Steve Simms v. Jerral Jones

Case: 15-10242 Document: 00513671038 Page: 1 Date Filed: 09/09/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
No. 15-10242 September 9, 2016
Lyle W. Cayce
Clerk
BRUCE IBE; DEAN HOFFMAN; ROBERT FORTUNE; JASON MCLEAR

Plaintiffs - Appellants

v.

JERRAL WAYNE JONES, also known as Jerry Jones; BLUE & SILVER,
INCORPORATED; DALLAS COWBOYS FOOTBALL CLUB, LIMITED;
JWJ CORPORATION; COWBOYS STADIUM, L.P.;
COWBOYS STADIUM GP, L.L.C.; NATIONAL FOOTBALL LEAGUE,

Defendants - Appellees

---------------------------------------

KEN LAFFIN, Individually and On Behalf Of All Others Similarly Situated;
DAVID WANTA, Individually and On Behalf Of All Others Similarly
Situated; REBECCA BURGWIN, Individually and On Behalf Of All Others
Similarly Situated,

Plaintiffs - Appellants

v.

NATIONAL FOOTBALL LEAGUE; COWBOYS STADIUM GP, L.L.C.;
COWBOYS STADIUM, L.P.; DALLAS COWBOYS FOOTBALL CLUB,
LIMITED; JWJ CORPORATION

Defendants - Appellees
 Case: 15-10242 Document: 00513671038 Page: 2 Date Filed: 09/09/2016

No. 15-10242

Appeal from the United States District Court
for the Northern District of Texas

Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Plaintiffs-Appellants (“Appellants”) purchased tickets to Super Bowl
XLV, but were either displaced from their seats, relocated, or had an
obstructed view of the field. The majority of affected ticketholders settled with
the National Football League (the “NFL”). Appellants, however, elected to sue,
alleging various claims relating to breach of contract and fraud. One group of
Appellants sought to certify three separate class actions. Most of Appellants’
claims were dismissed before trial, and class certification was denied. Seven
individual Appellants went to trial against the NFL and prevailed on breach
of contract, but not on fraudulent inducement claims. The impetus for this
appeal seems to be the denial of class certification, but Appellants also contest
the court’s elimination, by dismissal or summary judgment, of several claims.
We AFFIRM the judgment.
BACKGROUND
Some will remember Super Bowl XLV as a close game between two
legendary franchises, the Green Bay Packers and the Pittsburgh Steelers.
Others will recall the unexpected ice storm that blanketed the DFW Metroplex
the week of the game. Yet the memories of others will involve a multi-issue
seating fiasco inside one of the nations’ most celebrated venues—Cowboys
Stadium. 1 This story began back when the North Texas Bid Committee (the

1 Presently known as AT&T Stadium.
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No. 15-10242
“Committee”) submitted its bid to host Super Bowl XLV. Although Cowboys
Stadium had not been built, the Committee billed the venue as a new state-of-
the-art stadium capable of holding as many as 100,000 fans.
In preparation for the game, the Committee and the NFL entered into a
stadium license agreement, which provided that the Committee would bear the
responsibility of installing temporary seating to bring the minimum capacity
up to 93,221. The agreement provided that the temporary seats be of a suitable
standard commensurate with the quality and standards of the NFL Super
Bowl viewing experience, including appropriate sightlines and access to
concessions stands and restrooms. The agreement also required that all
temporary seating be installed and approved by January 30, 2011 (one week
before the game).
Cowboys Stadium contracted Seating Solutions to install approximately
13,000 temporary seats for the game. The NFL hired Populous, an
architectural design firm, to review and evaluate the installation plans. After
Seating Solutions initially submitted its temporary seating plans, Populous
noted, inter alia, several sightline issues. As a result, over 1,000 seats were
marked as having a “restricted view.” Additional seats were removed from the
plans in early January during the quality control process.
Installation of the temporary seating began in the second week of
January 2011. On January 30, the deadline for temporary seat installation,
seats were yet to be installed or approved by the local safety authorities.
Installation continued the week before the game and additional crews were
brought to help Seating Solutions complete the work. The work was still
ongoing at noon on Super Bowl Sunday. Ultimately, not all of the seats were
ready. Approximately 400 ticketholders were left without seats, another 850
or so ticketholders were relocated to seats in other parts of the stadium, and
roughly 2,000 ticketholders were delayed in reaching their seats.
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The NFL apologized for the seating debacle and offered compensation to
all ticketholders who were displaced, relocated, or delayed. 2 Nevertheless, two
class action lawsuits were filed in the Northern District of Texas against the
NFL and the Cowboys franchise defendants (the “Cowboys”). After
consolidation, Appellants’ complaint identified three putative classes: (1) the
“Displaced Class,” consisting of all ticketholders who were left without seats;
(2) the “Relocated/Delayed Class,” consisting of all ticketholders who were
relocated to a different seat or were significantly delayed in getting to their
seats; and (3) the “Obstructed View Class” consisting of all ticketholders who
were assigned seats with obstructed views of the field, the video board, and/or
the stadium, but whose tickets were not marked as a restricted view seat. In
their first amended complaint, Appellants raised claims for breach of contract,
fraudulent inducement, fraudulent concealment, negligent misrepresentation
by affirmative misrepresentations, and negligent misrepresentation by
concealment, and negligence. In addition, three of the Appellants alleged
Deceptive Trade Practices Act (“DTPA”) violations by all Appellees.
The NFL responded by moving to dismiss all the tort claims on the basis
of Texas’s “economic loss rule,” which bars recovery in tort for economic losses
resulting from a party’s failure to perform under a contract. The NFL also
urged that the remaining claims for fraudulent inducement were not pled with
specificity under Fed. R. Civ. P. 9(b). The Cowboys moved to dismiss all claims
against them because they had no contractual relationship with the
Appellants.
The district court granted in part the NFL’s motion to dismiss and
dismissed the Cowboys defendants. The court dismissed with prejudice

