NAME SEARCHED: Mort, Inc PWM BIS-RESEARCH performed due diligence research in accordance with the standards set by AML Compliance for your business. We completed thorough searches

NAME SEARCHED: Mort, Inc PWM BIS-RESEARCH performed due diligence research in accordance with the standards set by AML Compliance for your business. We completed thorough searches on your subject name(s) in the required databases and have attached the search results under the correct heading below. Significant negative media results may require escalation to senior business. Legal and Compliance management. Also. all accounts involving PEPs must be escalated Search: RIX: Result: z No I Iii O Not Regtoml Click here for results: I. RUC Results Reviewer Comments (as necessary): No RDC Alert • hit PCR ®No Hit O Not Required El Hit II. PCR Results No PCR Alert BIS III. Negative Media No Information Found O Yes No Not Required IV. Non-Negative Media No Information Found V. Other Language Media No Information Found MB Results? El Yes O No O Not Required VI. D&B Information Found (Please see attached) Smartlinx Results? El Yes O No El Not Required VII. Stnartlinx Information Found (Please see attached) Court Cases 23 Review by Legal May be Required O No Resins O Search not required VIII. Court Cases Information Found (Please see attached) Prcpaied by: Akshay Davera Date: 10/01/2015 Research Analyst Instructions: 1. Review and confirm that all results are returned for your client. 2. Please note that you are still required to perform any Martindale -Hubbell search (if applicable) on each search subject. We have attached the web link below for your convenience:Martindale-Hubbellhttp://www.martindale.com/xp/Nlariindale/home.xml 3. As needed, provide comment for any negative results. 4. If applicable, please obtain clearance from Compliance for all alerts. 5. Save any changes you make to this document and attach file to your KYC. Please note: Submission of a signed KYC is your confirmation that you have fully reviewed the research documents. For internal use only SONY GM_00056796 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) CONFIDENTIAL OB-SDNY-0019620 EFTA_00 167366 EFTA01295633 Page 2 OFAC RESULTS RDC: Not Alerts OBOI PCR: Mort, Inc BIS RESULTS: Negative Media: No Information Found Non-Negative Media: No Information Found Other Language Media: No Information Found Public Record: Mort, Inc City:St, Thomas Country: NArgin Islands, U.s. NCA customised Auto-Closed No-Hit 02/10/2015 1 OF 2 RECORD(S) Comprehensive Business Report Report Created:10.01-2015 6:17 PM EST I FOR INFORMATIONAL PURPOSES ONLY I Copyright@ 2015 LexisNexis. All rights reserved. Search Terms - company(Mort. Inc) radius(15) Executives - Current (0) Incorporation/SOS (1) Operations/Sites (2) Sales (0) Licenses (0) URLs (0) Real Property - Current (1) Real Property - Prior (0) MVRs - Current (0) MVRs • Prior (1) Watercraft • Current (0) Watercraft • Prior (0) Aircraft - Current (0) Aircraft - Prior (0) Bankruptcy Filings (0) Judgments & Liens Filings (0) UCC Filings (0) Executives - Prior (2) Registered Agents (1) Name Variations (1) Possible Employees (1) Person Associates (0) Business Associates (2) TINs (0) Possible Connected Parent Company (0) Industry Information (0) Business (4) View Al Sources (9) For internal use only SDNY_GM_00056797 CONFIDENTIAL - PURSUANT TO FED. R.WN(FIDENTIAL DB-SDNY-0019621 EFrA_00167367 EFTA01295634 Page 2 Business Summa Name Address MORT, INC. 820 W Spruce St Rawlins, WY 82301-5440 Carbon County (Most Reconi Listing) osbirzoi2 - 09292015 (E) (Business) LexID Established TIN 0001-0078-5323 2004 (11 Years in Business) At a Glance Real Property 1 UCC Debtor 0 Personal Property 0 Bankruptcy 0 Secured Assets 0 Judgments/Liens 0 Executives 0 Foreclosure/Notice of Default 0 Name Variations -1 name variations found NO. 1.NAME MORT. INC. TINs - 0 TINs found Business Profile Executives: Current - 0 executive(s) found lncor oration/SOS (1 active, 0 other) 1NO. NAME FILING TYPE STATUS FILING DATE FILING NO. STATE 1. MORT, INC. CORPORATION - BUSINESS ACTIVE 03125/1999 1999- 000343534 WY Additional Details Business Type: CORPORATION -BUSINESS Business Status: ACTIVE Filing Type: FILING Expiration: PERPETUAL For Profit Unknown Foreign/Domestic: Domestic Origin: State of WY OperatingLocations - Showing 2 location(s) NO. ADDRESS METRO AREA PHONE 1. 502 W Spruce St Rawlins, WY 82301-5548 Carbon County CARBON COUNTY (Business) 2. 820 W Spruce St Rawlins, WY 82301-5440 Carbon County CARBON COUNTY (Most Recent Listng) 05&012012.091292015 8 (Business) Sales - 0 record(s) found For internal use only SDNY_GM_00056798 CONFIDENTIAL - PURSUANT TO FED. R.cON(FIDENTIAL DB-SDNY-00 19622 EFTA_00 167368 EFTA01295635 Page 3 Parent Company - 0 record(s) found Industry Information - no information found Licenses - 0 licenses found URLs - 0 URLs found Bankruptcy (0 active, 0 closed) Judgments/Liens (0 filings) UCC Filings (0 debtor, 0 creditor) Real Property (1 current, 0 prior NO. 1. 1Current ADDRESS STATUS 820 W Spruce St Rawlins. WY 82301-5440 Carbon County Source: B Owner 1 Information MORT INC PO Box 357 Rawlins. WY 82301-0357 Carbon County PURCHASE PRICE SALE PRICE STATE WY Legal Information Parcel Number 21871733100400 Assessment Year: 2014 Recording Date: 02/29/2008 Document Type: ASSESSOR Assessed Value: $18,654.00 Market Land Value: 310,212.00 Total Market Value: 5196.364.00 Type of Address: COMMERCIAL OFFICE (GENERAL) Personal Property (0 current, 1 prior) NO. TYPE STATUS YEAR/MAKE MODEL VIN 1. MVR Prior 2004 Lexus RX 330.4 Dr Wagon Sport Utility Vehicle Information VIN- Year 2004 Make. Lexus Model: RX 330 Style: 4 Dr Wagon Sport Utility Base Price: $37,000.00 For internal use only SDNY_GM_00056799 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(FIDENTIAL DB-SDNY-00 19623 EFTA_00 167369 EFTA01295636 Page 4 Source Information Data Source: GOVERNMENTAL