollar operates a chain of over 7,000 stores in more

than forty states.           Its operations are divided “into 95 regions,

each run by a vice president, and then into districts, each run

by a district manager.           A district, which can vary in size from

                                           3
a single city to an area within multiple States, includes 10 to

30 retail stores, each run by a salaried store manager.”                             Grace

v.   Family    Dollar    Stores,       Inc.,      637   F.3d    508,    510   (4th    Cir.

2011).    Family Dollar has approximately 400 district managers.

      Appellants are fifty-one named plaintiffs and a putative

class    consisting      of     females       who    are,   or       have   been,    store

managers of Family Dollar stores.                    Appellants primarily allege

they are paid less than male store managers who perform the same

job, requiring the same skill, responsibility and effort, under

similar working conditions.                 In relevant part, Count I of their

complaint asserts a disparate impact claim predicated on the

following assertions:

        Defendant   engages   in    centralized   control   of
        compensation for store managers at the corporate level
        of its operations.
        . . .

        Defendant’s pay decisions and/or system includes
        subjectivity and gender stereotyping that causes
        disparate impact to compensation paid to female store
        managers.   Plaintiffs are aware, at this time, of no
        other criteria which causes such disparate impact
        other than gender bias, subjectivity and stereotyping.
        Plaintiffs are unaware, at this time, of any other
        specific criteria that are capable of separation and
        job relatedness.

Count II alleges a pattern-or-practice of disparate treatment in

violation     of    Title     VII,    and    asserts    that     Family     Dollar,    who

“engages      in    centralized       control       over    compensation       of    store

managers,”         “willfully        violated       Title      VII    by    paying    the



                                              4
plaintiffs        and     other      similarly     situated       females      []     wages

[unequal] to . . . similarly situated males.”                       Count IV asserts

a violation of the Equal Pay Act.                    Appellants seek injunctive

and equitable relief, back pay, attorneys’ fees and costs, and

punitive damages.

       In   2008,       Appellants      filed     their    complaint      in    the   U.S.

District Court for the Northern District of Alabama.                                Upon a

grant of Family Dollar’s motion to dismiss or transfer, the case

was    transferred        to   the    U.S.    District      Court   for   the       Western

District of North Carolina.                  In opposing the motion to dismiss

but consenting to transfer, Appellants cited Dukes v. Wal-Mart,

Inc., 509 F.3d 1168 (9th Cir. 2007) on reh’g en banc sub nom.

603 F.3d 571 (9th Cir. 2010), pointing out that “[t]he Ninth

Circuit     has    now    affirmed      certification        of   such    a    nationwide

class having virtually identical claims of sex discrimination in

pay to those brought in this case.”                       As is relevant here, the

Ninth Circuit’s Dukes decision was subsequently reversed by the

Supreme Court in Wal-Mart, 131 S. Ct. 2541.

       Following the transfer, Family Dollar filed a motion for

partial judgment on the pleadings, arguing that Appellants would

be    unable   to       satisfy   the    class     action    requirements        in    Rule

23(b).      The filing of this motion had the effect of staying

discovery.        The district court denied Family Dollar’s motion

without prejudice, holding that the class allegations in the

                                              5
complaint         satisfied        the   pleading       standards       as   established        in

Bell       Atlantic       Corp.     v.    Twombly,       550     U.S.    544      (2007),     and

Ashcroft v. Iqbal, 556 U.S. 662 (2007).                        The court further found

that a fully developed evidentiary record was necessary to make

findings as to class certification.

       In July 2010, Family Dollar moved for summary judgment, but

the court stayed the motion pending the completion of discovery.

In August 2010, Family Dollar moved for a protective order with

respect          to     class     certification         discovery,       which     the       court

denied.          From January to July 2011, the parties unsuccessfully

tried to resolve their dispute through mediation.

       Following re-assignment of the case to a different judge,

in   September           2011,    Family       Dollar    filed    a     motion     to    dismiss

and/or strike the class allegations pursuant to Rules 12(c),

12(f), and Rule 23(d)(1)(D).                      Family Dollar argued that Wal-

Mart,      which        was     issued   by    the   Supreme      Court      in    June      2011,

foreclosed Appellants’ class allegations and the monetary relief

sought in the complaint.

       Appellants             opposed    the    motion    to   dismiss       and    moved      the

court for leave to file their first amended complaint, 1 arguing

that       the        proposed     amended      complaint      “elaborate[s]”           on     the

       1
       Family Dollar’s motion to dismiss and Appellants’ motion
for leave to amend the complaint were filed before the deadlines
to end class certification discovery and to file a motion to
certify the class.


                                                 6
original     complaint’s         allegation       of        “centralized          control     of

compensation for store managers at the corporate level.”                                 In the

proposed amended complaint, Appellants allege and challenge at

least four company-wide policies.                 First, Appellants assert the

existence of a mandatory salary range for Store Managers set

annually by the corporate headquarters, which locks in prior

disparities      between          male      and        female            Store      Managers’

compensation.       Only        corporate        Vice        Presidents           can      grant

exceptions     above     the      salary      range,         and        they     grant     these

exceptions     disproportionally            in     favor           of     men.           Second,

Appellants     allege      the     existence           of     an    annual        pay     raise

percentage    set   by     corporate       headquarters            that    corresponds        to

performance    ratings.           Regional       Managers          and    Divisional        Vice

Presidents grant exceptions above the pay raise percentage, and

“significantly greater” exceptions are granted to men.                                   Third,

Appellants     claim       a     “built-in        headwinds”             corporate-imposed

compensation criteria for Store Managers that takes into account

“prior     experience,         prior   pay,      quartile          rankings        and     other

specific    criteria     which     have     a    disparate          impact.”         Finally,

Appellants allege the existence of a dual-system of compensation

structured to pay less to persons promoted to store managers

than to persons hired (from outside the company) to the same

position, where “women are disproportionately promoted to Store



                                            7
Manager [positions,] while men are disproportionately hired into

such jobs.”

      The    district      court       granted          Family       Dollar’s    motion      to

dismiss, but denied Appellants’ motion for leave to amend.                                   In

granting     Family      Dollar’s          request       and     dismissing      the      class

allegations, the district court first relied on Appellants’ pre-

Wal-Mart admission that their claims were “virtually identical”

to   those   asserted      by    the       Wal-Mart      plaintiffs.          Further,      the

court   reasoned       that     “as        a   matter     of     law”    under      Wal-Mart,

Appellants cannot satisfy the Rule 23(a) commonality requirement

because they allege they were discriminated against on the basis

of their gender as a result of “subjective decisions made at the

local store levels.”                 The court dismissed the Equal Pay Act

class   claims    on     the    same       basis.        Additionally,        the    district

court     held    that     Appellants’               claims     fail     to   satisfy       the

predominance requirement in Rule 23(b)(3).

      In denying Appellants’ motion for leave to amend, the court

first held that amendment was futile because the only source of

alleged      discrimination           in       the     proposed        complaint     is     the

“discretionary pay of managers,” which are “foreclosed” under

Wal-Mart.        Second,       the    court      found        that   amendment      would    be

prejudicial to Family Dollar because the original complaint was

filed over three years prior, and the new complaint alleges a

“new theory” only in an attempt to avoid Wal-Mart.

                                                8
     Appellants timely petitioned this Court under Federal Rule

of Civil Procedure 23(f) for interlocutory appeal of the class

certification decision.



                                          II.

     We    granted     Appellants’     petition      under    Rule    23(f),    which

authorizes      courts    of    appeals     to   review    decisions    denying   or

granting     class-action        certification. 2          Appellants     did     not

petition us directly for interlocutory review of the decision

denying leave to amend the complaint.                     Appellate jurisdiction

pursuant to Rule 23(f)’s interlocutory provision lies only where

the subject matter of the appeal is the grant or denial of class

certification.         Fed. R. Civ. Pro. 23(f); see Brown v. Nucor

Corp.,    576   F.3d     149,   155   n.8    (4th   Cir.   2009)     (“[A]ppellants

     2
       Class certification is typically pursued under Rule 23(c),
which provides that “[a]t an early practicable time after a
person sues or is sued as a class representative, the court must
determine by order whether to certify the action as a class
action.” Id. 23(c). Family Dollar filed its motion to dismiss
pursuant to Rule 12(c), 12(f), and 23(d)(1)(D)--rules not
expressly within Rule 23(f)’s jurisdictional purview.    See Fed.
R. Civ. Pro. 23(f) advisory comm. note (1998). Nonetheless, we
have jurisdiction to review the district court’s grant of Family
Dollar’s motion to dismiss or strike the class allegations
because the district court’s ruling is the functional equivalent
of denying a motion to certify the case as a class action. See
In re Bemis Co., Inc., 279 F.3d 419, 421 (7th Cir. 2002)
(holding that the rejection of the position taken in the answer
that the case could not proceed as a class action is the
“functional equivalent of denying a motion to certify a case as
a class action”). Family Dollar does not dispute the basis for
asserting jurisdiction over the class certification decision.


                                            9
cannot appeal a discovery order under [Rule] 23(f).”).                                         Thus,

Family      Dollar       contends        we    lack     jurisdiction         to    review       the

district court’s denial of Appellants’ motion for leave to amend

their complaint.

       We    find       that     under    our     pendent       appellate         jurisdiction

jurisprudence, we have jurisdiction and exercise our discretion

to review the denial of the motion for leave to amend.                                    See Rux

v. Republic of Sudan, 461 F.3d 461, 475 (4th Cir. 2006) (stating

that     pendent        appellate        jurisdiction,          a     judicially          created

exception         to    the     final         judgment      rule,     is    discretionary).

Pendent          appellate      jurisdiction           is    available          only     in      two

scenarios:          “(1) when an issue is ‘inextricably intertwined’

with    a    question      that    is     the     proper     subject       of     an    immediate

appeal; or (2) when review of a jurisdictionally insufficient

issue       is     ‘necessary       to        ensure     meaningful         review’       of     an

immediately appealable issue.”                       Id. (quoting Swint v. Chambers

Cnty. Comm’n, 514 U.S. 35, 50–51 (1995)).

       We    may       review     the         leave-to-amend        decision           under    the

“inextricably          intertwined”           methodology.          Two    separate       rulings

are “inextricably intertwined” if “the ‘same specific question’

will     ‘underlie        both     the        appealable      and     the       non-appealable

order,’ such that resolution of the question will necessarily

resolve      the       appeals     from       both     orders    at       once.”         Ealy    v.

Pinkerton Gov’t Servs., Inc., No. 12-1252, 2013 WL 980035, at *8

                                                 10
(4th    Cir.   Mar.    14,    2013)       (per      curiam,   unpublished)          (quoting

Myers    v.    Hertz       Corp.,      624    F.3d     537,   553     (2d      Cir.    2010)

(alterations omitted)).                Here, the crux of the denial of class

certification         based       on    the        allegations      of    the     original

complaint, and the denial of leave to amend the complaint turns

on the district court’s interpretation of Wal-Mart.                            Because the

interpretation         of     Wal-Mart        underlies       both       the    appealable

certification      decision         and      the    non-appealable        leave-to-amend

decision, and resolution of the interpretation of Wal-Mart will

necessarily resolve both appeals, we find that our exercise of

pendent appellate jurisdiction is proper.