2 According to the NFL, approximately 90% of the displaced fans and 70% of the
relocated or delayed fans ultimately accepted the NFL’s settlement offers and signed a
release of all claims.
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No. 15-10242
Appellants’ claims of fraudulent concealment and negligent misrepresentation
against the NFL as barred by the economic loss rule. The court held that
Appellants’ theory of fraudulent inducement as to the seats that were not
completed by game day was not plausible because the NFL had nothing to gain
by tricking fans into purchasing tickets that it did not plan on having available.
Quite the contrary, efforts to install the seats were ongoing until hours before
the game. The district court accordingly dismissed the Displaced and
Relocated ticketholders’ fraudulent inducement claims with prejudice. 3 The
court dismissed the Cowboys, who owed no duty to Appellants because the
Cowboys were not a party to the contracts between Appellants and the NFL.
Subsequently, the court denied Appellants’ motion for class certification.
With respect to the Displaced Class, the court found certification inappropriate
because Appellants failed to show that the proposed class satisfied Fed. R. Civ.
Pro. 23(a)’s numerosity requirement, and because individual damages issues
predominated over the common legal issue of liability.
Concerning the Relocated Class, the court denied certification because
individual issues predominated over the common issues of contract
interpretation. The court stated that whether a ticketholder received a
replacement seat of “less quality” than his original seat could not be decided
on a class-wide basis because every seat is unique and each class member
would need to prove individual damages.
Similarly, the court determined that liability and damages for the
Obstructed View Class would require predominantly individualized inquiries

3 Additionally, the court dismissed the named ticketholders’ DTPA claims with
prejudice because, as members of the Displaced Class, they lacked standing to assert claims
for failure to disclose that certain seats had obstructed views. The district court, however,
dismissed without prejudice claims for failure to disclose as to other potential ticketholders
who had an obstructed view seat.

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No. 15-10242
regarding the extent of the obstruction, if any, and each class member’s
individual damages. The court also found that this class’s fraudulent
inducement claim required resolution of predominant individual liability
issues: the alleged nature of the misstatement or omission and Appellants’
individual reliance.
The district court next granted the NFL’s motion for summary judgment
as to Appellants’ breach of contract and fraudulent inducement claims based
on obstructed views of the video board. The court found that there was no
contract for an unobstructed view of the video board nor any ambiguity in the
ticket term “a spectator seat for the game.” And because Appellants pointed
to no evidence outside of the ticket terms that imposed a duty on the NFL to
provide an obstructed view of the video board, the district court rejected
fraudulent inducement claims as a matter of law.
The parties proceeded to trial on the remaining claims: the breach of
contract claims of three displaced ticketholders, two relocated ticketholders,
and two obstructed-view ticketholders, and the fraudulent inducement claims
of two obstructed-view ticketholders. 4 On the seventh day of the trial, the
district court granted the NFL’s motion for a directed verdict on Appellants’
request for punitive damages because no reasonable jury could find fraud by
clear and convincing evidence.
On March 12, 2015, the jury returned a verdict in favor of the
ticketholders on their breach of contract claims and in favor of the NFL on the
remaining fraudulent inducement claims. The jury awarded damages ranging
from $5,670 to $22,000. The ticketholders timely appealed.

4The negligence claims against the NFL were pleaded in the alternative to Appellants’
breach of contract claims.
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DISCUSSION
Appellants challenge nearly every dispositive decision by the district
court: (1) the dismissal of the Cowboys and fraud-related claims; (2) summary
judgment on obstructed-view claims; and (3) the denial of class certification.
Appellants also take issue with denial of a jury instruction and the court’s
directed verdict on punitive damages. We address these issues in sequence.
A. Dismissal of the Cowboys and Fraud-related Claims

This court reviews motions to dismiss pursuant to Rule 12(b)(6) de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff.” Toy v. Holder, 714 F.3d 881, 883 (5th Cir.
2013). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
1. Claims against the Cowboys.
Under Texas law, “a party generally must be a party to a contract before
it can be held liable for a breach of the contract.” Hoffman v. AmericaHomeKey,
Inc., 23 F. Supp. 3d 734, 739 (N.D. Tex. 2014) (citing Ostrovitz & Gwinn, LLC
v. First Specialty Ins. Co., 393 S.W.3d 379, 387 (Tex. App.—Dallas 2012, no
pet.)). To establish contract formation, a party must prove “an offer and
acceptance and a meeting of the minds on all essential terms.” Principal Life
Ins. Co. v. Revalen Dev., LLC, 358 S.W.3d 451, 454-55 (Tex. App.—Dallas 2012,
pet. denied).
The district court dismissed the breach of contract claims against the
Cowboys because Appellants made no plausible allegations that the Cowboys
were anything more than third-party vendors of tickets to an NFL event.