Registrant 1 MORT. INC. 502 W Spruce St Rawlins, WY 82301-5548 Carbon County Jurisdiction: WY License Plate: Original Registration Date. 05/1912008 Registration Date. 03/24/2010 Registration Expiration Date: 03/31/2011 Associates Executives: Prior - 2 prior executive(sl found NO. NAME TITLE 1. Mortensen, Tammy DIRECTOR (03/25/1999) 2. Mortensen, Troy L DIRECTOR (03/25/1999) Registered Agents -1 registered agent(s) found NO. NAME ADDRESS STATE DATE S 1. Mortensen, Tammy K Wyoming 03/25/1999 - 09/102015 Possible Employees - 0 current, 1 prior employees found NO. NAME ADDRESS STATUS DATE S 1. Mortensen. Tammy N/A Prior 03/25/1999 Person Associates - 0 other person associates found Possible Connected Business - 4 businesses found NO. NAME ADDRESS 1. MORT INC PO Box 357 Rawlins. WY 82301-0357 Carbon County 2. MORT INC 2222 Dunblane Dr Rawlins, WY 82301-4236 Carbon County 3. MORT INC 603 W Spruce St Rawlins, WY 82301-5435 Carbon County 4. MORT. INC. 1325 High St Rawlins, WY 82301-4642 Carbon County For internal use only SDNY_GM_00056800 CONFIDENTIAL - PURSUANT TO FED. R.Q11;)N(FIDENTIAL DB-SDNY-00 19624 EFTA_00 167370 EFTA01295637 Page 5 Business Associates - 2 business associates found NO. NAME ADDRESS ROLE 1. MORT INC PO Box 357 Rawlins, WY 82301-0357 Carbon County Real Property 2. MORT INCORPORATED 2222 Dunblane Dr Rawlins, WY 82301.4236 Carbon County Real Property Sources All Sources 9 Source Documents Real Property 4 Source Documents Personal Property 2 Source Documents Corporate Filings 1 Source Documents Other Directories 1 Source Documents Experian Credit Risk DB 1 Source Documents Key: A High Risk Indicator. These symbols may prompt you to investigate further. / Moderate Risk Indicator. These symbols may prompt you to investigate further. r- General Information Indicator. These symbols inform you that additional information is provided. to0 The most recent telephone listing as reported by Electronic Directory Assistance. Wireless Phone Indicator. These symbols indicate a cell phone number. ® Residential Phone Indicator. These symbols indicate a residential phone number. Business Phone Indicator. These symbols indicate a business phone number. ® Shared Phone Indicator. These symbols indicate the phone number may be shared between wireless and landline service. (E.) FAX Indicator. These symbols indicate a FAX number. Government Phone Indicator. These symbols indicate a government phone number. Important: The Public Records and commercially available data sources used on reports have errors. Data is sometimes entered poorly. processed imamate/ and is generally not free from doled. This system should not be relied upon as definitively accurate. Before retying on any dada this system supplies, it should be independently verified. For Secretary of State documents * the foloviing data is for information purposes only and is not an official record. Certified copies may be obtained horn that VuRridual slates Department of State. Your DPPA Permissible Use is: Debt Recovery/Fraud Your GLBA Permissible Use Is: Legal Compliance Copyright O 2015 Lexistrexis, a derision of Reed Elsevier Inc. AI Rights Reserved. 2 OF 2 RECORD(S) Comprehensive Business Report Report Created:10-01-2015 6.17 PM EST I FOR INFORMATIONAL PURPOSES ONLY I Copyright O 2015 LexisNexis, All rights reserved. Search Terms - company(Mort. Inc) radius(15) Executives • Current (0) Incorporation/SOS (0) Operations/Sites (1) Sales (0) Licenses (0) URLs (0) Real Property - Current (0) Real Properly • Prior (0) MVRs - Current (0) MVRs - Prior (0) Watercraft - Current (0) Watercraft - Prior (0) Aircraft - Current (0) Aircraft - Prior (0) Bankruptcy Filings (0) Judgments & Liens Filings (0) UCC Filings (0) Executives - Prior (0) Registered Agents (1) Name Variations (1) Possible Employees (1) Person Associates (0) Business Associates (0) TINs (0) For internal use only SDNY_GM_00056801 CONFIDENTIAL - PURSUANT TO FED. R.QQN(FIDENTIAL DB-SDNY-00 19625 EFTA_00167371 EFTA01295638 Page 6 Possible Connected Business (4) View AII Sources (0) Business Summa Name Address Phone MORT INC / (Company is inactive) 603 W Spruce St Rawlins, WY 82301-5435 Carbon County LexID Established TIN 0001-0078-5723 2011 (4 Years in Business) Parent Company (0) Industry Information (0) At a Glance Real Property 0 UCC Debtor 0 Personal Property 0 Bankruptcy 0 Secured Assets 0 Judgmentstiens 0 Executives 0 Foreclosure/Notice of Default 0 Name Variations -1 name variations found NO. 1. MORT INC NAME TINS - 0 TINS found Business Profile Executives: Current - 0 executive(s) found Incorporation/SOS (0 active, 0 other) 0 eratin Locations - Showing 1 location s NO. ADDRESS METRO AREA PHONE 1. 603 W Spruce St Rawlins. WY 82301-5435 Carbon County CARBON COUNTY Sales 0 record(s) found Parent Company - 0 record(s) found Industry Information - no information found Licenses - 0 licenses found URLs - 0 URLs found Bankruptcy (0 active, 0 closed) Judgments/Liens (0 filings) UCC Filings (0 debtor, 0 creditor) Real Property (0 current, 0 prior) Personal Property (0 current, 0 prior) For internal use only CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL SDNY_GM_00056802 DB-SDNY-00 19626 EFTA_00 167372 EFTA01295639 Page 7 Associates Executives: Prior - 0 prior executive(s) found Registered Agents -1 registered agent(s) found NO. 1. NAME ADDRESS STATE DATE(S) Possible Employees - 0 current, 1 prior employees found NO. NAME ADDRESS STATUS DATE(S) 1. Mortensen, Tammy K N/A Prior 03/25/1999 Person Associates - 0 other person associates found Possible Connected Business - 4 businesses found NO. NAME ADDRESS 1. MORT INC PO Box 357 Rawlins, WY 82301-0357 Carbon County 2. MORT INC 2222 Dunblane Dr Rawlins. WY 82301-4236 Carbon County 3. MORT, INC. 820 W Spruce St Rawlins. WY 82301-5440 Carbon County 4. MORT. INC. 1325 High St Rawlins, WY 82301-4642 Carbon County Business Associates - 0 business associates found Sources Key: A High Risk Indicator. These symbols may prompt you to investigate further. / Moderate Risk Indicator. These symbols may prompt you to investigate further. 