       We may also review the leave-to-amend decision under the

“necessary to ensure meaningful review” methodology.                             An issue

is “necessary to ensure meaningful review” if “resolution of the

appealable issue necessarily resolves the nonappealable issue or

where review of the nonappealable issue is necessary to ensure

meaningful review of the appealable one.”                           Berrey v. Asarco,

Inc., 439 F.3d 636, 647 (10th Cir. 2006).                            Here, as detailed

below, the proposed amended complaint includes specific company-

wide policies that allegedly cause a disparate impact--polices

not    specified      in    the     original        complaint    that       would     ensure

meaningful review of the class certification decision.                            Thus, we

exercise pendent appellate jurisdiction to review the denial of

leave to amend the complaint.

                                              11
                                         III.

      Appellants raise three primary arguments on appeal.                        First,

Appellants contend that the district court erred in holding that

pursuant to Wal-Mart, the proposed class claims in the original

complaint fail to satisfy Rule 23(a)’s commonality requirement.

Second,    Appellants      urge    that     the     district    court        failed    to

conduct    a    rigorous     analysis     of     the   certification         issue    and

failed to consider the evidence.                Finally, Appellants argue that

the district court abused its discretion by failing to grant

leave to amend the complaint.             Because we find that the proposed

amended        complaint      contains          substantial      allegations           of

centralized       control,      which     are     necessary      to     satisfy       the

commonality requirement for class certification as set forth in

Wal-Mart, we focus our review in this appeal on the district

court’s denial of leave to amend the complaint.

      We   review     a   district      court’s    decision     to    deny    leave    to

amend a complaint for abuse of discretion, and it is our “policy

to   liberally     allow    amendment      in     keeping   with      the    spirit    of

Federal Rule of Civil Procedure 15(a).”                 Galustian v. Peter, 591

F.3d 724, 729 (4th Cir. 2010).                    A district court abuses its

discretion      “by   resting     its    decision      on   a   clearly       erroneous

finding of a material fact, or by misapprehending the law with

respect to underlying issues in litigation.”                          Quince Orchard



                                          12
Valley Citizens Ass’n, 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    complaint    for    two    primary      reasons.       First,   the

district     court     determined    that    the    proposed       amendment      was

foreclosed       by    Wal-Mart,    reasoning      that    like        the   original

complaint,       the    proposed     complaint     pointed        to     subjective,

individualized decisions and failed to satisfy the commonality

requirement of Rule 23(a). 3           Second, the district court found

that amendment would be prejudicial to Family Dollar because the

proposed complaint was filed three years after the filing of the

original complaint and alleges a new legal theory in order to

avoid Wal-Mart.        We address each rationale in turn.

                                        A.

     The district court’s denial of leave to amend the complaint

on grounds that it was foreclosed by Wal-Mart is erroneous and

based on a misapprehension of the applicable law.                       A review of

Wal-Mart and its principles reveal the district court’s error.

     3
       Under Rule 23, a class may be certified if (1) “the class
is so numerous that joinder of all members is impracticable”
(numerosity); (2) there are one or more “questions of law or
fact common to the class” (commonality); (3) the named parties’
“claims or defenses are typical of the claims or defense of the
class” (typicality); and (4) the class representatives “will
fairly and adequately protect the interests the class” (adequacy
of representation). Fed. R. Civ. P. 23(a). Commonality is the
only factor at issue in this appeal.      We make no findings or
conclusions as to the other requirements.


                                        13
                                            i.

     In   Wal-Mart,      the   Supreme           Court    considered       whether   the

commonality      requirement     under      Rule     23    for   class     actions   was

satisfied in a sex discrimination suit alleging violations of

Title VII.       The plaintiffs filed suit on behalf of 1.5 million

current and former female employees of Wal-Mart Stores, Inc.

(“Wal-Mart”), asserting that Wal-Mart’s local managers exercised

discretion over employees’ pay and promotions in a manner that

disproportionally      favored       male    employees       and    had    an   unlawful

disparate     impact     on    the     female        employees.           Further,   the

plaintiffs     alleged    that       Wal-Mart’s          failure     to    curtail   its

managers’ discretion essentially amounted to unlawful disparate

treatment.

     In     holding    that    the     allegations          were     insufficient     to

satisfy the commonality requirement for class actions, the Court

found that the plaintiffs could not demonstrate that the class

members “suffered the same injury,” i.e., their claims did not

depend    upon     a   “common       contention”          capable     of     “classwide

resolution.”      Wal-Mart, 131 S. Ct. at 2551.                    The Court reasoned

that in the Title VII context, one individual’s claim turns on

“‘the reason for the particular employment decision.’”                           Id. at

2552 (quoting Cooper v. Fed. Reserve Bank of Richmond, 467 U.S.

867, 876 (1984)).        And, in the class action context, “[w]ithout

some glue holding the reasons for all those decisions together,

                                            14
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.

       The Court explained that such glue might exist if:                      (1) the

employer uses a biased testing procedure that produces a common

result; or (2) there is “‘[s]ignificant proof that an employer

operated under a general policy of discrimination.’”                               Id. at

2253 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 159

n.15 (1982)).       The latter form was more applicable in Wal-Mart,

yet the Court found that a “general policy of discrimination”

was “entirely absent.”           Id.     Specifically, the Court pointed to:

(1)    Wal-Mart’s      express    policy       forbidding      sex   discrimination;

(2) expert testimony of a “strong corporate culture” that made

it    vulnerable    to    gender       bias    but     which   lacked    a    nexus    to

employment decisions; and (3) a corporate policy of allowing

discretion by local supervisors over employment matters, which

to the Court was “just the opposite of a uniform employment

practice that would provide the commonality needed for a class

action”      because     it   was      “a     policy     against     having    uniform

employment practices.”           Id. at 2553-54.

       The Court acknowledged that it previously recognized that

giving discretion to lower-level employees may form the basis of

Title VII liability under a disparate impact theory, but to do

so, the plaintiffs must first identify the “specific employment

                                             15
practice that is challenged.”                     Id. at 2555 (citing Watson v.

Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988)).                              However, in

the   case    before    it,    the    Court       noted       “[o]ther     than       the   bare

existence of delegated discretion, respondents have identified

no ‘specific employment practice’--much less one that ties all

their   1.5      million    claims     together.”             Id.        Thus,    the       Court

concluded that the commonality requirement was not satisfied.

      Two principles readily derived from Wal-Mart are applicable

to this case.          First, Wal-Mart did not set out a per se rule

against class certification where subjective decision-making or

discretion is alleged.            Rather, where subjective discretion is

involved,        Wal-Mart     directs       courts       to    examine         whether       “all

managers     []    exercise    discretion          in    a    common     way    with[]      some

common direction.”          Id. at 2554.           Thus, to satisfy commonality,

a plaintiff must demonstrate that the exercise of discretion is

tied to a specific employment practice, and that the “subjective

practice     at    issue    affected        the    class      in    a    uniform      manner.”

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, 446 (2012).

      As     a     corollary,        even     where          company-wide         subjective

decision-making        or   discretion        is        alleged     in    the     employment

discrimination        context,       Wal-Mart        indicates          that     if    another

company-wide policy is also alleged, courts must also consider

                                             16
it.     See Wal-Mart, 131 S. Ct. at 2553 (considering evidence of a

company-wide       “strong   corporate     culture”       that    makes    Wal-Mart’s

decision-makers       susceptible     to       gender    bias,     but    finding    it

unsatisfactory because the adduced expert testimony failed to

demonstrate that the corporate culture or “stereotyped thinking”

affected employment decisions).                Thus, even in cases where the

complaint alleges discretion, if there is also an allegation of

a company-wide policy of discrimination, the putative class may

still satisfy the commonality requirement for certification.

       Second, Wal-Mart is limited to the exercise of discretion

by     lower-level    employees,     as        opposed    to     upper-level,       top-

management personnel.          This qualitative distinction is critical

because      typically,      in    exercising           discretion,       lower-level

employees do not set policies for the entire company; whereas,

when     high-level      personnel       exercise         discretion,       resulting

decisions affect a much larger group, and depending on their

rank    in   the   corporate      hierarchy,      all     the    employees    in     the

company.       Consequently,       discretionary         authority       exercised    by

high-level corporate decision-makers, which is applicable to a

broad segment of the corporation’s employees, is more likely to

satisfy      the     commonality     requirement          than     the     discretion

exercised by low-level managers in Wal-Mart.




                                          17
                                          ii.

       Courts’ rulings on class certification since Wal-Mart bear

out the principles announced herein.                  See McReynolds v. Merrill

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 policies); see also, Tabor v. Hilti, Inc., 703 F.3d

1206, 1229 (10th Cir. 2013) (denying class certification where

challenged policy was “highly discretional,” and the only other

alleged    company-wide        policy    was    not    maintained       in     a    uniform

manner); Bolden v. Walsh Constr. Co., 688 F.3d 893, 898 (7th

Cir.    2012)   (denying   class        certification        in   a   Title        VII   case

where    the    only   company-wide       policy      alleged     was     a    policy     of

giving discretion to lower-level managers and there was a lack

of evidence that discretion was exercised in a common way at

some common direction).

       A comparison of McReynolds and Bolden, both decisions from

the Seventh Circuit, highlight the parameters of Wal-Mart.                                 In

McReynolds, the plaintiff contested two national, company-wide

policies--a teaming policy and an account distribution policy.

672 F.3d at 488.        The teaming policy allowed brokers to form and

distribute      commissions      with    teams;       brokers     could       decide     for

themselves whether to form teams; and, once the team was formed,

brokers    decide      which    other     brokers       to    admit.          Id.         The

                                          18
plaintiffs        argued   that   this   national      policy     had   a   disparate

impact because some successful teams refused to admit blacks.

Under the account distribution policy, the customers’ accounts

of a broker that had left the company were transferred within a

branch office; brokers in that office competed for the accounts,

and the broker who ultimately won the accounts was determined by

company-wide criteria that included the competing brokers’ past

records      of   revenue    generated,      and    number   of   investments    and

clients retained.          Id. at 488-89.

       The    Seventh      Circuit   noted     that   “Complex     Directors”    and

“branch-office        managers”      “have     a   measure   of   discretion    with

regard to teaming and account distribution [because] they can

veto teams or supplement criteria for distributions.”                         Id. at

489.    The court explained:

       [T]o the extent that these regional and local managers
       exercise discretion regarding the compensation of the
       brokers whom they supervise, the case is indeed like
       Wal-Mart.      But the   exercise  of   discretion  is
       influenced by the two company-wide policies at issue:
       authorization to brokers, rather than to managers to
       form and staff teams; and basing account distribution
       on the past success of the brokers who are competing
       for transfers.
       . . .

       [P]ermitting brokers to form their own teams and
       prescribing criteria for account distributions that
       favor the already successful--those who may owe their
       success to having been invited to join a successful or
       promising team--are practices of Merrill Lynch, rather
       than practices that local managers can choose or not
       at their whim.    Therefore challenging those policies


                                          19
       in a class action is not forbidden by the Wal-Mart
       decision.