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On appeal, Appellants first argue that dismissal of their breach of
contract claim against the Cowboys—and of their tort claims premised on the
existence of contracts with the Cowboys—was improper. They contend that
they pled sufficient facts, based on the sale invoices of game tickets and
parking sold by the Cowboys to permit a plausible inference that one or more
of the Cowboys defendants were parties to the ticket contracts. In support of
this position, Appellants cite cases 5 holding that invoices can constitute
contracts between parties to a sale.
The cases are inapposite, because the invoices to which they refer
contained additional terms relating to third parties. The Super Bowl tickets,
in contrast, reference the Cowboys’ name solely to identify the stadium. The
Cowboys delivered NFL’s tickets and sold parking. Although Appellants make
additional allegations suggesting that the Cowboys were more than just a
third-party vendor, the terms of the ticket are unambiguous. The ticket states:
“[a]dmission may be refused or ticketholder ejected at the sole discretion of the
National Football League.” Because Appellants have presented no authority
supporting that a third-party vendor with limited responsibility is also
responsible for the performance of the express ticket terms, Appellants’
argument that the Cowboys are liable for their tort claims fails. 6

5Hawkins v. Frick-Reid Supply Corp., 154 F.2d 88, 88-89 (5th Cir. 1946); Chesapeake
Operating, Inc. v. Whitehead, No. C-10-301, 2011 WL 4372486, at *5 (S.D. Tex. Sept. 19,
2011).

6 The Appellants also argue that the Cowboys and the NFL were agents of one another,
and thus Appellants were free to sue either or both of them for breach of contract. This
argument was not presented to the district court. Appellants urge the court to infer from
their complaint a breach of contract agency theory. We decline to do so and thus consider
Appellants agency argument waived. See Celanese Corp. v. Martin K. Eby Const. Co.,
620 F.3d 529, 531 (5th Cir. 2010)) (“Review of a Rule 12(b)(6) dismissal is, by its very nature,
limited to the allegations and theories set forth in the complaint that the district court had
before it when granting the motion to dismiss.”); Hogan v. City of Hous., 819 F.2d 604 (5th
Cir. 1987) (reviewing dismissal under Rule 12(b)(6), “we consider only the pleadings and
accept them as true”)
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2. Displaced ticketholders’ fraudulent inducement claims.

Under Texas law, the elements of common-law fraud are: (1) a material
misrepresentation, (2) which was false, and (3) which was either known to be
false when made or was asserted without knowledge of the truth, (4) which
was intended to be acted upon, (5) which was relied upon, and (6) which caused
injury. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990).
“Fraudulent inducement is a distinct category of common-law fraud that
shares the same elements but involves a promise of future performance made
with no intention of performing at the time it was made.” Zorrilla v. Aypco
Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015).
Fed. R. Civ. P. 9(b) requires that “[i]n alleging fraud . . . a party must
state with particularity the circumstances constituting fraud.” The complaint
must thus set forth specific facts supporting an inference of fraudulent intent.
Melder v. Morris, 27 F.3d 1097, 1102 (5th Cir. 1994).
In dismissing the Displaced and Relocated Ticketholders’ fraudulent
inducement claims, the district court held:
Without alleging facts supporting the allegation that Defendants
did not intend to construct the temporary seats for which tickets
were sold, Plaintiffs cannot recover on a theory of fraudulent
inducement as to temporary seats that were not completed and
approved by game day. . . . The Court finds that Plaintiffs’ theory
of fraudulent inducement as to temporary seating is not plausible.

Challenging the dismissal, Appellants contend that they were not
required to allege that the NFL had a specific intent not to perform the ticket
contract, but only needed to allege that the NFL recklessly made a promise to
perform. Appellants mistakenly cite Custom Leasing, Inc. v. Tex. Bank & Trust
Co. of Dall., 516 S.W.2d 138, 143 (Tex. 1974), a case involving fraudulent
misrepresentations, not fraudulent inducement. Fraudulent inducement, as
the district court understood, rests on a misrepresentation made with the
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intent to deceive and no intention of performing the act at the time the promise
was made. Arete Partners, L.P. v. Gunnerman, 594 F.3d 390, 394 (5th Cir.
2010). Appellants’ recklessness allegation was insufficient.
Alternatively, Appellants argue that they plausibly pled Appellees’
specific intent to defraud. In support of their contention, they point to
statements made by Seating Solutions in a press release dated January 27,
2011, claiming that they had created a terrific fan experience in every way
maximizing safety, comfort and sight-line; a statement made by Jerry Jones
that, due to brisk sales, he wanted to print more tickets; and numerous
statements related to the allegation that Jones was unabashed in his desire to
set the Super Bowl attendance record. They also point to facts showing that
the NFL wanted to maximize profit and “wanted to avoid a public relations
debacle before the game.” Finally, they argue that the NFL had knowledge
from which it could be inferred that the seats would not be completed by game
day, but failed to inform ticketholders.
None of these allegations suggests an intent not to perform at the time
the ticket contracts were sold. Indeed, given the frantic last-minute
installation of seats and potential adverse publicity from intentional non-
performance, an inference of fraudulent inducement is untenable.
3. Fraudulent concealment and negligent misrepresentation claims.