116- General Information Indicator. These symbols inform you that additional information is provided. 40 The most recent telephone listing as reported by Electronic Directory Assistance. 4it Wireless Phone Indicator. These symbols indicate a cell phone number. Residential Phone Indicator. These symbols indicate a residential phone number. Business Phone Indicator. These symbols indicate a business phone number Shared Phone Indicator. These symbols indicate the phone number may be shared between wireless and landline service. FAX Indicator. These symbols indicate a FAX number. Government Phone Indicator. These symbols indicate a govemment phone number. Important: The Public Records end oornmercially washable dela sources used on reports have errors. Data is sometimes entered phony, processed incorrectly and is generally not free from detect This system should 001 be relied upon as definitively accurate. Before relying on any data this system supplies. it should be independently verified. For Secretary of Slate documents, the focloyring data is for information purposes only and is not an official record. Declined copies may be obtained from that autnidual stales Department of Stale. For internal use only SDNY_GM_00056803 CONFIDENTIAL - PURSUANT TO FED. R.QQN(FIDENTIAL DB-SONY-0019627 EFTA_00 167373 EFTA01295640 Page 8 Your DPPA Permissible Use is. Debt Recovery/Fraud Your MBA Permissible Use is: Legal Compliance Copyright 0 2015 LexisNexis. a division or Reed Ebevier Inc Al Rights Reserved. D&B: Copyright 2015 Dun & Bradstreet, Inc. July 8, 2015 Dun's Decision Makers View the DMI Record Glass City Mort Inc 2558 Parkway Plz Maumee, OH 43537-3772 United States BUSINESS ADDRESS: 2558 Parkway Plz, Maumee, OH 43537-3772, United States MSA: Toledo, OH - 8400 COUNTY: Lucas COMPANY IDENTIFIERS DUNS NUMBER: EXECUTIVES Principal: Donald McCorkle, Ill, Prin Donald McCorkle, III, Prin DESCRIPTION INDUSTRY TYPE: Retail Trade; Ret Paint/Glass/Wallpaper Copyright 2015 Dun & Bradstreet, Inc. For internal use only SDNY_GM_00056804 CONFIDENTIAL - PURSUANT TO FED. R.QQN(FIDENTIAL DB-SDNY-00 19628 EFTA_00 167374 EFTA01295641 Page 9 Dun's Market Identifiers Plus, 07/05/15, Mort's Inc July 5, 2015 Dun's Decision Makers View the DMI Record Mort's Inc P O Box 400 Latimer, IA 50452 United States BUSINESS ADDRESS: 1451a Gull Ave, Latimer, IA 50452, United States COUNTY: Franklin COMPANY IDENTIFIERS DUNS NUMBER: 02-207-9289 EXECUTIVES President: Seth Morton, President Seth Morton, President Treasurer: Administrative Secretary: Bookkeeper: Tracy Morton, Treasurer Tracy Morton, Treasurer Priscilla M Eddy, Secretary Priscilla M Eddy, Secretary Norma Allen, Bookeeper Norma Allen, Bookeeper DESCRIPTION For internal use only SDNY_GM_00056805 CONFIDENTIAL - PURSUANT TO FED. R.CON(FIDENTIAL DB-SDNY-00 19629 EFTA_00 167375 EFTA01295642 Page 10 Dun's Market Identifiers Plus, 07/05/15, Mort's Inc INDUSTRY TYPE: Construction; Water Pump Installation Plumbing Contractor Sewer Construction & Whol & Installation Water Treatment Equipment Copyright 2015 Dun & Bradstreet, Inc. June 28, 2015 Dun's Decision Makers View the DMI Record Mort's Inc 505 Industrial Park Rd Iowa Falls, IA 50126-9500 United States BUSINESS ADDRESS: 505 Industrial Park Rd, Iowa Falls, IA 50126-9500, United States COUNTY: Hardin ***** * * " * COMPANY IDENTIFIERS DUNS NUMBER: EXECUTIVES Manager: Deaune Sudpelgte, Manager Deaune Sudpelgte, Manager DESCRIPTION INDUSTRY TYPE: Construction; Plumbing & Heating Contractor Copyright 2015 Dun & Bradstreet, Inc. For internal use only SDNY_GM_00056806 CONFIDENTIAL - PURSUANT TO FED. R.CON(FIDENTIAL DB-SDNY-00 19630 EFTA_00 167376 EFTA01295643 Page 11 dun&bracstreet Federal Employer Identification Numbers June 7, 2015 MORTS INC 505 INDUSTRIAL PARK RD IOWA FALLS, IA 50126 UNITED STATES COMMUNICATIONS TELEPHONE: COMPANY IDENTIFIERS FEIN: SOURCE REFERENCE NAME: MORT'S INC HEADQUARTER/PARENT DUNS NUMBER: EXECUTIVES TOP CONTACT: Manager Deaune Sudpelgte MARKET AND INDUSTRY SIC CODES: CROSS REFERENCE: PRIMARY BUSINESS NAME: Mort's Inc ADDITIONAL BUSINESS NAME: Mort's Plumbing & Heating LOAD-DATE: September 28, 2015 LEGAL RESULTS: Court Cases: QUINTON BROWN; JASON GUY; ALVIN SIMMONS; SHELDON SINGLETARY; GERALD WHITE; RAMON ROANE; JACOB RAVENELL, individually and on behalf of the class they seek to represent, Plaintiffs - Appellants, v. NUCOR CORPORATION; NUCOR STEEL-BERKELEY, Defendants - Appellees. For internal use only SDNY_GM_00056807 CONFIDENTIAL - PURSUANT TO FED. R.Q;;NE IDENTIAL DB-SDNY-0019631 EFTA_00 167377 EFTA01295644 Page 12 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793: 99 Empl. Prac. Dec. (CCH) P45,306 No. 13-1779 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 785 F.3d 895; 2015 U.S. App. LEXIS 7739; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306; 91 Fed. R. Serv. 3d (Callaghan) 1169 September 17, 2014, Argued May 11, 2015, Decided PRIOR HISTORY: r ij Appeal from the United States District Court for the District of South Carolina, at Charleston. (2:04-cv-22005-CWH). C. Weston Houck, Senior District Judge. Brown v. Nucor Corp., 576 F.3d 149, 2009 U.S. App. LEXIS 17643 (4th Cir. S.C., 2009) DISPOSITION: VACATED IN PART, AND REMANDED WITH INSTRUCTIONS. CASE SUMMARY: OVERVIEW: HOLDINGS: [1]-Certification of a class of black steel workers who alleged racial discrimination at a South Carolina plant was warranted for allegations of discriminatory job promotion practices because statistical and substantial anecdotal evidence suggested discrimination in promotion decisions in multiple departments for purposes of commonality under Fed. R. Civ. P. 23(a)(2): [2]-Decertification of the class was an abuse of discretion because the workers' direct evidence