Id. at 489-90.             The court noted that in the absence of the

teaming or account distribution policies, if instead the case

involved delegation to local management the decision to allow

teaming and the criteria for account distribution, McReynolds

would be more like Wal-Mart.                 Id. at 490.          Satisfied with the

distinction between McReynolds and Wal-Mart, the court reversed

the district court’s denial of class certification.

       In   Bolden,        the    Seventh    Circuit       reversed     the     district

court’s     grant     of     class    certification.         There,     twelve      black

construction workers alleged that the supervisors practiced or

tolerated racial discrimination in assigning overtime work and

in    working    conditions        (for     example,    derogatory          graffiti    in

portable    toilets        and    hangman’s       nooses     in   toilets      or   break

sheds).     688 F.3d at 895.          The plaintiffs attempted to certify a

class covering the employer’s 262 project sites in Chicago.                            Id.

The    Seventh    Circuit        noted     that   “[t]he     sites     had     different

superintendents, with different policies . . . and many of the

allegedly discriminatory practices depended on the foremen, who

made    most     overtime        offers,    [and]    chastised        (or     failed   to

chastise) workers who used racially inflammatory language.”                            Id.

at 896.        Additionally, the court pointed out the plaintiffs’

concessions      that      “[d]ifferent      sites     had    materially       different


                                            20
working     conditions[;]           .    .      .     most     superintendents        the[]

[plaintiffs] had worked with did not discriminate; [and] their

objections      concerned      only       a    handful       of    superintendents     and

foremen.”       Id.    The court likened the case to Wal-Mart and held

that    “when      multiple     [local]             managers      exercise      independent

discretion, conditions at different stores (or sites) do not

present a common question.”               Id.        It then distinguished the case

before it from McReynolds:

       [In McReynolds,] we held that a national class could
       be certified to contest the polic[ies], which [were]
       adopted by top management and applied to all of
       Merrill Lynch’s offices throughout the nation.    This
       single national policy was the missing ingredient in
       Wal-Mart.    . . .    [Here,] Walsh had no relevant
       company-wide (or Chicago SMSA-wide) policy other than
       (a) its rule against discrimination, and (b) its grant
       of discretion to superintendents assigning work and
       coping with offensive or bigoted conduct.    The first
       of these policies presents no problem . . . and the
       second--the policy of on-site operational discretion
       is the precise policy that Wal-Mart says cannot be
       addressed in a company-wide class action.

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        insufficient      to   satisfy   the


                                               21
commonality        standard      set        forth    in      Wal-Mart,       because     the

complaint        fails      to     allege        that       the     “subjectivity        and

stereotyping”          regarding     compensation           paid     to     female     store

managers        were   exercised       in    a     common    way     with    some     common

direction, and conclusorily alleges that Family Dollar engaged

in “centralized control of compensation for store managers at

the corporate level of its operations.”                           Aside from this bare

allegation,        the    original       complaint          does    not     identify     the

decision-makers responsible for pay and promotion.                                  Thus, we

affirm the district court’s dismissal of the original complaint.

We view the proposed amended complaint differently.

     Applying the above principles, we find that the district

court erred in denying leave to amend the complaint because it

failed     to    consider    whether:        (1)    in    light     of    the   discretion

alleged, the discretion was exercised in a common way under some

common     direction,      or    despite      the    discretion          alleged,    another

company-wide policy of discrimination is also alleged; and (2)

the discretionary authority at issue was exercised by high-level

managers, as distinct from the low-level type managers in Wal-

Mart.

     In dismissing the proposed amended complaint, the district

court held that Wal-Mart precludes Appellants’ class allegations

of   sex        discrimination      in       pay     because        it     believed     that

Appellants’ claims rest only on a theory that Family Dollar’s

                                              22
“use of subjective decision-making created disparities between

male and female employees.”                Additionally, the district court

concluded      that     the    company-wide      employment     policies      in    the

proposed       amended        complaint     were      limited       to    subjective,

individualized         decision-making--a        theory     which    it   stated    was

“simply foreclosed” by Wal-Mart.                The district court’s reasoning

is based on a misapprehension of both the applicable law and

policies alleged by Appellants.

     The       proposed       amended     complaint       clearly    specifies      the

following company-wide practices:                  (1) a salary range policy;

(2) a pay raise percentage policy; (3) a “built-in headwinds”

policy; and (4) dual pay system for hirees and promotees.                            To

expound,    the    salary      range    policy     sets    mandatory      minimum   and

maximum pay for Store Managers.                 According to Appellants, as a

result    of    this    company-wide       salary     range   policy,      there    are

significant disparities in the number of women in the upper pay

levels of that range, and exceptions above the range--granted by

the corporate Vice Presidents--are often granted more in favor

of men.        Further, under the pay raise percentage policy, an

increase to a store manager’s compensation is determined by the

manager’s prior performance ratings.                  The Regional Manager and

Divisional Vice President grant exceptions above that pay raise

percentage, and do so “significantly greater” in favor of men.

Additionally, the “built-in headwinds” policy is a method for

                                           23
evaluating       and        determining      compensation          based      on    “prior

experience,       prior      pay,    quartile      rankings    and     other       specific

criteria     that      have    a    disparate       impact    on    women’s        salaries

because      they           incorporate       and      perpetuate           such      past

discrimination.”            Essentially, this is a testing or evaluation

method that Appellants allege is biased.                     Finally, the dual pay

system for hirees and promotees caps the compensation paid to

individuals who are promoted below what lateral hires can make.

Statistics proffered by Appellants show more women promoted, and

more men hired laterally, influencing the disparity in pay.

      We do not now rule on the sufficiency of the allegations of

the   proposed        amended       complaint      concerning       the     company-wide

policies or on whether certification of the putative class will

ultimately       be    warranted.           However,    in     considering          whether

amendment of the complaint would be futile, we observe that the

proposed   amended          complaint’s     allegations       of    uniform    corporate

policies     and       of     high-level      corporate       decision-making          are

substantively different from those that the Supreme Court held

sufficient       in    Wal-Mart.       For    instance,       the    dual    pay     policy

referenced in the proposed amended complaint is a company-wide

policy    that    is    in    place    in    all    Family    Dollar      Stores.       The

amended complaint alleges that women suffer disparate impact as

a direct result of this corporate-imposed pay preference for

lateral hires.          In contrast, if decisions regarding the pay of

                                             24
hirees and promotees were left to the discretion of low-level

managers, then the alleged discrimination would be akin to the

discrimination alleged in Wal-Mart.                    See McReynolds, 672 F.3d at

490.

       Moreover,       the    discretionary          decisions          set    forth    in   the

proposed    amended         complaint     are       made    by    high-level          corporate

decision-makers with authority over a broad segment of Family

Dollar’s employees, not on an individual store level as in Wal-

Mart.    Contrary to the dissent’s unsupported characterization of

the decision-makers in the present case as “middle management,”

the    amended       complaint       explains       that    exceptions          to    centrally

determined salary ranges can only be made by “the corporate Vice

President at corporate headquarters.”                       Similarly, exceptions to

corporate-imposed            raise     percentages         were     made        by     regional

managers       and    senior     vice        presidents,         again         at    “corporate

headquarters.”         These allegations of high-level decision-making

authority exercised by officials at corporate headquarters are

thus    different      in    kind     from    the    allegations          in    Wal-Mart,     in

which    local       supervisors        were       vested        with     almost       absolute

discretion over pay and promotion decisions.                             Wal-Mart, 131 S.

Ct. at 2547.

       Given    these       substantial       distinctions,         Wal-Mart          does   not

preclude as a matter of law a class certification based on the

amplified allegations of the proposed amended complaint.                                      In

                                              25
light of our policy favoring liberal amendment of complaints, we

hold that the district court erred in concluding that amendment

would be futile and in denying leave to amend the complaint.

The district court therefore should revisit the certification

question     when     the   record    underlying         the     allegations     in   the

amended complaint has been more fully developed.

                                            B.

       The district court next denied leave to amend on grounds

that    amendment      would   be    prejudicial          to    Family   Dollar.        In

support of its prejudice conclusion, the district court stated

that the original complaint was filed over three years prior,

and Appellants did not seek to amend until briefing on Family

Dollar’s      motion    for    summary        judgment         was   almost    complete.

Further, the court stated that the proposed complaint alleges a

“new theory” in an attempt to avoid Wal-Mart.                         For the reasons

stated below, we find that the district court’s determinations

as to prejudice are clearly erroneous.

       First, as to the delayed filing of the proposed complaint,

review of the record indicates that the cited delay, for the

most    part,   is     attributable      to      Family    Dollar.        On   numerous

occasions, Family Dollar moved to dismiss the complaint and this

had    the   effect    of   staying    discovery,          thereby     prolonging      the

litigation.         Appellants      ought     not   to     be    penalized     for    this

delay.       Further, the typical briefing schedule for motions to

                                            26
dismiss or summary judgment involves the initial filing of a

dismissal motion by the defendant, then the plaintiff files an

opposition to the motion and if necessary, a motion to amend the

complaint, and then the defendant files a reply brief.                                   That

Appellants filed the motion for leave to amend simultaneously

with   their     opposition     to     Family      Dollar’s       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.    In their original complaint, Appellants alleged both

“subjectivity and gender stereotyping,” as well as “centralized

control    of    compensation        for    store    managers       at   the      corporate

level of [Family Dollar’s] operations.”                      They originally failed

to support either theory with substantial factual allegations,

including       the   nature    of     the       claimed    “centralized          control,”

though    the    district      court       initially       held   that     the     original

complaint survived Rule 12(b)(6).                  Following Wal-Mart, it became

clear that Appellants needed to allege more control over pay

determinations        by   upper-level            decision-makers        to       meet   the

commonality       requirement.             The    Appellants       filed      a    proposed

amended complaint accordingly and included numerous additional

                                             27
facts   supporting         their     previous       assertion       of    centralized

corporate control.

      Family      Dollar    makes    much      of   the    fact    that     Appellants

previously stated their claims were virtually identical to those

dismissed in Wal-Mart, seemingly alleging an estoppel argument.

Even assuming that Appellants seek to pursue a completely new

legal theory from the one asserted previously, such an approach

is not cause for “judicial estoppel.”                See Lowery v. Stovall, 92

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     is    inconsistent     with    a     stance    taken    in   prior

litigation.       And the position sought to be estopped must be one

of   fact   rather      than   law   or   legal     theory.”       (emphasis      added)

(citation omitted)).           Appellants’ present factual position in

the proposed amended complaint is consistent with the original

complaint.         As      Appellants     contend,        the     proposed     amended

complaint merely elaborates on the allegation in the original

complaint that Family Dollar engages in “centralized control of

compensation for store managers at the corporate level.”                             The

legal theory remains the same, thus, judicial estoppel is not

cognizable in this action.

      Further, we have held that “the filing of a supplemental

pleading     is    an     appropriate       mechanism      for     curing    numerous

possible defects in a complaint.”               Franks v. Ross, 313 F.3d 184,

                                          28
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.’”).      Hence, as Family Dollar believed that the original

complaint was defective in light of Wal-Mart, Appellants should

have   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

“basis for a finding of prejudice essentially applies where the

amendment is offered shortly before or during trial.”                             Johnson

v.   Oroweat     Foods    Co.,     785   F.2d        503,    510   (4th    Cir.    1986).