The district court dismissed Appellants’ fraudulent concealment and
negligent misrepresentation claims holding that they were foreclosed by the
economic loss rule. Under Texas law, the independent injury rule—also
referred to as the economic loss rule—precludes recovery in tort when the loss
complained of is the subject matter of a contract between the parties. See Sw.
Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991). In DeLanney, the
Texas Supreme Court explained:

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If the defendant’s conduct—such as negligently burning down a
house—would give rise to liability independent of the fact that a
contract exists between the parties, the plaintiff’s claim may also
sound in tort. Conversely, if the defendant’s conduct—such as
failing to publish an advertisement—would give rise to liability
only because it breaches the parties’ agreement, the plaintiff’s
claim ordinarily sounds only in contract.

Id. In determining whether a claim can be brought as a tort, consideration
must be given to “the source of the defendant’s duty to act (whether it arose
solely out of the contract or from some common-law duty) and the nature of the
remedy sought by the plaintiff.” Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 13
(Tex. 1996).
Challenging the dismissal, Appellants argue that their claims fell within
the well-recognized exception to the economic loss rule: “if a plaintiff presents
legally sufficient evidence on each of the elements of a fraudulent inducement
claim, any damages suffered as a result of the fraud sound in tort” because “the
legal duty not to fraudulently procure a contract is separate and independent
from the duties established by the contract itself.” Formosa Plastics Corp. USA
v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 46-47 (Tex. 1998).
Because there is no plausible case for fraudulent inducement, this exception
carries no weight. Moreover, in tallying damages like travel costs, Appellants
alleged no damages independent from those resulting from the breach of
contract. The economic loss rule bars these claims. 7 See TIB--The Indep.
BankersBank v. Canyon Cmty. Bank, 13 F. Supp. 3d 661, 671 (N.D. Tex. 2014).

7 Appellants make no new arguments to defend their fraud-based DTPA claims, which
are infirm for the reasons detailed in reference to the other fraud-related claims.

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B. Summary Judgment on Obstructed View Claims
Summary judgment motions are reviewed de novo, using the same
standard as the district court: viewing “all facts and evidence in the light most
favorable to the non-moving party.” Amerisure Mut. Ins. Co. v. Arch Specialty
Ins. Co., 784 F.3d 270, 273 (5th Cir. 2015). Summary judgment is appropriate
if the record discloses “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
1. Contract claims based on an obstructed view of the video board.

Under Texas law, “the interpretation of an unambiguous contract is a
question of law for the court to decide.” Gonzalez v. Denning, 394 F.3d 388,
392 (5th Cir. 2004). Courts are to “give contract terms their plain and ordinary
meaning unless the instrument indicates the parties intended a different
meaning.” Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d
164, 168 (Tex. 2009). “If a written contract is so worded that it can be given a
definite or certain legal meaning, then it is not ambiguous.” Nat’l Union Fire
Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995)
(per curiam). “If, however, the language of a policy or contract is subject to two
or more reasonable interpretations, it is ambiguous.” Id.
Appellants argue that the ticket contract, which promised the
ticketholder “a spectator seat for the game,” is ambiguous. They first contend
that the language cannot be given a definite or certain legal meaning because
it is well known that at Cowboys’ Stadium, the video board is very much part
of the game-viewing experience.
We disagree. The ticket speaks for itself: “a spectator seat for the game”
is a spectator seat for the Super Bowl game played on the field. Further, the
interpretation offered by Appellants is not reasonable. As noted by the district
court, if the term “a spectator seat for the game” were interpreted to include

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No. 15-10242
the football game displayed on the video board, every ticketholder would have
a breach of contract claim if the video board malfunctioned, even if he had a
full view of the field. The unambiguous term of the contract entitling
ticketholders to “a spectator seat for the game” was not breached by an
obstructed view of the video board.
2. Fraudulent inducement claims based on an obstructed view of the
video board.