sufficiently showed common claims of disparate treatment and disparate impact under 42 U.S.C.S. § 2000e- 2(k). and additionally. the statistical disparity actually exceeded two standard deviations: [3]-Reconsideration of the predominance requirement under Rule 23(b)(3) was error, as it was not part of the remand order and there were no new facts or legal precedent that justified revisiting that determination. OUTCOME: Judgment vacated in part; matter remanded with instructions to recertify promotions class. CORE TERMS: promotion, statistical, commonality, plant, predominance, anecdotal, supervisor, disparity, hostile, class certification, certification, work environment, statistical evidence, bidding, statistics, class action, certify, discriminatory, plant-wide, beam mill, black workers, class members, disparate treatment, opening, bidder, pool, standard deviations, manager, disparate impact. general manager LexisNexis(R) Headnotes For internal use only SDNY_GM_00056808 CONFIDENTIAL - PURSUANT TO FED. R.QCIANI(F IDENTIAL DB-SDNY-00 19632 EFTA_00 167378 EFTA01295645 Page 13 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, n; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 Civil Procedure > Class Actions > Certification Civil Procedure > Class Actions > Appellate Review Civil Procedure > Appeals > Remands Civil Procedure > Appeals > Standards of Review > De Novo Review Civil Procedure > Appeals > Standards of Review > Abuse of Discretion [HN1]Appellate courts typically review a district court's certification order for abuse of discretion. The appellate courts review de novo, however, whether a district court contravenes a prior express or implicit mandate issued by the appellate court. Civil Procedure > Appeals > Remands Civil Procedure > Class Actions > Decertification [HN2]As to the question of whether a district court's decertification order violated the appellate court's mandate, an "extraordinary" exception to the mandate rule exists when there is a showing that controlling legal authority has changed dramatically. Moreover, Fed. R. Civ. P. 23(c)(1)(C) provides a district court with broad discretion to alter or amend a prior class certification decision at any time before final judgment. Civil Procedure > Class Actions > Prerequisites > Commonality [HN3]At the very least, Wal-Mart recalibrated and sharpened the lens through which a court examines class certification decisions under Fed R. Civ. P. 23(a)(2), an impact plainly manifested by the number of certifications overturned in its wake. Civil Procedure > Class Actions > Certification Civil Procedure > Class Actions > Appellate Review Civil Procedure > Appeals > Appellate Jurisdiction > Lower Court Jurisdiction [HN4] Class certification orders are not final judgments impervious to lower court review and revision. Civil Procedure > Appeals > Standards of Review > Abuse of Discretion Civil Procedure > Class Actions > Certification Civil Procedure > Class Actions > Appellate Review [HN5]The law gives broad leeway to district courts in making class certification decisions, and their judgments are to be reviewed by the court of appeals only for abuse of discretion. A district court abuses its discretion when it materially misapplies the requirements of Fed. R. Civ. P. 23. A district court per se abuses its discretion when it makes an error of law or clearly errs in its factual findings. Civil Procedure > Class Actions > Prerequisites > Commonality [HN6] Fed. R. Civ. P. 23(a)(2) establishes that a class action may be maintained only if "there are questions of law or fact common to the class." Civil Procedure > Class Actions > Prerequisites > General Overview Evidence > Procedural Considerations > Burdens of Proof > Allocation [HN7]Wal-Mart reaffirmed existing precedent that courts must rigorously examine whether plaintiffs have met the prerequisites of Fed. R. Civ. P. 23(a) at the certification stage, an For internal use only SDNY_GM_00056809 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(FIDENTIAL DB-SONY-0019633 EFTA_00 167379 EFTA01295646 Page 14 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 analysis that will often overlap with the merits of a claim. But as the Court later clarified, Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Instead, the merits of a claim may be considered only when relevant to determining whether the Rule 23 prerequisites for class certification are satisfied. Evidence > Procedural Considerations > Weight & Sufficiency Civil Procedure> Class Actions > Prerequisites > General Overview [HN8] While an evaluation of the merits to determine the strength of the plaintiffs' case is not part of a Fed. R. Civ. P. 23 analysis, the factors spelled out in Rule 23 must be addressed through findings, even if they overlap with issues on the merits. Civil Procedure> Class Actions > Prerequisites > General Overview Evidence > Procedural Considerations > Weight & Sufficiency [HN9] Fed. R. Civ. P. 23 is not a mere pleading standard. Far from it. A court should engage the merits of a claim only to the extent necessary to verify that Rule 23 has been satisfied. Evidence > Procedural Considerations > Weight & Sufficiency Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview [HN10] Of course, it belabors the obvious to observe that the alternative benchmark is a less precise measure than actual bidding data to prove discrimination. It is also clear, however, that plaintiffs may rely on other reliable data sources and estimates when a company has destroyed or discarded the primary evidence in a discrimination case. More than two decades of judicial precedent affirm as much. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Statistical Evidence Civil Procedure> Class Actions > Prerequisites > Commonality [HN11] The critical question is not whether the data used is perfect for purposes of establishing commonality for class certification in a discrimination matter, but instead whether it is reliable and probative of discrimination. To that end, a court must examine whether any statistical assumptions made in the analysis are reasonable. Civil Procedure> Class Actions > Prerequisites > Commonality Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Statistical Evidence [HN12] An incremental reduction in probative value - which is a natural consequence of the use of proxy data - does not itself render a statistical study unreliable in establishing a question of discrimination common to the class. Indeed, to conclude otherwise would undermine prior precedent, rendering plaintiffs unable to bring a statistics-based employment discrimination claim after a company has intentionally or inadvertently destroyed actual applicant data. For internal use only SDNY_GM_00056810 CONFIDENTIAL - PURSUANT TO FED. R.QQN(FIDENTIAL DB-SDNY-00 19634 EFTA_00 167380 EFTA01295647 Page 15 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, n; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Statistical Evidence Civil Procedure > Class Actions > Prerequisites > Commonality [HN13] What matters for determining commonality under class certification in a discrimination matter is not whether an analysis makes assumptions based on imperfect data, but whether those assumptions are reasonable. Indeed, statistics are not certainties but are merely a body of methods for making wise decisions in the face of uncertainty. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Statistical Evidence [HN14] Statistical significance is not always synonymous with legal significance, such as in the discrimination context. Indeed, the usefulness of statistical evidence often depends on all of the surrounding facts and circumstances. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof Civil Procedure > Class Actions > Prerequisites > Commonality [HN15] Wal-Mart instructs that plaintiffs must present a common contention capable of being proven or disproven in "one stroke" to satisfy Fed., R. Civ. P. 23(a)(2)'s commonality requirement. Thus, a class-wide proceeding must be able to generate common answers that drive the litigation. For a claim based on discrimination in employment decisions, without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members' claims for relief will produce a common answer to the crucial question why was I disfavored. Semantic dexterity in crafting a common contention is not enough. Commonality instead requires the plaintiff to demonstrate that the class members "have suffered the same injury." As such, a court must examine whether differences between class members impede the discovery of common answers. Civil Procedure > Class Actions > Prerequisites > Commonality Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Statistical Evidence Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof [HN16] In the absence of a common job evaluation procedure, Wal-Mart held that statistical proof of employment discrimination at the regional and national level, coupled with limited anecdotal evidence from some states, is insufficient to show that the company maintained a "general policy of discrimination" present in each store where class members worked for purposes of commonality for class certification. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview Civil Procedure > Class Actions > Prerequisites > Commonality [HN17] A more centralized. circumscribed environment generally increases the uniformity of shared injuries, the consistency with which managerial discretion is exercised, and the For internal use only SDNY_GM_00056811 CONFIDENTIAL - PURSUANT TO FED. R.ctON(FIDENTIAL DB-SONY-0019635 EFTA_00 167381 EFTA01295648 Page 16 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 likelihood that one managers promotions decisions will impact employees in other departments for purposes of commonality for class certification. Civil Procedure > Class Actions > Prerequisites > Commonality Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview [HN18] Nothing in the Supreme Courts opinion suggests that single, localized operations must be analytically dissected into component departments for purposes of commonality for class certification in a discrimination context. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview Labor & Employment Law > Discrimination > Racial Discrimination > Proof > General Overview [HN19] It is difficult to fathom how widespread racial animus that consistently emphasized the inferiority of black workers bears no relationship to decisions whether or not to promote an employee of that race. Courts are not limited to the record in making such elementary judgments. Justice is not blind to history, and courts need not avert their eyes from the broader circumstances surrounding employment decisions, and the inferences that naturally follow. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview [HN20] Companies may investigate allegations of discrimination and take statements from employees. But when it comes to assessing the probative value of those statements - when weighed against the numerous declarations of employees who took the often grave risk of accusing an employer of a workplace violation - courts should proceed with eyes open to the imbalance of power and competing interests. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof [HN21] A plaintiff need not offer evidence that each person for whom it will ultimately seek relief was a victim of the employers discriminatory policy. Instead, a bifurcated class action proceeding allows for a "liability" stage to first determine whether an employer engaged in a pattern or practice of discriminatory conduct. Upon a finding of liability, a second damages stage allows for the consideration of which individuals were specifically harmed by the policy. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Statistical Evidence [HN22] For a liability determination in a disparate treatment claim, such a claim requires proof of a "systemwide pattern or practice" of discrimination such that the discrimination is For internal use only SDNY_GM_00056812 CONFIDENTIAL - PURSUANT TO FED. R.ctON(FIDENTIAL DB-SONY-00 19636 EFTA 00167382 EFTA01295649 Page 17 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 'the regular rather than the unusual practice." The required discriminatory intent may be inferred upon such a showing. Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof Labor & Employment Law > Discrimination > Disparate Impact > Proof > General Overview Labor & Employment Law > Discrimination > Racial Discrimination > Proof > Statistical Evidence [H N23] Unlike a disparate impact claim, a showing of disparate treatment does not require the identification of a specific employment policy responsible for the discrimination. A pattern of discrimination, revealed through statistics and anecdotal evidence, can alone support a disparate treatment claim, even where the pattern is the result of discretionary decision-making. To hold otherwise would dramatically undermine Title VII's prophylactic powers. A central purpose of Title VII is to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Labor & Employment Law > Discrimination > Disparate Impact > Proof > Burdens of Proof Labor & Employment Law > Discrimination > Disparate Impact > Proof > Statistical Evidence Labor & Employment Law > Discrimination > Disparate Treatment > Proof > General Overview [H N24] Statistics and anecdotes suggesting a pattern of discrimination are not enough alone to sustain a disparate impact claim. Disparate impact liability requires the identification of a specific employment practice that caused racially disparate results. 42 U.S.C.S. § 2000e-2(k). Unlike disparate treatment, the disparate impact theory does not require proof of improper intent to sustain a Title VII violation. Instead, liability is premised on facially neutral policies. Labor & Employment Law > Discrimination > Disparate Impact > Proof > Burdens of Proof [HN25] Under Wal-Mart, a mere showing that a policy of discretion has produced an overall disparity does not suffice for purposes of disparate impact. Instead, plaintiffs who allege such a policy of discretion must demonstrate that a "common mode of exercising discretion" actually existed throughout a company. Wal-Mart recognizes that in certain cases, giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory because an employees undisciplined system of subjective decisionmaking can have precisely the same effects as a system pervaded by impermissible intentional discrimination. For a nationwide class, Wal-Mart found that proving a consistent exercise of discretion will be difficult, if not impossible in some circumstances. For internal use only SDNY_GM_00056813 CONFIDENTIAL - PURSUANT TO FED. R.CON(FIDENTIAL DB-SDNY-00 19637 EFTA_00 167383 EFTA01295650 Page 18 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 Labor & Employment Law > Discrimination > Disparate Impact > Proof > Burdens of Proof Labor & Employment Law > Discrimination > Racial Discrimination > Proof > Burdens of Proof > Employee Burdens [HN26] For a localized, circumscribed class of workers at a single facility, a policy of subjective, discretionary decision-making can easily form the basis of Title VII liability under a disparate impact theory, particularly when paired with a clear showing of pervasive racial hostility. In such cases, the underlying animus may help establish a consistently discriminatory exercise of discretion. Several ways that such a disparate impact claim may satisfy Fed. R. Civ. P. 23 after Wal-Mart, include: (1) when the exercise of discretion is "tied to a specific employment practice" that "affected the class in a uniform manner"; (2) when there is "also an allegation of a company-wide policy of discrimination" that affected employment decisions; and (3) "when high-level personnel exercise" the discretion at issue. A specific employment practice or policy can comprise affirmative acts or inaction. Civil Procedure> Class Actions > Prerequisites > Predominance Civil Procedure> Class Actions > Prerequisites > Commonality [HN27] In a class action brought under Fed. R. Civ. P. 23(b)(3), the "commonality" requirement of Rule 23(a)(2) is subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirement that questions common to the class predominate over other questions. But as Wal-Mart made clear, the Rule 23(a) commonality requirement and the Rule 23(b)(3) predominance requirement remain separate inquiries. Civil Procedure > Appeals > Briefs Civil Procedure > Appeals > Reviewability > Preservation for Review [HN28] The doctrine of waiver derives from the Federal Rules of Appellate Procedure, which require that the argument section of an appellant's opening brief contain the appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies. Fed. R. App. P. 28(a)(8)(A). Failure of a party in its opening brief to challenge an alternate ground for a district court's ruling waives that challenge. Civil Procedure > Appeals > Reviewability > Preservation for Review Civil Procedure > Appeals > Briefs [HN29] Where an argument advanced in an appellant's opening brief applies to and essentially subsumes an alternative basis for affirmance not separately argued therein, the appellant does not waive that alternative basis for affirmance. Civil Procedure > Appeals > Reviewability > Preservation for Review [HN30] The purpose of the waiver doctrine is to avoid unfairness to an appellee and minimize the risk of an improvident or ill-advised opinion being issued on an unbriefed issue. Even when an argument has been waived, an appellate court may nonetheless consider it if a "miscarriage of justice would otherwise