Because   the    parties    were     still      in    discovery,     and    many    steps

removed   from    trial,    the     purported         undue    prejudice     to    Family

Dollar is overstated.            We emphasize that our holding does not

condone an automatic three-year period for plaintiffs to seek

leave to amend a complaint.                Rather, we conclude that Family

Dollar would not be unduly prejudiced by the amendment under all

the particular circumstances presented in this case.




                                          29
                                         IV.

     The    district       court   abused          its   discretion     in   denying

Appellants’      request     for   leave      to    amend   their     complaint   by

primarily basing the denial on its erroneous interpretation of

Wal-Mart.     We reverse the district court’s decision in part and

remand for the court to consider, consistent with this opinion,

whether    the    proposed     amended     complaint        satisfies    the   class

certification requirements of Rule 23.

                                                                AFFIRMED IN PART,
                                                                REVERSED IN PART,
                                                                     AND REMANDED




                                         30
BARBARA MILANO KEENAN, Circuit Judge, concurring:

        I join Judge Gregory’s fine majority opinion in full.                            I

write briefly to emphasize that despite the dissent’s dystopian

view, the majority has rendered a straightforward and limited

decision: that the plaintiffs should be permitted to amend their

original complaint after a dramatic shift in the law regarding

class action certification.

      Meaningful access to the courts requires that plaintiffs

have a fair opportunity to plead their case in accordance with

the prevailing legal standard.                     The plaintiffs here should not

be   penalized         for      failing       to     amend    their     complaint      in

anticipation of Wal-Mart, but should be permitted this first

attempt to amend following that decision.                         Additionally, the

plaintiffs        obtained       new        information      about     the     corporate

structure of Family Dollar during mediation occurring after the

original complaint was filed, which facts they reasonably chose

to   include      in    the    proposed      amended    complaint.        Despite      the

dissent’s apparent assumption that the class will be certified

by   the    district      court,       if    the    allegations      included    in    the

amended complaint ultimately are not substantiated, the class

simply     will   not    be     certified,      and    the   plaintiffs’      case    will

fail.

      The    dissent          nevertheless         sweeps    broadly    and     bleakly,

convinced      that     the    class    action       mechanism    is   being    used    to

                                              31
“punish” the business community “for nothing more than being

companies.”      Dissent      at   35.        However,   the   majority    opinion

simply     allows    a      putative     class     to    re-plead    its     class

allegations, in accordance with Federal Rules of Civil Procedure

15   and   23.      Under    the   majority’s      holding,    the   ability   of

litigants to seek access to our courts will be restricted solely

by the strength of their case.




                                         32
WILKINSON, Circuit Judge, dissenting:

     I cannot join the majority’s decision, because it fails to

respect the two other levels of the federal judiciary, namely

the Supreme Court and the district courts.                   First as to the

Supreme Court.       The decision is Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541 (2011), and the majority opinion has drained it

of meaning.       The defendant here, as in Wal-Mart, relies on what

plaintiffs admit are multitudinous, discretionary decisions by

middle and lower management, which would seem to render class

action treatment under Wal-Mart impermissible and ineffectual.

Notwithstanding this, the majority has unloaded on the district

court the prospect of a massive, nationwide class action whose

administrability would in all likelihood prove impossible.

     In     the    majority’s    view,      Wal-Mart    applies    only   where

decisions    are    left   to   the   complete      discretion    of   low-level

managers, maj. op. at 25, and are implemented on an “individual

store level.”      Id.     The fact that a company delegates extensive

discretion    to   95    vice   presidents    and    400   district    managers,

Appellee’s Br. at 3 (citing Grace v. Family Dollar Stores, Inc.

(In re Family Dollar FLSA Litig.), 637 F.3d 508, 510 (4th Cir.

2011)), does not, in the majority’s view, bring this case within

the ambit of Wal-Mart and still permits nationwide class action

treatment.    The majority assumes that nearly 500 middle managers

somehow all exercise their discretion in lockstep.                 That cannot

                                       33
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 majority’s view, preclude

nationwide class action treatment.                       The fact that many managers

would elevate women from either inside or outside the company,

as     they    are     perfectly        free       to      do,     would        hardly     seem

discriminatory, but it would be contrary to the commonality Wal-

Mart 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   a

corporate vice president.               Maj. op. at 25.                But this fact only

confirms the assertion that placements within the ranges are

determined      by    middle    managers.           The    fact        that    exceptions      to

corporate limits on raises are made by regional managers and

senior vice presidents is similarly unavailing to the majority’s

position      --     regional    managers,          by    definition,          do   not    make

decisions on a national level.                     In the majority’s view, middle

managers at Family Dollar are purely robotic with respect to

those they supervise, but no American company operates in such a

way.

       The majority plainly believes Wal-Mart does not apply to

middle managers exercising delegated discretion under guidelines

such    as    these    because    if     it     believed         Wal-Mart       applied,    the

district court’s denial of nationwide class certification would

                                              34
be promptly affirmed.         The majority’s insistence that Wal-Mart

does not apply to middle management (but only to lower-level

store managers) suggests not so subtly that it wants this class

to   be   certified.       But     the    commonality           Wal-Mart      insists    is

necessary for class action certification is plainly absent here,

though    the   majority    purports          to   find    it   in    some    centralized

policy.     The fact that a company sets pay ranges or values prior

experience      or   performance     as       factors      in   compensation      is    not

sinister.       Vast numbers of companies do just that.                         A policy

with an obvious business justification may occasionally produce

some statistical disparity nationwide.                     But Wal-Mart makes clear

that the fact that a policy may have some statistical disparity

nationwide      does    nothing    to     dispel          the   fact    that    in     many

districts, the policy will not have a statistical imbalance, but

indeed may work to the decided advantage of the putative class.

131 S. Ct. at 2555.

      The    policies      cited     by        plaintiffs       are     not     “built-in

headwinds,” maj. op. at 23 (internal quotation marks omitted),

but rather common management techniques that make common sense.

If   centralized       delegations       of    discretion        such   as     these    are

enough for a nationwide class action to get rolling, then few

companies will be exempt.            The law is punishing companies for

nothing more than being companies, which is apparently the new

status offense.

                                          35
      In reaching its decision, the majority faults the district

court for denying plaintiffs leave to amend their complaint.

But if this is an abuse of discretion, and these findings are

clearly    erroneous,       then   class    action      litigation   will   almost

never end.         Not content with finding the district court “abused

its discretion,” maj. op. at 30, the majority holds its factual

findings “clearly erroneous” as well.                  Id. at 26.    The district

judge should be commended, not condemned.                  The amended complaint

severely prejudiced the defendants by forcing them to defend a

wholly different suit three years after the original complaint

was filed.     The amended complaint contradicted assertions in the

original complaint to such an extent as to do violence to the

values    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 Court’s

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    a    small   measure   of    candor     and   consistency    in   the

filings of that court.             It is our obligation to respect the

Supreme    Court’s     preeminent     place       in   a   hierarchical    judicial

system, as well as the trial court’s discretion and experience

                                           36
in matters explicitly entrusted by both logic and precedent to

its competence. This decision does neither.



                                           I.

     Federal       Rule    of    Civil   Procedure     15(a)(2),     which   governs

pretrial requests for leave to amend, advises that “[t]he court

should freely give leave when justice so requires.”                      The Supreme

Court     has    accordingly       required     some   “justifying       reason”     in

support of the rejection of a party’s request to amend.                         Foman

v. Davis, 371 U.S. 178, 182 (1962).

     Nevertheless, the Supreme Court has repeatedly recognized

that “the grant or denial of an opportunity to amend is within

the discretion of the District Court.”                 Id.; see also Krupski v.

Costa Crociere S. p. A., 130 S. Ct. 2485, 2496 (2010).                       Denying

leave   to      amend    is     appropriate     when   at    least   one   of   three

circumstances exists: (1) “the amendment would be prejudicial to

the opposing party;” (2) “there has been bad faith on the part

of the moving party;” or (3) “the amendment would have been

futile.”        Laber v. Harvey, 438 F.3d 404, 426-27 (4th Cir. 2006)

(internal       quotation       marks    omitted).      For    the   reasons       that

follow,    it     is    abundantly      clear   that   the    district     court    was

justified in denying plaintiffs’ motion for leave on all three

grounds -- prejudice, bad faith, and futility.



                                           37
                                             II.

                                             A.

      As      to    the    first      ground,       “[w]hether      an      amendment      is

prejudicial         will   often     be    determined       by   the     nature     of    the

amendment and its timing.”                 Laber v. Harvey, 438 F.3d 404, 427

(4th Cir. 2006).           With respect to the amendment’s nature, “[a]

common example of a prejudicial amendment is one that ‘raises a

new legal theory that would require the gathering and analysis

of    facts    not     already       considered      by    the   defendant.’”             Id.

(quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th

Cir. 1986)) (alterations omitted).                   By contrast, “[a]n amendment

is not prejudicial . . . if it merely adds an additional theory

of recovery to the facts already pled.”                    Id.

      The      majority       acts    as     a     cheerleader      for      the    amended

complaint,         glossing    over    its       gross    incompatibility          with   the

original      and    casually      dismissing       the    threat      of   prejudice      as

“overstated.”         Maj. op. at 29.              A comparative analysis of the

two    complaints          makes       recognition         of    the        night-and-day

differences between them unavoidable.                      The majority’s statement

that appellants do not allege a new theory, id. at 27, finds

support neither in the record nor in the law.                          The text of the

two complaints speaks -- nay, screams -- this conclusion for

itself.



                                             38
                                   1.

      At its core, the original complaint attacks Family Dollar

for   maintaining   a     supposedly     subjective    and    decentralized

decision-making     structure     for     determining        store     manager

compensation,     which     plaintiffs     alleged      produced      illegal

discrepancies between male and female pay.            A crucial paragraph,

in particular, levels the following accusation with great force:

      Defendant’s pay decisions and/or system includes
      subjectivity and gender stereotyping that causes
      disparate impact to compensation paid to female store
      managers.   Plaintiffs are aware, at this time, of no
      other criteria which causes such disparate impact
      other than gender bias, subjectivity and stereotyping.
      Plaintiffs are unaware, at this time, of any other
      specific criteria that are capable of separation and
      analyses.

Compl. ¶ 22 (emphases added).

      The import of that paragraph is crystal clear:                 according

to plaintiffs themselves, any actionable discrimination derived

solely from “subjectivity and gender stereotyping” -- nothing

less, nothing more. 1     Where subjectivity and gender stereotyping

translate directly into discriminatory employment outcomes for a

nationwide group of employees (as alleged here), the contested

decisions    must    necessarily        have   occurred       outside     the


      1
       As discussed in Part III, plaintiffs also repeatedly
represented to the district court the extreme similarity of
their claims to those brought in Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541 (2011), which were founded on allegedly
discriminatory exercises of discretion.