“As a general rule, a failure to disclose information does not constitute
fraud unless there is a duty to disclose the information.” Bradford v. Vento,
48 S.W.3d 749, 755 (Tex. 2001). Therefore, “silence may be equivalent to a
false representation only when the particular circumstances impose a duty on
the party to speak and he deliberately remains silent.” Id. Whether such a
duty exists is a question of law. Id.
The district court dismissed Appellants’ claims for lack of evidence that
the ticket terms imposed a duty on the NFL to disclose that the view of the
video board was obstructed.
As just noted, the NFL bore no contractual obligation to provide seats
with a view of the video board. The tickets themselves were not misleading.
Consequently, the premise of Appellants’ argument—that the NFL had a duty
to disclose that it knew that prior affirmative statements on the tickets
suggesting there were no obstructed views was false or misleading—fails. Cf.
Shangong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029,
1035 (5th Cir. 2010) (internal quotation marks and citations omitted) (“a duty
to speak arises between non-fiduciaries when one party learns later that his
previous affirmative statement was false or misleading”). Neither the NFL nor
the ticket contract made reference to the video board.
Appellants also rely on this court’s holding in Union Pac. Res. Grp, Inc.
v. Rhône–Poulenc, Inc., 247 F.3d 574, 586 (5th Cir. 2001); “A duty to speak
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arises by operation of law when . . . one party knows that the other party is
relying on a concealed fact, provided that the concealing party also knows that
the relying party is ignorant of the concealed fact and does not have an equal
opportunity to discover the truth[.]” This argument is unavailing for three
reasons. First, Union Pacific was decided before the Texas Supreme Court
stated in Bradford that Texas has “never adopted” the rule recognizing a
general duty to disclose facts in a commercial setting. 48 S.W.3d at 755-56;
Coburn Supply Co. v. Kohler Co., 342 F.3d 372, 377 (5th Cir. 2003). Second,
Appellants present no evidence to suggest that the NFL knew that Appellants
were relying on the alleged concealed fact. Third, by its nature, a fraudulent
inducement claim cannot be premised on alleged post-contractual conduct.
Appellants were not fraudulently induced to buy Super Bowl tickets thinking
they would see the game on the video board.
C. Denial of Class Certification

This court reviews a denial of class certification for abuse of discretion
and the legal questions implicated by the denial are reviewed de novo. In re
Rodriguez, 695 F.3d 360, 364 (5th Cir. 2012). “Implicit in this deferential
standard is a recognition of the essentially factual basis of the certification
inquiry and of the district court’s inherent power to manage and control
pending litigation.” In re Monumental Life Ins. Co., 365 F.3d 408, 414
(5th Cir. 2004) (quoting Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408
(5th Cir. 1998)).
Rule 23 governs whether a proposed class falls within the limited
exception to “the usual rule that litigation is conducted by and on behalf of the
individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700-01
(1979). Four prerequisites must be met by all classes: numerosity,
commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a).

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“Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 350 (2011). The party seeking class certification bears
the burden of demonstrating that the requirements of Rule 23 have been met.
O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 737-38 (5th Cir.
2003).
Under Rule 23(a)(1), certification is only appropriate where “the class is
so numerous that joinder of all members is impracticable.” “[A] plaintiff must
ordinarily demonstrate some evidence or reasonable estimate of the number of
purported class members.” Zeidman v. J. Ray McDermott & Co., Inc.,
651 F.2d 1030, 1038 (5th Cir. 1981). This court, however, has repeatedly noted
that “the number of members in a proposed class is not determinative of
whether joinder is impracticable.” In re TWL Corp., 712 F.3d 886, 894 (5th Cir.
2013) (quoting Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th
Cir. 1999)). Rather, “a number of facts other than the actual or estimated
number of purported class members may be relevant to the ‘numerosity’
question; these include, for example, the geographical dispersion of the class,
the ease with which class members may be identified, the nature of the action,
and the size of each plaintiff’s claim.” Zeidman, 651 F.2d at 1038.
Pursuant to Rule 23(a)(2), there must be “questions of law or fact
common to the class.” The Supreme Court has explained that “[c]ommonality
requires the plaintiff to demonstrate that the class members ‘have suffered the
same injury.’” Dukes, 564 U.S. at 349 (quoting General Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 156, (1982)). Dissimilarities among class members
should be considered to determine whether a common question is truly
presented. Id. at 359. Even a single common question of law or fact can suffice
to establish commonality, id., so long as resolution of that question “will resolve
an issue that is central to the validity of each one of the [class member’s] claims
in one stroke,” id. at 350.
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Rule 23(a)(3) provides that “the claims or defenses of the representative
parties [must also be] typical of the claims or defenses of the class.” The
typicality inquiry rests “less on the relative strengths of the named and
unnamed plaintiffs’ cases than on the similarity of legal and remedial theories
behind their claims.” Jenkins v. Raymark Indus. Inc., 782 F.2d 468, 472 (5th
Cir. 1986).
Moreover, Rule 23(a)(4) requires the party seeking certification to show
that “the representative parties will fairly and adequately protect the interests
of the class.” This standard “requires the class representatives to possess a
sufficient level of knowledge and understanding to be capable of ‘controlling’ or
‘prosecuting’ the litigation.” Berger v. Compaq Comput. Corp., 257 F.3d 475,
482-83 (5th Cir. 2001).
Nonetheless, class certification is permitted only if “the court finds that
the questions of law or fact common to class members predominate over any
questions affecting only individual members, and that a class action is superior
to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). The predominance inquiry “tests
whether proposed classes are sufficiently cohesive to warrant adjudication by
representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997).
“In order to ‘predominate,’ common issues must constitute a significant part of
the individual cases.” Mullen, 186 F.3d at 626 (quoting Jenkins, 782 F.2d at
472). Determining whether legal issues common to the class predominate also
requires that this court inquire how the case will be tried. O’Sullivan, 319 F.3d
at 738. “This entails identifying the substantive issues that will control the
outcome, assessing which issues will predominate, and then determining
whether the issues are common to the class.” Id.
Generally, individualized damages calculations will not preclude a
finding of predominance. See Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036,
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No. 15-10242
1045 (2016)(quoting 7AA C. Wright, A. Miller & M. Kane, Federal Practice and
Procedure §1788, pp. 123-34 (3d ed. 2005) (footnotes omitted) (“[I]t uniformly
has been held that differences among the members [of a class] as to the amount
of damages incurred does not mean that a class action would be
inappropriate.”)). Nothing in this general language from Tyson Foods,
however, alters this court’s holdings that class treatment “may not be suitable
where the calculation of damages is not susceptible to a mathematical or
formulaic calculation, or where the formula by which the parties propose to
calculate individual damages is clearly inadequate.” Bell Atl. Corp. v. AT&T
Corp., 339 F.3d 294, 307 (5th Cir. 2003). “Where the plaintiffs’ damage claims
focus almost entirely on facts and issues specific to individuals rather than the
class as a whole, the potential exists that the class action may degenerate in
practice into multiple lawsuits separately tried. In such cases, class
certification is inappropriate.” O’Sullivan, 319 F.3d at 744-45.
Finally, to determine whether a class action is the superior method for
adjudicating the controversy, the district court must compare and “assess the
relative advantages of alternative procedures for handling the total
controversy.” In re TWL Corp., 712 F.3d at 896 (quoting Fed. R. Civ. P. 23(b)(3)
Advisory Committee’s Note to 1966 Amendment). The superiority analysis is
fact-specific and varies depending on the circumstances of each case. Id.
Among the factors for the court to consider are “(A) the interests of members
of the class in individually controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation concerning the controversy
already begun by or against class members; (C) the desirability or
undesirability of concentrating the litigation of the claims in the particular
forum; and (D) the likely difficulties encountered in managing a class action.”
Amchem Prods., Inc., 521 U.S. at 615-616.

