oned for rehearing en banc, arguing, among other things, that neither the lower court nor the parties had previously analyzed the Rule 23(b) issue. See Nucor Pet. for Reh'g at 9, Brown I, 576 F.3d 149 (No. 08-1247), ECF No. 53. In response, the Brown I panel amended its opinion and excised any mention of Rul