                                   39
corporation’s core.              Any centralized employment policy -- even

if    rooted    in    the   prejudicial           predilections        of    a     particular

officer    or    group      of     officers       --   could    result       in     generally

unfavorable      consequences         for     plaintiffs       only     if        implemented

through objective standards, such that the lower-level decision-

makers who determine individual store managers’ salaries have

little personal power to deviate from the commands dictated by

corporate      headquarters.           But    plaintiffs’        complaint          was     that

lower-level managers had too much discretion to deviate, not too

little.

       Nor does the original complaint specify any other aspect of

Family Dollar’s compensation policies as a source of plaintiffs’

injury.     In light of prior litigation involving Family Dollar,

it should come as no surprise that the original complaint is

rooted exclusively          in     allegations         of   permissive       “subjectivity

and    gender    stereotyping.”              In    a    previous   suit           brought    by

plaintiffs’      counsel         against      Family         Dollar,        for     instance,

plaintiffs (some of whom are also parties to the instant action,

Appellee’s      Br.    at     4)    alleged       that      “[d]espite       [gender-based

disparities      in    pay,      Family      Dollar]        continues       to     allow    its

District Managers to subjectively decide what a Store Manager

should earn.”         Opponent’s Responsive Submission in Resp. to Ex.

B of the Ct.’s Order at 12, Collins v. Family Dollar Stores,



                                             40
Inc., No. 7:04-cv-00553-VEH (N.D. Ala. Nov. 17, 2006), ECF No.

235.

        Plaintiffs       seek     to    avoid      the      thrust    of     their   original

complaint       by     clinging        to    a    single      sentence       repeated    (with

immaterial variations) several times in their original complaint

--     that     “[d]efendant           engages         in     centralized       control     of

compensation for store managers at the corporate level of its

operations.”           Compl. ¶¶ 18, 37, 46, 53.                  This uninformative bit

of boilerplate seeks to subject corporations to nationwide class

actions        by     virtue     of    their       mere       existence.        Plaintiffs’

reasoning in this respect would penalize a company for little

more than operating on a national scale under the same corporate

name.     Even if taken as true, the fact that some centralized

directive       comes     from    some       corporate        headquarters      is   entirely

unremarkable.            Surely       corporations          of    national     scope    cannot

flourish in the modern economy without some “centralized control

of compensation” for their many thousands of employees.                                 At the

very least, corporate headquarters must allocate resources and

articulate certain general policies to guide regional or other

mid-level managers in setting individual salaries and wages.

        The alternative would operate to inhibit the most basic

tools     of    management        and       result       in      budgetary    chaos.       The

question,           therefore,    is        how    much       “centralized      control     of

compensation”          the     original          complaint        actually    alleges     with

                                                  41
respect to the challenged employment decisions.                  The answer is,

clearly, not much.          If this bare, conclusory statement in the

complaint is given weight, then nationwide class action suits

are off and running, notwithstanding Wal-Mart and the pleading

standards laid down in Ashcroft v. Iqbal, 556 U.S. 662 (2009),

and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

                                        2.

      The amended complaint, in stark contrast to the original,

pivots 180 degrees to assert that Family Dollar’s compensation

scheme actually operates in an objective and centralized manner.

The   amended    complaint    is   not,      as    the    majority   contends,   a

“mere[] elaborat[ion]” on the original.                  Maj. op. at 28.   It is

what the district court says it is: a bald attempt to assert a

completely new theory.         It backtracks on the earlier assertion

that the flaw in Family Dollar’s compensation scheme was too

much decentralized, subjective decision-making, by alleging that

the   system    “requires    pay   to   be   set    by    uniform,   company-wide

criteria.”      Am. Compl. ¶ 29.             The complaint now decides to

challenge the purported lack of subjectivity inherent in the

company’s supposedly centralized compensation scheme -- the very

subjectivity     that   plaintiffs       had      earlier    insisted   was   the

hallmark of Family Dollar’s corporate structure.




                                        42
     As       for        plaintiffs’      allegations             concerning        the

implementation      of    Family   Dollar’s         compensation      criteria,     the

following passage is typical:

          Store Managers’ compensation is not set by
     managers who have unfettered discretion to use their
     own judgment without regard to any corporate-imposed
     criteria or standards. All Store Managers’ salaries .
     . . are subject to the same corporate-administered pay
     system    and   policy    established   by   corporate
     headquarters; all Store Manager’s salaries are subject
     to store payroll budgets established at corporate
     headquarters; and all Store Managers have the same job
     description which sets forth a common set of duties
     and responsibilities regardless of location. There is
     no policy against having uniform employment practices
     at Family Dollar.

Id. ¶ 32.      We are now explicitly told, moreover, in a complete

about-face from the original complaint, that “Family Dollar is

not operated in a decentralized, subjective manner.                      Nor is the

pay-setting process for Store Managers based on decentralized,

subjective     decisionmaking.”          Id.    ¶    34.      The    demons    in   the

original complaint were those runaway lower-level managers.                         The

demon    in   the   amended    complaint       is    a     controlling    “corporate

headquarters.”      Id. ¶ 35.

                                         3.

        Given all of the foregoing, it should be plain that the

amended complaint is not some mere modification of the original,

as   the      majority     contends.           Instead,      it     is   manifestly,

substantively different from the original.                    The two are utterly

irreconcilable.      They     describe    two       different       companies.       By

                                         43
transforming        their     claims          from       a        frontal        assault     on    an

excessively        subjective      and     decentralized               compensation          system

into    an     intricate      attack       on        a   purportedly              objective       and

centralized scheme, plaintiffs have done far more than “raise[]

a new legal theory.”          Laber, 438 F.3d at 427 (internal quotation

marks omitted).

       The majority breezily dismisses these concerns, asserting

in conclusory terms that “[t]he legal theory remains the same.”

Maj. op. at 28.           My colleagues would be wise to pay some modest

heed   to    the    opinion       of    the     district           judge,        who   was   better

situated to evaluate the actual implications of the transfigured

complaint.          The     new        complaint,            by     virtue        of   its    novel

allegations, would require significant “gathering and analysis

of facts not already considered by the defendant.”                                     Laber, 438

F.3d at 427 (internal quotation marks and alterations omitted).

As the district judge emphasized: “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.”

J.A. 418.

       Thus,    the   district          court    was         correct        to    conclude        that

granting leave to amend would be prejudicial to Family Dollar.

Id. at 417-18.         “The proof required to defend against this new

claim would be of an entirely different character than the proof

                                               44
which the defendant [was] led to believe would be necessary.

Belated claims which change the character of litigation are not

favored.”       Deasy v. Hill, 833 F.2d 38, 42 (4th Cir. 1987).                               The

district       court      acted    well     within        its     discretion        by   denying

plaintiffs’ motion for leave to amend.

                                                B.

       The timing of a proposed pleading amendment also bears on

whether the change would prejudice the opposing party.                                    Laber,

438 F.3d at 427.             In particular, whereas an amendment “offered

before     any       discovery        has    occurred”             is    unlikely        to    be

prejudicial, “the further [a] case [has] progressed . . . , the

more     likely      it     is    that    the        amendment      will      prejudice       the

defendant.”          Id.;    see    also     United        States       ex   rel.    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    a    two-year       gap     between        filing       of    complaint       and

dismissal); Mayfield v. Nat’l Ass’n for Stock Car Auto Racing,

Inc., 674 F.3d 369, 379 (4th Cir. 2012) (affirming denial of

motion    for       leave    to    amend     where         “a     significant       amount     of

discovery had already been conducted”).

       Here,     plaintiffs’       attempt       to       amend    their     complaint        came

three years after the case was initially filed -- and only when

Family    Dollar       appeared       poised         to   succeed       on   its     motion    to

dismiss        and/or        strike       the         original          complaint’s        class

                                                45
allegations.         Moreover,    the     district     judge    observed       that

plaintiffs had been given “adequate time to conduct discovery,”

that they had in fact “conducted significant discovery,” and

that plaintiffs’ own counsel had even admitted “that discovery

is mostly completed.”         J.A. 414-15.         Hence, the district court

concluded     that   any    “additional      discovery    would      be   .    .    .

prejudicial to defendant.”            Id. at 415.     The court proceeded to

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 defendant’s 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    between     the     parties     during    the    course       of

discovery.     Such tit for tat, however, is not peculiar to this

litigation; every complex class action of this variety will have

just   this   sort   of    pretrial    motion   exchange.      The    majority’s

adoption of plaintiffs’ reasoning in this respect, maj. op. at

26, thus comes close to establishing a per se three-year grace



                                        46
period       for   motions   for    leave    to       amend.     Such     a   protracted

interval is excessive and susceptible to manipulative conduct.

The    new    rule   established     by     today’s      opinion    endorses         filing

delays that patently prejudice opposing parties.

       Moreover, the delay in this particular case is especially

unjustifiable.         Plaintiffs’     counsel         have    extensive      experience

with defendant’s corporate structure:                     by their own admission,

they have sued Family Dollar over labor and employment matters

“approximately 15” times since 2001.                    See Pls.’ Reply to Def.’s

Resp. to Pls.’ Opp’n to Terry Price Serving as Local Counsel and

Req. for Emergency Hr’g at 3 n.2, Scott v. Family Dollar Stores,

Inc., No. 3:08-cv-00540-MOC-DSC (W.D. N.C. Nov. 4, 2008), ECF

No. 15.        As the district court noted, plaintiffs were plenty

familiar through their multiple prior lawsuits with defendant’s

corporate organization.             J.A. 417.          Although plaintiffs assert

in a conclusory footnote that defendant’s compensation policies

have     changed     since    the    time        of    these    many    prior        suits,

Appellants’ Br. at 53 n.7, they provide no substantiation for

this claim nor do they identify any specific ways in which the

policies have been altered.

       The     majority      inexplicably         focuses      on   the       fact     that

plaintiffs’ motion for leave to amend was made prior to trial.

Maj. op. at 29.           The crux of this dispute, however, is class

certification.         That issue is routinely decided pretrial.                        See

                                            47
Fed. R. Civ. P. 23(c)(1)(A) (“At an early practicable time after

a person sues or is sued as a class representative, the court

must determine by order whether to certify the action as a class

action.”).       Any potential source of prejudice, therefore, lies

not in inconveniences at trial but rather in the superfluous or

additional discovery costs imposed on defendant as a result of

plaintiffs’       fluctuating       class      action    theories.          If    the

majority’s misplaced emphasis on trial represents a new standard

for    identifying      prejudice   in    class      certification   proceedings,

prejudice will almost never be found.

       I see no reason whatsoever to usurp the district court’s

essential case management functions or to question the accuracy

of    its    characterizations.          It    was   entirely     proper    for   the

district court to conclude that permitting plaintiffs to amend

their complaint so substantially and at such a late stage of the

game    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.                 See Newport News Holdings Corp.

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

probably have necessitated additional discovery,” and would have

“substantially change[d] the nature and scope” of litigation)

                                          48
(internal quotation marks omitted); Equal Rights Ctr. v. Niles

Bolton Assocs., 602 F.3d 597, 603-04 (4th Cir. 2010) (same).