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No. 15-10242
1. The Displaced Class.
The district court denied certification of the Displaced Class after
holding that Appellants had failed to demonstrate that the class was so
numerous that joinder of all members was impracticable. Alternatively, the
district court found that individual issues of damages predominated over the
one remaining common legal issue—whether the ticket terms require the NFL
to refund the face value of the ticket, or whether purchasers are entitled to
damages generally recoverable for a breach of contract. Because the proposed
class fails the numerosity test, we need not discuss the court’s predominance
conclusions concerning this class.
On numerosity, Appellants argue that even accepting the NFL’s
estimate that the Displaced Class consisted of 42 class members as opposed to
55, a presumption of impracticability was raised. In support of their argument,
Appellants cite to Mullen as adopting the proposition suggested in Newberg on
Class Actions: a class of forty or more members should raise the presumption
that joinder is impracticable. 186 F.3d at 624. But Mullen also stated that
“the number of members in a proposed class is not determinative of whether
joinder is impracticable.” Id. This court has repeatedly counseled that “courts
must not focus on sheer numbers alone.” In re TWL Corp., 712 F.3d at 894
(quoting Pederson v. La. State Univ., 213 F.3d 858, 868 n.11 (5th Cir. 2000)).
In fact, Appellants’ counsel are currently pursuing a “mass” action for 237
individual Super Bowl XLV ticketholders in the same district court. Greco v.
Jones, No. 3:13-CV-1005-M (N.D. Tex.). We find no clear error in the district
court’s determination that Appellants failed to meet the threshold numerosity
requirement.
2. The Relocated Class.
The district court denied certification of the Relocated Class after
holding that individual issues predominated over common issues. The court
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No. 15-10242
found that the common issue of contract interpretation—whether the NFL
breached the ticket terms by relocating any ticketholder—was overwhelmed
by two individualized issues: a front-end inquiry to determine membership in
the class—i.e., those who received inferior seats—and a back-end inquiry to
determine individual damages.
Appellants assert that individual issues did not predominate over
common issues and repeat the contention, inter alia, that different amounts of
damages do not preclude class certification. These arguments are
unconvincing. There was no record of what replacement seat was received by
each relocated ticketholder. Whether a class member actually received a
lesser-quality seat and how the relocated seat affected damages raised complex
and individualized issues that could not be resolved by common evidence.
As was discussed above, this circuit recognizes that individual
damages issues can preclude class certification. See Bell Atl. Corp., 339 F.3d
at 307; O’Sullivan, 319 F.3d at 744-45; see also Allison, 151 F.3d at 413 (“[A]s
claims for individually based money damages begin to predominate, the
presumption of cohesiveness decreases while the need for enhanced procedural
safeguards…increases.”); cf. Bertulli v. Indep. Ass’n of Cont’l Pilots, 242 F.3d
290, 298 (5th Cir. 2001)(finding that common issues predominated despite the
need for individualized damages where “virtually every issue prior to damages
is a common issue.”).
In In re Deepwater Horizon, 739 F.3d 790, 816 (5th Cir. 2014), on which
Appellants rely, this court upheld a finding of predominance despite diverse
damages because “even without a common means of measuring damages, [the]
common issues [of fact and law] nonetheless predominated over the issues
unique to individual claimants.” In contrast here, we agree with the district
court that individual damages issues predominated over the common issue of