result." Civil Procedure > Appeals > Remands For internal use only CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL SDNY_GM_00056814 DB-SONY-0019638 EFTA_00 167384 EFTA01295651 Page 19 785 F.3d 895, "; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 [HN31] A district court must implement both the letter and spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces. The mandate rule forecloses relitigation of issues expressly or impliedly decided by the appellate court. Civil Procedure > Appeals > Remands Evidence > Procedural Considerations > Burdens of Proof > Allocation Governments > Courts > Judicial Precedents [HN32] The "extraordinary" exception to the mandate rule is when there is a showing that controlling legal authority has changed dramatically. Civil Procedure > Class Actions > Certification Civil Procedure > Class Actions > Judicial Discretion [HN33] Fed. R. Civ. P. 23 provides wide discretion to district courts, in part, to promote the systemic class action virtues of efficiency and flexibility. The realization of such benefits, however, requires that a district court exercise its judgment in a reasoned and expeditious manner. COUNSEL: ARGUED: Robert L. Wiggins, Jr., WIGGINS, CHILDS, QUINN & PANTAZIS LLC, Birmingham, Alabama, for Appellants. Lisa Schiavo Blatt, ARNOLD & PORTER LLP, Washington, D.C., for Appellees. ON BRIEF: Armand Derfner, D. Peters Wilborn, Jr., DERFNER, ALTMAN & WILBORN. Charleston, South Carolina; Ann K. Wiggins, WIGGINS, CHILDS, QUINN & PANTAZIS LLC, Birmingham, Alabama, for Appellants. Cary A. Farris, John K. Linker, J. Shannon Gatlin, ALANIZ SCHRAEDER LINKER FARRIS MAYES, LLP, Houston, Texas; Dirk C. Phillips, Sarah M. Harris, ARNOLD & PORTER LLP, Washington, D.C.; J. Tracy Walker, IV, Robert L. Hodges, Matthew A. Fitzgerald, MCGUIREWOODS, LLP, Richmond, Virginia, for Appellees. JUDGES: Before GREGORY, AGEE, and KEENAN, Circuit Judges. Judge Gregory wrote the opinion, in which Judge Keenan joined. Judge Agee wrote the dissenting opinion. OPINION BY: GREGORY OPINION ["898] GREGORY, Circuit Judge: This case concerns the certification of a class of black steel workers who allege endemic racial discrimination at a South Carolina plant owned ["2] by Nucor Corporation and Nucor Steel Berkeley (collectively, "Nucor"). Plaintiffs-appellants ("the workers") accuse Nucor of both discriminatory job promotion practices and a racially hostile work environment under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The district court originally denied class certification for both claims, and this Court reversed. See Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009) ("Brown I"). For internal use only SDNY_GM_00056815 CONFIDENTIAL - PURSUANT TO FED. R.ctON(FIDENTIAL DB-SDNY-00 19639 EFTA_00 167385 EFTA01295652 Page 20 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 The district court has revisited certification and decertified the promotions class in light of the Supreme Court's opinion in Wal-Mart Stores, Inc. v. Dukes, U.S. , 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011).' We thus again confront the question of whether the workers' have presented a common question of employment discrimination through evidence of racism in the workplace. Despite Wal-Mart's reshaping of the class action landscape, we hold that the district court has for a second time erred in refusing to certify the workers' class, where (1) statistics indicate that promotions at Nucor depended in part on whether an individual was black or white; (2) substantial anecdotal evidence suggests discrimination in specific promotions decisions in multiple plant departments; and (3) there is also significant evidence that those promotions decisions were made in the context of a racially hostile [**3] work environment. 1 The district court refused to decertify the wotters hostile work environment claim. We have previously deried as untimely Nucor's petition for interlocutory review of that decision. Nucor Corp. v. Brown. 760 F.3d 341.342 (4th Cir. 2014). Against that backdrop, the district court fundamentally misapprehended the reach of Wal- Mart and its application to the workers' promotions class. We thus vacate the district courts decision in part and remand for re-certification of the class. I. The Nucor plant encompasses six production departments that work together to melt, form, finish, and ship steel products to customers. See Brown I, 576 F.3d at 151. At the start of this litigation, 611 employees worked at the plant. Seventy-one (11.62%) were black? There was, however, at most one black supervisor in the production departments until after the Equal Employment Opportunity Commission ("EEOC") initiated charges that preceded the putative class action. 2 By comparison. more than 38% of the available local labor market is black. according to Census data provided by the workers' experts. The workers' promotions claim rests on alternative theories of liability under Title VII, which prohibits employment discrimination because of an individual's "race, color, religion, rig sex, or national origin." 