                                     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 Court’s decision in Wal-Mart, 131

S. Ct. 2541.      The majority, however, misapprehends the import of

Wal-Mart   with    respect   to   the    final    two   grounds    on   which   a

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.        See Laber v. Harvey, 438 F.3d 404, 426-27

(4th Cir. 2006).

       A district court’s refusal to permit a pleading amendment

on bad faith grounds is justified where “the plaintiff’s first

theory of recovery is based on his own reading of . . . cases

and it turns out that he misinterpreted how that theory would

apply to the facts of his case.”             Id. at 428 (emphasis omitted).

That   situation    is   precisely      what    occurred   here.    Plaintiffs

misinterpreted how certain class action precedents would apply

to their case and then sought to construct an entirely new set

of facts to overcome their error.               Their willingness to adopt

contradictory factual positions in order to match their evolving

legal theories evidences a degree of bad faith sufficient to

                                        49
warrant denial of leave to amend.                    To the old-fashioned view

that    prior    representations         to    a     court     actually      count   for

something, the majority answers: Not much.

       Plaintiffs were wholly content to ride the coattails of the

proposed class in Wal-Mart while that class was enjoying success

in the lower federal courts.                  In consenting to a transfer of

venue in 2008, plaintiffs explicitly stated that, with respect

to a then-recent round of the Wal-Mart litigation, “[t]he Ninth

Circuit . . . affirmed certification of . . . a nationwide class

having virtually identical claims of sex discrimination in pay

to those brought in this case.”                J.A. 221 (citing Dukes v. Wal-

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

Circuit’s       decision      in”   Wal-Mart        than     the     cases   cited    by

defendant.      S.A. 527.

       Then    plaintiffs      adopted    a    dramatically         different     stance

after    the      Supreme       Court     reversed         the      Ninth     Circuit’s

certification decision in 2011.                See 131 S. Ct. 2541.             In their

briefing      before   this    court,    for       instance,       plaintiffs    contend

that “Family Dollar’s salary system is the opposite of that in

Wal-Mart,” Appellants’ Br. at 5; that “[t]he current case has

never alleged any store-level decisionmaking similar to that in

Wal-Mart,” id. at 16, 21-22 (emphasis omitted); that “[t]he Wal-

                                          50
Mart   decision       was   limited    to    localized    decisionmaking      within

each store that was not subject to any centralized policies or

control similar to those alleged here,” id. at 20-21; and that

“Wal-Mart simply does not apply to [the] Complaint [here],” id.

at 52 (emphasis omitted).

       Statements made at oral argument help to illustrate the

gross incompatibility between the factual allegations made by

plaintiffs’         original    and    amended       complaints.       The    court

inquired: “Don’t we have a big difference . . . between your

complaint and your amended complaint . . . in terms of the

substantive allegations?”             Plaintiffs’ counsel responded: “No, I

do not believe so.”          He later elaborated:

       We say that this case involves centralized criteria .
       . . and that we can show that that centralized
       criteria is what’s causing the disparity, not . . .
       anything localized. . . . That’s our complaint from
       Day 1.   If you read our original complaint, it says
       that we are attacking a centralized system.   It says
       nothing but that.

(emphasis added).           Despite these protestations to the contrary,

the original complaint actually says precisely the opposite.                      It

states explicitly that “Plaintiffs are aware, at this time, of

no other criteria which causes such disparate impact other than

gender      bias,    subjectivity      and       stereotyping.”      Compl.   ¶   22

(emphasis added).

       To    be     sure,   counsel     must      enjoy   latitude   in   amending

complaints to address intervening developments in the law and to

                                            51
incorporate           factual    material       uncovered          since    the       original

filing.     Some evolution of a plaintiff’s approach to a case is

to be expected, for good advocacy is adaptive in some measure.

It is a matter of degree, however, and the district court was

right to spot in plaintiffs’ new attack a bridge too far.

     For    the       instant    plaintiffs       do   not    merely       present      a   new

legal argument predicated on their original factual allegations,

or some modification based upon new revelations.                             Instead, they

seek to invent an entirely new set of facts tailored to their

revised theory of recovery.                 The corporate defendant described

in   the    amended          complaint      bears      no    more        than     a    nominal

relationship to that described in the original.                                 The proposed

amendment        is      “not      merely       clerical       or         corrective.        It

[establishes] an entirely new factual basis for the plaintiffs'

claims.”     Little v. Liquid Air Corp., 952 F.2d 841, 846 (5th

Cir. 1992), reinstated in relevant part, 37 F.3d 1069, 1073 &

n.8 (5th Cir. 1994) (en banc); see also Cornell & Co., Inc. v.

OSHRC, 573 F.2d 820, 824-25 (3rd Cir. 1978) (denying leave to

amend where plaintiff “changed the factual basis for the charge

as   well    as        his     legal   theory”)        (internal          quotation     marks

omitted).

     This        is     more    than     some     commonplace            doctrinal     point.

Complaints must bear some relationship to the external reality

which     they        purport    to    describe.            When     a     corporation      is

                                             52
reinvented        from        one     employing           decentralized,        subjective

decision-making          to     one     with     rigid,        entirely     centralized

policies, law’s relationship to reality is stretched too thin.

See Bradley v. Chiron Corp., 136 F.3d 1317, 1324-26 (Fed. Cir.

1998) (disregarding “sham” facts in an amended complaint that

contradicted the factual allegations pled in the original and

represented “a transparent attempt to conform the facts to the

requirements of the cause of action”).                      Law is not a mere set of

expressions to be manipulated toward a given end.                                It is a

system designed to ascertain truth as far as possible in order

to produce justice, to the extent possible.                            To do this, law

must   maintain      some      concrete    relationship         with    facts     as   they

exist.     Plaintiffs’ contradictory pleadings, which treat reality

as a plastic entity to be molded to their purposes, run directly

counter to this principle.                See Reddy v. Litton Indus., Inc.,

912 F.2d 291, 296-97 (9th Cir. 1990) (“Although leave to amend

should    be     liberally      granted,       the    amended       complaint    may   only

allege other facts consistent with the challenged pleading.”)

(internal quotation marks omitted).

       Were      plaintiffs         permitted        to    substitute     contradictory

factual narratives every time an intervening opinion cast doubt

upon     their    claims,       they    could        hold    defendants     hostage      by

indefinitely postponing final judgment.                       The majority finds the

original       complaint        deficient        because       it     alleged     only    a

                                            53
subjective decision-making structure.                     Maj op. at 21-22.             But

when plaintiffs sought to run from their prior representations

and assert a highly controlled decision-making apparatus, the

majority says no problem.              I regret that the majority encourages

litigants to approach courts in such a manner.



                                            IV.

     Finally,       the    district      court’s      rejection          of   plaintiffs’

motion    for    leave    to    amend   was       warranted    on    a    third   ground:

futility.       See Laber v. Harvey, 438 F.3d 404, 426-27 (4th Cir.

2006).     “Futility is apparent if the proposed amended complaint

fails     to    state     a    claim     under      the     applicable        rules     and

accompanying standards” -- that is, if it “fails to satisfy the

requirements       of    the   federal      rules.”         Katyle       v.   Penn    Nat’l

Gaming,    Inc.,    637       F.3d   462,    471     (4th     Cir.   2011)      (internal

quotation       marks     omitted).         Wal-Mart        itself       expounded     “the

requirements of the federal rules” -- specifically, Federal Rule

of Civil Procedure 23’s commands concerning the certification of

class actions.          It is plain that the amended complaint fails to

state a claim by virtue of that decision.

                                            A.

     As in Wal-Mart, “[t]he crux of this case is commonality --

the rule requiring a plaintiff to show that ‘there are questions

of law or fact common to the class.’”                       131 S. Ct. at 2550-51

                                            54
(quoting Fed. R. Civ. P. 23(a)(2)).                           Wal-Mart’s central teaching

is that the claims of each class member “must depend upon a

common contention.”                  Id. at 2551.             That common contention, in

turn, must “be of such a nature that it is capable of classwide

resolution -- which means that determination of its truth or

falsity will resolve an issue that is central to the validity of

each one of the claims in one stroke.”                                 Id.       Thus, “[w]hat

matters to class certification . . . is not the raising of

common ‘questions’ -- even in droves -- but, rather the capacity

of   a    classwide            proceeding    to    generate         common   answers         apt    to

drive      the          resolution     of    the        litigation.”             Id.     (internal

quotation marks omitted).

         Applying            these   principles         to     employment        discrimination

claims, the Wal-Mart Court made clear that “[w]ithout some glue

holding        the       alleged      reasons       for       [each   of     the       challenged]

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.”                 Id. at 2552.        As relevant here, plaintiffs must

show “‘[s]ignificant proof that an employer operated under a

general policy of discrimination’” in order to demonstrate the

existence of the requisite “glue.”                             Id. at 2553 (quoting Gen.

Tel.     Co.       of    Sw.    v.   Falcon,      457        U.S.   147,   159     n.15      (1982))

(alteration             in    original).         For    two     reasons,     plaintiffs        have

                                                   55
failed    to    satisfy      this    standard.        First,      the   claims      in   the

amended       complaint      fail   on   their     face.      Second,        even   if   the

claims were not facially deficient, the proffered evidence would

still    be    incapable      of    supporting       such    claims     on    a   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        complaint     --   are      legally    insufficient         from   the

outset.         In    both    cases,     defendants         are   large      corporations

operating nationwide chains of consumer-goods stores.                             From Wal-

Mart:

           Petitioner Wal–Mart is the Nation’s 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, Wal–Mart operates
      approximately 3,400 stores and employs more than one
      million people.

131 S. Ct. at 2547.            And from the briefing here: “Family Dollar

operates a chain of over 7,000 stores in more than 40 states”

and “‘has divided its operations into 95 regions, each run by a

vice president, and then into districts, each run by a district

manager.’”       Appellee’s Br. at 3 (quoting Grace v. Family Dollar

Stores, Inc. (In re Family Dollar FLSA Litig.), 637 F.3d 508,

510   (4th     Cir.    2011)).       There     are    approximately          four   hundred

                                             56
districts, each of which includes between ten and thirty stores.

Id.

       In     both      cases,    the       proposed           class     encompassed        many

thousands         of     retail-level,          female          employees        and     former

employees.         In both cases, plaintiffs challenged various pay and

promotion         decision    procedures             as    improperly      gender-related.

Compare Wal-Mart, 131 S. Ct. at 2547 (“The named plaintiffs in

this    lawsuit,        representing        the       1.5      million    members      of    the

certified class, are three current or former Wal–Mart employees

who allege that the company discriminated against them on the

basis of their sex by denying them equal pay or promotions, in

violation of Title VII of the Civil Rights Act of 1964 . . .

.”), with Am. Compl. ¶ 5 (“The plaintiffs bring this action on

behalf of themselves and all female Store Managers pursuant to

Title VII of the 1964 Civil Rights Act . . . and § 216(b) of the

Equal       Pay   Act    of   1963      .   .     .       to   redress    the    defendant’s

widespread        and    pervasive      gender        discrimination        in    employment

opportunities.”).