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No. 15-10242
breach because ticketholders incurred vastly different expenses, which would
essentially necessitate mini-trials to adjudicate damages for each ticketholder.
It is also no support for certification that another circuit has held that
“[t]here are a number of management tools available to a district court to
address any individualized damages issues that might arise in a class action.”
In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141 (2d Cir.
2001). This observation was not made in the context of a predominance
analysis, but in the discussion of the “manageability” of the potential class
action. Id. Moreover, this court has made clear that “[a] district court cannot
manufacture predominance through the nimble use of” management tools.
Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996). Nor does
any authority require the district court to use case management tools within
its discretion.
Accordingly, the district court did not abuse its discretion in refusing to
certify this class. See Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir.
2005).
3. The Obstructed-View Class.
The district court denied certification of the Obstructed-View Class,
concluding that individualized inquiries predominated about the extent of the
obstruction and the personal damages alleged by each class member. The court
also held that the fraudulent inducement claims required resolving
predominant individual issues. Specifically, the alleged misstatement or
omission, and each Appellants’ reliance on any such misstatement or omission.
Appellants first contend that the district court erred in holding that an
individualized inquiry to determine the extent of obstruction—or the
materiality of the breach—was required because common evidence showed
that any obstructed view of the field was material. In support of their
contention, Appellants argue that tickets marked “restricted view” were sold
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No. 15-10242
at the reduced price of $600, regardless of the extent of the obstruction.
Further, even if the extent of the obstruction was relevant, it could be proved
by common evidence in the form of sightline projections and analysis
performed by Populous and Seating Solutions.
We are not persuaded. The fact that the NFL sold all tickets marked
“restricted view” at the same price does not by itself establish that any
obstruction constituted a material breach of the ticket contract. Under Texas
law, materiality of a party’s breach of contract is determined by considering
five factors, including “the extent to which the injured party will be deprived
of the benefit which he reasonably expected.” Mustang Pipeline Co. v. Driver
Pipeline Co., 134 S.W.3d 195, 199 (Tex. 2004) (quoting Restatement (Second)
of Contracts § 241 (1981)). In this case, a jury could reasonably find that a
minor obstruction, while a breach of the ticket contract, was not material
because the ticketholder could still fully enjoy the game.
The district court rejected Appellants’ contention that they could use
computer modeling and sightline studies to establish the existence and extent
of any obstruction; we agree. The court observed that while it may be possible
for such a program to identify seats with obstructed views, this does not
eliminate the need to evaluate the extent of obstruction actually experienced
by individual class members; even if Appellants hired an expert to present the
models, the jury would still need to determine if every identified seat was
obstructed.
With respect to the fraudulent inducement claim, Appellants contend
that the district court erred in holding that reliance was an individual issue.
Appellants rely on Affiliated Ute Citizens of Utah v. United States, 406 U.S.
128, 153-54 (1972), a case involving primarily a failure to disclose under the
Securities Exchange Act, where the court held that proof of reliance was not a
prerequisite to recovery. The court stated: “[a]ll that is necessary is that the
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No. 15-10242
facts withheld be material in the sense that a reasonable investor might have
considered them important in the making of [a] decision.” Id. Recognizing this
fact, this court has confined the presumption to SEC Rule 10b-5 claims based
on fraudulent omission. 8 No Texas cases appear to cite Affiliated Ute or to
apply the Ute presumption. 9
Moreover, as the NFL notes, presuming class-wide reliance would be
particularly inappropriate under the circumstances of this case. The district
court found, and Appellants do not dispute, that the evidence suggested that
different ticketholders had different expectations regarding their seats—some
likely relied on a lack of notice that their views would be restricted when they
purchased their seats, but others purchased seats without obtaining any
information about them. Because expectations varied, the materiality of the
omission may have significantly differed from person to person, undermining
the very premise of the Ute presumption.

8 See Griffin v. Box, No. 94-10348, 1991 WL 255296, at *16 n. 17 (5th Cir. May 2, 1996)
(“Ute presumption applies only to rule 10b-5 actions based primarily upon omissions rather
than misrepresentations.”) (internal quotations and citations omitted); Smith v. Ayres,
845 F.2d 1360, 1363 (5th Cir. 1988) (“[T]he first step in determining whether the Affiliated
Ute presumption applies is to identify whether the plaintiff’s claim is founded on a fraudulent
omission. This in turn depends upon which of the three subsections in Rule 10b-5 forms the
basis for the plaintiff's complaint.”); Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 359 (5th
Cir. 1987) (in Affiliated Ute, “the Supreme Court held that the 10b-5 plaintiff does not have
to present positive proof of reliance in all securities fraud settings.”).

9 Appellants point to one district court case purporting to extend the application of the
Ute presumption outside of the federal securities context. In In re Great S. Life Ins. Co. Sales
Practices Litig., 192 F.R.D. 212, 220 (N.D. Tex. 2000), the court acknowledged that “Ute
involved an interpretation of a federal securities statute.” The court, however, cited another
district court decision for the general proposition that, in Ute, “the ‘Supreme Court held that
positive proof of reliance is unnecessary in cases involving primarily a failure to disclose.’”
Id. (quoting Steiner v. Southmark Corp., 734 F. Supp. 269, 275 (N.D. Tex. 1990)).
Importantly, Steiner is itself a federal securities case involving a claim brought under Rule
10b-5, and thus does not support the extension of the Ute presumption to claims of common
law fraud. Id. at 272.