42 U.S.C. § 2000e-2. The promotions claim first alleges a pattern or practice of racially disparate treatment in promotions decisions. See Teamsters v. United States, 431 U.S. 324, 336, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). Second, it charges that Nucor's facially neutral promotions policies and procedures had a racially disparate impact. See Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971); Wal-Mart, 131 S. Ct. at 2554. Both theories are grounded in a statistical analysis of racial disparities in job pro p899] motions at the plant combined with anecdotal evidence of discrimination. The workers' statistical evidence spans the four-year period preceding the litigation, between December 1999 and December 2003. Because Nucor destroyed and/or discarded the actual bidding data for the period before 2001, the workers' experts established an alternative benchmark using 'change-of-status' forms filed by the company whenever a promotion took place at For internal use only SDNY_GM_00056816 CONFIDENTIAL - PURSUANT TO FED. R.QCIANI(EIDENTIAL DB-SONY-0019640 EFTA_00 167386 EFTA01295653 Page 21 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 the plant. The experts extrapolated comparative statistics for that period using an assumption that the racial composition of the bidding pool for those jobs was the same as for the post-2001 jobs analyzed (when Nucor retained actual bidding records). The workers also presented abundant direct and circumstantial anecdotal evidence of discrimination in promotions, including: Anecdotal evidence provided rsi by the seven named plaintiffs and nine other putative class members. claiming discrimination in specific promotions decisions in the Nucor production departments; ' A description of complaints, contained in affidavits and depositions. made to plant General Manager Ladd Hall, who the workers allege failed to meaningfully respond; ' Descriptions of retaliation against those who complained to management, ' A written copy of Nucor's promotions policy and testimony that the policy was largely ignored in favor of giving unbridled discretion to supervisors; and • Testimony by a white supervisor that his department manager told him that "I don't think well ever have a black supervisor while I'm here." The facts undergirding the workers' separate hostile work environment claim, not directly at issue in this appeal, also bear on the promotions analysis. Those facts are disquieting in their volume, specificity, and consistency. Supervisors allegedly routinely referred to black workers as "nigger" and "DAN (dumb ass nigger)," with one supervisor reportedly stating "niggers aren't smart enough" to break production records, while others tolerated the routine use of epithets like "bologna lips," "yard [`6] ape," and "porch monkey." These epithets and others were broadcast over the plant-wide radio system - comprising a network of walkie-talkies used to communicate - along with monkey noises and the songs "Dixie" and "High Cotton." The workers' declarations and depositions further suggest that departmental supervisors and the plant's general manager consistently ignored racial harassment carried out by white workers, including the circulation of racist emails, the prominent display of a hangman's noose, the commonplace showing of the Confederate flag, and an episode when a white employee draped a white sheet over his head with eyes cut out in the form of a KKK hood. In 2007, the South Carolina district court denied the workers' motion for class certification for both the promotions and hostile work environment claims. In 2009, a divided panel of this Court reversed, concluding that the workers satisfied the threshold requirements of Federal Rule of Civil Procedure 23. We remanded the case 'with instructions to certify the appellants' class action." Brown I, 576 F.3d at 160. On February 17, 2011, the district court followed our instructions to certify the class, concluding that the workers satisfied Rule 23(b)(3)'s requirements that common questions predominate ["7] and that the class action was superior to other litigation devices ['9OO] to resolve the dispute. The district court later declined to stay the case pending a ruling in Wal-Mart, and it declined to reconsider its order certifying the class. The Supreme Court decided Wal-Mart in June 2011, decertifying an unprecedented nationwide class of approximately 1.5 million female employees spread over 3,400 stores. Wal-Mart held that the plaintiffs had failed to present a "common contention" of employment discrimination capable of "classwide resolution," as required by Rule 23(a)(2). Wal-Mart, 131 S.Ct. at 2551. Given the diffuse class and number of employment decisions For internal use only SDNY_GM_00056817 CONFIDENTIAL - PURSUANT TO FED. R.QQN(FIDENTIAL DB-SDNY-0019641 EFTA_00 167387 EFTA01295654 Page 22 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, ea; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 at issue, the Supreme Court observed that "[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all class members' claims for relief will produce a common answer to the crucial question why was I disfavored." Id. at 2552 (emphasis in original). The plaintiffs, Wal-Mart concluded, failed to meet that standard when they premised liability on a company policy of decentralized subjective decision-making by local managers, combined with statistics showing gender-based employment disparities, limited anecdotal evidence, [**8] and expert testimony about a corporate culture that allowed for the transmission of bias. See id. at 2551, 2554-55. On September 11, 2012, the district court relied on Wal-Mart to decertify the workers' promotions class, invoking the courts authority under Rule 23(c)(1)(C) to amend a certification order at any time before final judgment. Wal-Mart, the court observed, clarified and heightened the commonality requirement of Rule 23(a)(2), requiring the workers to present "significant proof" that Nucor "operated under a general policy of discrimination" and that they suffered a common injury. J.A. 10934 (quoting Wal-Mart, 131 S.Ct. at 2553). Under that standard, the district court concluded that decertification of the promotions class was required because: (1) this Court's examination of the workers' statistical analysis in Brown I was not sufficiently "rigorous" to assess whether it raised questions common to the class under Rule 23(a)(2); (2) the workers' statistical and anecdotal evidence failed to establish such commonality because it did not provide "significant proof' that there existed both a "general policy of discrimination" and a "common injury"; (3) the delegation o