       And most significantly, in both cases, all of the contested

employment actions derived from the same type of decision-making

structure.         In Wal-Mart, the Supreme Court stated that mid-level

managers were allowed to exercise “discretion” within “limits”

imposed       and      enforced    by       “corporate          oversight,”       with      such

oversight         including       “preestablished               ranges”     and        “certain

                                                57
objective criteria” for pay and promotions.                              131 S. Ct. at 2547.

The district court in Wal-Mart provided even greater detail,

explaining      that          “the       company       maintains    centralized            corporate

policies       that       provide          some        constraint        on    the        degree    of

managerial discretion over in-store personnel decisions.”                                        Dukes

v.   Wal-Mart        Stores,         Inc.,      222     F.R.D.   137,     152-53      (N.D.        Cal.

2004).       For instance, “there is a basic compensation structure

that       applies       similarly         to     all    in-store        salaried         management

positions      across         all     types       of    Wal–Mart     stores,         in    that     the

computation begins with a base salary within a range set by the

corporation          .    .    .     ,     with       adjustments        allowed      for        profit

incentives and/or merit increases.”                        Id. at 148.

       As discussed in Part II, the factual and legal allegations

contained in the amended complaint in this case were so novel as

to   warrant     a       finding         of     prejudice.         The    fact     that      certain

allegations are new, however, does not indicate that they are

viable.       Here, despite plaintiffs’ efforts to allege extensive

centralized control, the amended complaint reveals the existence

of     a    corporate         decision-making             structure       parallel          to     that

described in Wal-Mart.                     As the district court here explained,

“Although plaintiffs [now] purport to deny that class members’

pay is set through a discretionary, subjective process, . . .

the discretionary pay of managers, within uniformly established

parameters,          remain[s]            the      only     source        of     discrimination

                                                   58
alleged.”        J.A.     417.        That       pattern          of    dispersed       managerial

discretion within centralized parameters is precisely that of

Wal-Mart.

      While plaintiffs fail to so much as identify the source of

many of the supposed nefarious corporate parameters, see, e.g.,

Am.   Compl.     ¶   51,    even       if    we       were     to      accept     these    dubious

assertions at face value, plaintiffs’ proffered amendment would

still      be   futile.          In    an       effort        to       identify    a     “specific

employment       practice”            responsible              for       the      alleged        pay

discrepancies, Wal-Mart, 131 S. Ct. at 2555 (internal quotation

marks    omitted),      plaintiffs          (and        the       majority)     point     to    four

corporate policies.          With respect to each claim, plaintiffs’ own

brief gives away the ballgame.                     First, plaintiffs challenge the

corporate-imposed salary ranges for store managers.                                    Appellants’

Br.   at    13-14;    Am.    Compl.         ¶     35.         A    salary      range,     however,

intrinsically        imparts          discretion              to       those      charged       with

administering it.           As the district judge noted, “a large number

of decision-makers, . . . located around the country, exercise

individual      discretion        in    placing           Store         Managers       within    the

established pay ranges.”               J.A. 419.          Discretion cabined by broad

corporate policies -- including salary ranges -- is precisely

the structure that Wal-Mart found not to be susceptible to class

action      treatment.           131        S.     Ct.        at       2547     (denying        class

certification despite defendant’s use of salary ranges).                                    If the

                                                 59
existence of such discretion defeated class action commonality

in Wal-Mart, it must do so here.

       Second, plaintiffs decry the alleged corporate-imposed cap

on pay raises and contend that exceptions to this cap, which may

only     be     granted   by   Regional        Managers    and    Divisional     Vice

Presidents,         are    granted        disproportionately          to       males.

Appellants’ Br. at 13; Am. Compl. ¶ 36.                    Regional Managers and

Divisional Vice Presidents, however, as their respective titles

indicate, are middle managers.                 See J.A. 419.       By definition,

they are incapable of dictating corporate-wide policies.                       As the

district judge noted, plaintiffs’ allegations in this respect

again converge with the facts in Wal-Mart: both cases involve

dispersed decision-makers exercising discretion (e.g., granting

exceptions) free of direct corporate control and oversight.                       Id.

at 417, 419.

       Third,     plaintiffs    argue     that      defendant’s     criteria      for

determining        compensation      --    criteria       which    include      prior

experience       and   performance    evaluations         --   disparately     impact

women.        Appellants’ Br. at 32; Am. Compl. ¶¶ 40, 51.             The use of

such criteria is hardly remarkable; the only thing that would be

remarkable is if Family Dollar failed to find prior experience

and prior performance relevant.                The business justification for

this practice is obvious.



                                          60
       Plaintiffs       do       not    allege,         moreover,    that       these    criteria

constitute a rigid formula; instead, the criteria appear to be

simple guideposts listing multiple factors designed to channel

the    discretionary         decisions            of    those    middle    managers       charged

with    setting      store        manager          salaries.         It    is    the    business

equivalent      of     a     judicial            totality-of-the-circumstances             test,

with the weight and relevance of the factor or circumstance to

be determined individually.                       Indeed, it would be senseless to

set    rigid     salaries           for      every       store     manager       at     corporate

headquarters,        both         because         it     would     strip       the    system   of

incentives and because the performance of each manager simply is

not identical.              As noted above, this type of broad corporate

constraint        on         what           is     fundamentally           a     discretionary

determination        does        not        satisfy      the     commonality         requirement.

Wal-Mart,      131     S.    Ct.       at    2547      (denying     certification         despite

defendant’s      use        of    “objective           criteria”     in    making       promotion

decisions).

       Fourth, plaintiffs complain that corporate policies require

that store managers promoted from within be paid less than those

who are hired laterally.                    Appellants’ Br. at 9; Am. Compl. ¶ 52,

54.    This policy allegedly produces a disparate impact insofar

as    female   store        managers         are       disproportionately         promoted     in-

house.    Appellants’ Br. at 10; Am. Compl. ¶ 55.                                Plaintiffs do

not    allege,       however,          that        either       method     of    selection     is

                                                   61
centrally mandated, nor do they allege that any central policy

is even responsible for the supposed tendency of females to be

promoted from within rather than hired laterally.

       Given that the alleged policy does not dictate the internal

or    external   route    of    store     manager    selection,      any    disparate

impact    that       arises     will    necessarily         be     the     result    of

decentralized choices by middle managers.                        Whether women are

disproportionately hired from within will vary from region to

region.     In short, “[i]n a company of [Family Dollar’s] size and

geographical scope, it is quite unbelievable that all managers

would exercise their discretion in a common way without some

common direction.”        Wal-Mart, 131 S. Ct. at 2555.                  Consequently,

the    existence     of   any    disparate     impact       resulting      from     this

particular policy will be resistant to coherent analysis at the

national level.

       The business justification for allotting a slight premium

to lateral hires is hardly obscure.                  It may well take such an

allowance       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,

standing alone, insufficient to conclude that a class action

will be viable.        Id. at 2555-56.         Under the lateral hire policy

at issue here, for example, some middle managers will hire women

from outside, or promote men from within.                    In other cases, the

                                          62
hiring party may herself be female.                         The alleged policy could

very well work to the benefit of women in certain districts.                                     In

short,     the    results     will       vary       by   district      and         by     region;

nationwide patterns are inadequate to justify an inference of

discrimination at the subnational level.                         The variable results

produced by this particular practice -- which is neutral on its

face and supported by an obvious business justification -- are

precisely what Wal-Mart envisioned as inimical to class action

commonality.

     The fact that each of plaintiffs’ key claims ultimately

reduces     to    an    allegation        of        cabined     discretion         should       be

unsurprising.          There is nothing inherently discriminatory about

delegated        discretion.         Companies           must     rely        on        delegated

discretion.        It would be virtually impossible, as a matter of

sheer    practicality,       for     a   company         as   extensive       in        scope    as

Family    Dollar       to   micromanage        store      manager      compensation             via

centralized policies.              It is simply unfathomable that Family

Dollar’s    corporate        headquarters           could     afford     to    dictate          the

compensation paid to managers in each of its 7,000 stores.                                  Some

discretion is intrinsic to this type of national business.                                      See

id. at 2554 (noting that an employment policy of decentralized

decision-making is “a very common and presumptively reasonable

way of doing business”).



                                               63
       The inference is therefore inescapable that Family Dollar

relies on middle managers -- who have greater and more intimate

knowledge      of    facts     on    the     ground    than       the     members       of    top

management      --     to    attend     to     the    details        of     store       manager

compensation within the broad constraints imposed by corporate

headquarters.         Family Dollar expects its intermediate executives

to be more than mere automatons.                    See Watson v. Fort Worth Bank

&    Trust,   487     U.S.    977,    990    (1988)     (noting         that     “it    may    be

customary     and     quite    reasonable          simply    to    delegate       employment

decisions to those employees who are most familiar with the jobs

to    be   filled      and     with    the     candidates          for     those        jobs”).

Plaintiffs’         inventive       pleadings       simply        cannot       disguise       the

economic      and    managerial       realities       associated          with    running       a

national      corporation.           “[L]ocal       discretion       cannot       support      a

company-wide class no matter how cleverly lawyers may try to

repackage local variability as uniformity.”                              Bolden v. Walsh

Constr. Co., 688 F.3d 893, 898 (7th Cir. 2012).                            The presence of

such variability makes it difficult to establish the commonality

necessary      for     class    action        treatment       because,          among     other

things, business managers in many regions and districts will

exercise delegated discretion in favor of the plaintiff class.

       Plaintiffs’ argument, therefore, continues to boil down to

the    contention      that     an    “exercise        of    discretion          results       in

disparities in pay based on gender.”                        J.A. 419.          Wal-Mart, of

                                              64
course,        found      challenges      based      on     such     a     decision-making

structure largely resistant to class action treatment.                                131 S.

Ct.    at   2555-56.           The   district       court    nicely      summarized       this

aspect      of    the    futility      analysis     when    it     concluded    that      “the

proposed amended complaint appears to be an attempt to recast

plaintiffs’ class claims simply to avoid dismissal under [Wal-

Mart],      but    even     the      allegations      in     the     amended    complaint

ultimately point to subjective, individualized decisions rather

than     pointing         to     any     uniform      company-wide           policy       that

discriminates against [female] Store Managers.”                          J.A. 417.

                                               2.

       Plaintiffs’          amended       complaint         is     deficient        for     an

additional reason: the evidence plaintiffs have offered fails to

satisfy the standards suggested by Wal-Mart.                             As the Court in

that    case      made    clear,       “Rule   23    does    not     set    forth    a    mere

pleading standard.”              131 S. Ct. at 2551.                Rather, “[a] party

seeking class certification must affirmatively demonstrate his

compliance with the Rule -- that is, he must be prepared to

prove that there are in fact . . . common questions of law or

fact, etc.”         Id. (emphasis omitted); see also Comcast Corp. v.

Behrend, 133 S. Ct. 1426, 1432 (2013).                           In light of the fact

that plaintiffs have already “conducted significant discovery in

this     and      other     similar      cases      against        defendant    in       other

jurisdictions,” J.A. 415, the data that they have gathered is

                                               65
inadequate to satisfy the evidentiary standard imposed by Wal-

Mart.