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Because the Ute presumption does not apply, the only issues common to
the Obstructed-View Class were breach of contract and whether the NFL had
a duty to disclose any obstructed views of the field or the video board. The
district court held these issues were outweighed by individual issues of
materiality, damages, and reliance. The court did not abuse its discretion in
determining that individual issues predominated and that class certification
was inappropriate. See Crutchfield v. Sewerage & Water Bd. Of New Orleans,
No. 15-30709, slip op. at 6 (5th Cir. July 13, 2016 (“[A] district court’s expertise
in case management and overseeing trials is particularly useful in making the
predominance and superiority inquiries of Rule 23(b)(3), which require
envisioning what a class trial would look like”).
D. Jury Instruction
This court reviews under the abuse of discretion standard a district
court’s refusal to provide a requested jury instruction. Cooper Indus., Inc. v.
Tarmac Roofing Sys., Inc., 276 F.3d 704, 714 (5th Cir. 2002). This court will
reverse the district court’s decision “only if the requested instruction (1) was a
substantially correct statement of the law, (2) was not substantially covered in
the charge as a whole, and (3) concerned an important point in the trial such
that the failure to instruct the jury on the issue seriously impaired the
defendant’s ability to present a given defense.” Id.
“A promise to do an act in the future is actionable fraud when made with
the intention, design and purpose of deceiving, and with no intention of
performing the act.” Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434
(Tex. 1986). In other words, a breach of contract is only actionable as
fraudulent inducement if it is “coupled with a showing that the promisor never
intended to perform under the contract.” Kevin M. Ehringer Enters., Inc. v.
McData Servs. Corp., 646 F.3d 321, 325 (5th Cir. 2011).

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No. 15-10242
The district court gave a jury instruction stating the elements of
fraudulent inducements as pronounced by the Texas Supreme Court in
DeSantis, 793 S.W.2d at 688. Appellants do not challenge that instruction.
Rather, they challenge the district court’s refusal to give an additional
instruction on fraud through failure to disclose. 10 Appellants assert that by
refusing to give the proposed instruction, the district court prevented the jury
from considering whether the NFL committed fraud by failing to disclose
material facts concerning the obstructed view of the playing field.
The sole tort claim remaining when the case went to trial was a claim of
fraudulent inducement, and the district court gave a correct, complete
instruction on that claim. Appellants cite to Kajima Int’l, Inc. v. Formosa
Plastics Corp., USA, 15 S.W.3d 289 (Tex. App.—Corpus Christi 2000, no pet.),
to argue that their fraudulent inducement claim can be proven with fraudulent
conduct occurring after the execution of a contract. The court in Kajima,
however, made clear that the consideration of post-execution fraud evidence
was necessary because the defendant made post-execution promises in order
to induce the plaintiff into continuing its performance. Id.
Conversely here, there was no continued performance induced by post-
execution fraud; there was only the single ticket contract—a promise of future
performance given in exchange for the ticket price. Texas law is clear that a
promise of future performance is actionable as fraudulent inducement when it

10 Proposed Jury Instruction No. 18 read: As to plaintiffs [INSERT PLAINTIFFS’
NAMES HERE], you may also conclude that the NFL committed fraud through a failure to
disclose. The elements of fraud through a failure to disclose must be proven by a
preponderance of the evidence: First, the NFL failed to disclose a material fact within the
knowledge of the NFL; Second, the NFL knew that the plaintiff at issue is ignorant of the
fact and does not have an equal opportunity to discover the truth; Third, the NFL intended
to induce the plaintiff at issue to take some action by failing to disclose the fact, and Fourth,
the plaintiff at issue suffered some injury as a result of acting without knowledge of the
undisclosed fact.

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No. 15-10242
is “made with the intention, design and purpose of deceiving and with no
intention of performing the act.” Spoljaric, 708 S.W.2d at 434. Because the
district court gave a correct instruction on fraudulent inducement, the court
did not abuse its discretion in declining to give the proposed jury instruction. 11
CONCLUSION
We find no error in the district court’s 12(b)(6), Rule 56, and directed
verdict rulings. We also hold that the district court did not abuse its discretion
in denying to give Appellants’ proposed jury instruction. Finally, in denying
class certification, the district court carefully applied the class certification
principles to each class, and we agree with its conclusions. Accordingly, we
AFFIRM.

11 Appellants briefly argue that the district court erred in granting a directed verdict
on their punitive damages request (based on their obstructed view of the video board fraud
claim). Because the court properly dismissed the fraud claim on summary judgment, this
argument is meritless.
The district court did grant in part the NFL’s Rule 50 Motion for Judgment as a
Matter of Law, holding that no reasonable jury could find fraud by clear and convincing
evidence and thus Appellants were not entitled to exemplary damages as a matter of law.
That ruling, however, is not expressly appealed, and any challenge to it is waived. See Yohey
v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
25