IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10242

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

United States Court of Appeals

Fifth Circuit

FILED

September 9, 2016

Lyle W. Cayce

Clerk

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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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“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-ofthe-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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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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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.

 

4 The 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 cases5 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

 

5 Hawkins 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 nonperformance, 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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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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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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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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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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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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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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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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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 postexecution 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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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).

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