     Wal-Mart emphasized that “left to their own devices most

managers    in    any    corporation         .    .   .   would      select       sex-neutral,

performance-based criteria for hiring and promotion that produce

no   actionable         disparity       at       all.”         131     S.    Ct.    at   2554.

Furthermore, with respect to a large national corporation like

Wal-Mart or Family Dollar, “it is quite unbelievable that all

managers would exercise their discretion in a common way without

some common direction.”                Id. at 2555.             And while Wal-Mart did

not foreclose the theoretical possibility that such coordinated,

discriminatory,          discretionary            activity        might       one     day    be

demonstrated, it concluded that the “statistical and anecdotal

evidence” in that case fell “well short.”                        Id.

     Here, the only real evidence that plaintiffs have provided

is numerical in nature, and it fails for the same reason as that

in Wal-Mart.       The amended complaint supplies figures purporting

to show “statistically significant disparities in what Family

Dollar pays men and women for the same job of Store Managers.”

Am. Compl. ¶ 24.            Plaintiffs point to an alleged salary gap

amounting    to    approximately         $2,500          per    year    between      2008    and

2010,   which     they    peg     at    twenty-two         to    twenty-three        standard

deviations       above    “what    would         be   expected       in     the    absence    of

gender-based discrimination” when “controll[ing] for non-gender

                                             66
factors that may affect pay such as store, district, region,

store type, store size, store location, store volume, education

and prior work history, and length of service.”                   Id. ¶¶ 24-27.

But    this   lengthy     enumeration     of    “controlled”    elements    itself

belies plaintiffs’ claim that any alleged discrepancy in store

manager pay is the product of a rigid collection of centralized

corporate policies.

       Plaintiffs’ statistical evidence is insufficient under Wal-

Mart on two counts, both stemming from the fact that it is

national in scope.          First and fundamentally, the Supreme Court

specifically underscored the “failure of inference” inherent in

attempting     to    draw   particularized        conclusions    from   national

statistical data.         131 S. Ct. at 2555.         That is, “[i]nformation

about disparities at the regional and national level[s] does not

establish the existence of disparities at individual stores,” or

within individual districts, “let alone raise the inference that

a     company-wide    policy      of   discrimination     is    implemented     by

discretionary decisions at the store and district level.”                      Id.

(internal quotation marks omitted); see also Bolden, 688 F.3d at

896 (“If [the defendant employed] 25 superintendents, 5 of whom

discriminated in awarding overtime, aggregate data would show

that black workers did worse than white workers -- but that

result    would     not   imply    that   all    25   superintendents      behaved

similarly, so it would not demonstrate commonality.”); Bennett

                                          67
v.    Nucor   Corp.,      656    F.3d    802,       815-16       (8th      Cir.      2011)     (“[A]

bottom-line         [statistical]             analysis           is        insufficient            to

demonstrate        that    any   disparate          treatment         or   disparate          impact

present in one department was also common to all the others.”).

       Second,      nationwide       data       fails       to     account           for     various

nondiscriminatory          conditions         that    may    have       produced           divergent

results from one area to another.                       For instance, as Wal-Mart

tells us, “[s]ome managers will claim that the availability of

women, or qualified women, or interested women, in their stores’

area does not mirror the national or regional statistics.”                                        131

S. Ct. at 2555.             The controls that plaintiffs claim to have

factored into their statistical conclusions here do not account

for those factors, nor could their crude statistics possibly

comprehend the myriad other conceivable circumstances that may

affect comparative compensation levels in specific locales.

                                               B.

       Plaintiffs have thus failed to provide “convincing proof”

of any policy that discriminates in a “companywide” manner; as a

result, “they have not established the existence of any common

question.”         Wal-Mart,       131    S.    Ct.     at       2556-57.            The     amended

complaint     suffers       from   the     same      fatal       flaw      as    the       original,

rendering plaintiffs’ attempt to reboot the litigation futile,

and    rendering      the    district         court’s        decision           to    refuse      the

amendment     on    that    ground       an    entirely       proper        exercise         of   its

                                               68
discretion.         Even without reaching the patent inadequacies of

the amended complaint under Rule 23(b) -- including the obvious

further difficulties raised by plaintiffs’ request for backpay

in light of the Court’s remedial holding in Wal-Mart, 131 S. Ct.

at   2557    --     the    entire       class        action      fails       for     a    lack    of

commonality under Rule 23(a)(2).

     It     bears    reemphasis          that       the     employment        decision-making

structure    at     issue       here    --     in     which      a    business       articulates

certain     centralized          policies       but       also       imparts    to       mid-level

managers some discretion to implement them -- is not only common

to Wal-Mart and Family Dollar.                       It is typical of most national

corporations.        See McReynolds v. Merrill Lynch, Pierce, Fenner &

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”).                 The result is a substantial variety of

outcomes attributable to the disparate management philosophies,

priorities,       and     circumstances         of     each      decentralized           decision-

maker -- exactly what one would expect in a company staffed by

human beings.

     The     majority          fails    even     to       suggest      why     the       challenged

policies     might        be     legally       suspect.          Indeed,       the       corporate

guidelines targeted by plaintiffs -- such as the use of salary

ranges,     the     purported          bonuses        for    lateral         hires,       and    the

inclusion of prior experience and performance as factors in pay

                                                69
decisions -- are among the most anodyne in the corporate world.

Permitting a class action suit to proceed on such a slender

basis     exposes         a    large      swath          of   companies     to      class-action

liability simply for adopting perfectly ordinary, plain vanilla

policies.      These           policies        do,       however,     share      one    relevant

feature: they delegate discretion.

      Wal-Mart        recognized            the      difficulty        of     accounting        for

regional    discrepancies             and      individual       exercises        of    discretion

through     the      blunderbuss            of      class     action    litigation.             The

gravamen    of    that         decision        is    that     nationwide      classes        face    a

steep climb to certification under Rule 23.                             131 S. Ct. at 2554

(holding      that    under         the     circumstances           discussed,        “[a]    party

seeking to certify a nationwide class will be unable to show

that all the employees’ Title VII claims will in fact depend on

the     answers      to       common      questions”).              Given     the      managerial

nightmares        encountered             by     district        judges       assigned        these

unwieldy      pieces          of   litigation,           no   other   conclusion        would       be

possible. 2


      2
       The concurring opinion of my good colleague, which ignores
this reality, is notable chiefly for its silences. It advances
an analysis even more cursory than that of the majority on the
theory that some vague, soothing assurance about ordinary Rule
15 motions will obscure the extraordinary steps that have been
taken.   Granted, it is in the nature of a concurrence to be
brief in relative terms, but surely some revelatory engagement
with appellee’s claims should be forthcoming.     The concurrence
neglects to address which of the district court’s factual
(Continued)
                                                    70
      It   is    also    important   to   note   that   denial   of   nationwide

class certification here would not leave plaintiffs without a

path forward.          Each could continue to pursue a personal claim of

discrimination, as the district court made clear.                     J.A. 420.

Or, should plaintiffs choose to take a different tack on remand,

class certification could perhaps be suitable for more modest --

and   thus      more    manageable   --   groups,   such   as    district-level




findings were clearly erroneous, or which of its discretionary
judgments ran afoul of the abuse-of-discretion standard of
review.   It declines to say exactly what new information was
supposedly discovered during mediation, or why that information
was not known to plaintiffs’ counsel as a result of their
fifteen previous suits against Family Dollar.       It fails to
justify the irreconcilability of the various pleadings or the
changed thrust of the factual allegations contained therein. It
neglects to address the district court’s finding that this
entirely new case severely prejudiced defendant three years
after the filing of the original complaint.       It refuses to
explain why Wal-Mart’s commonality holding, by its plain
language, does not apply to middle managers. It further refuses
to explain why 500 vice presidents and district managers who
concededly made discretionary decisions within delegated ranges
are anything other than middle management, or why a system in
which discretion is channeled by broad corporate guidelines does
not fall within Wal-Mart’s literal terms. It does not state why
it is justifiable to rope regions and districts with progressive
hiring practices into nationwide litigation, or how this
national class action, with all its disparate and moving parts,
is supposed to be administered, or what the district court is
even supposed to do upon remand.         It fails, finally, to
illuminate for courts and litigants why this decision does not
subject every company in America with similarly unremarkable
policies to the prospect of class-action liability (and the
reality of interminable class certification disputes) merely for
existing. Perhaps my fine colleagues will some day provide some
answers to some of these questions, but for now they are doing
what football teams usually do on fourth down.

                                          71
clusters, where the differences in the circumstances faced by

each member may be less pronounced.            See Bolden, 688 F.3d at 899

(denying     class   certification       but     suggesting       that   smaller

subclasses might be certifiable).            While plaintiffs have chosen

to bite off more than they can chew thus far, smaller morsels

may prove more palatable in the end.



                                      V.

     In    holding    Wal-Mart       inapplicable          to     the    manifold

discretionary    decisions     of   middle     managers,    the    majority   has

hollowed out that case.        Moreover, the district court engaged in

a sound exercise of discretion on any one of the three grounds

commonly recognized as reasons for denying leave to amend.                    The

majority’s decision is unjustifiable under the straightforward

application of governing precedent.

     In a larger sense, though, the majority’s ruling is more

damaging even than the disregard of precedent.                  It impairs the

judicial process in three significant ways.                First, it prolongs

disputes far past the point of reason.            It requires companies to

defend completely different cases no less than three years after

the filing of the complaint.         No other court has gone this far.

In so doing, the majority fails to address even the rudimentary

managerial    realities   of    modern     national    corporations.          The



                                      72
more’s 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    an    utterly    unwieldy,      unmanageable       piece      of

litigation.     It is a truism that unpleasant tasks roll downhill,

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

abuse of discretion standard in this context for a reason.                        The

district     judge     is     best    situated       to   make     the     type     of

determinations at issue on this appeal.               See Amchem Prods., Inc.

v. Windsor, 521 U.S. 591, 630 (1997) (Breyer, J., concurring in

part and dissenting in part) (noting in the class action context

that a district court “is far more familiar with the issues and

litigants than is a court of appeals”).                   Given the standard,

this is a rude reversal, as it would be even for a trial court

opinion less well reasoned than the one reversed.

     Third, the majority has subverted a Supreme Court decision

that,   whether      congenial   or   not,    was    written     precisely    for    a

dispute such as this one.              We count upon district courts to

faithfully    apply     our   decisions      and    precedents.      The     Supreme

Court should be able to count upon us to do the same.

     I yield to no one in my respect for the truly fine judges

in the majority.        But let this much be clear.               Even the above

unfortunate consequences pale in comparison to the incentives

                                        73
today’s ruling creates for future parties.                  The plaintiffs in

this    case   played   fast   and   loose    with    the    district     court,

offering not an “amended complaint,” but rather a completely

contradictory    one.     They   assumed     that    the    allegations    in   a

complaint need bear no discernible relationship to any external

reality but reflect only the limitless malleability of lawyers’

verbal skills.      The district court recognized that the system

was being gamed and moved to instill respect for the integrity

of the process over which it had the duty to preside.                   That we

should not only reverse the trial court, but do so as clearly

erroneous and an abuse of discretion, is simply wrong.

       The abuse was committed on appeal.




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