* District judge for the Western District of Texas, sitting by designation.

1 REVISED FEBRUARY 17, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 01-51045

__________________________

DONNIE McMANUS and JUNE McMANUS,

Plaintiffs-Appellees,

versus

FLEETWOOD ENTERPRISES, INC., ET AL,

Plaint iffs,

FLEETWOOD ENTERPRISES, INC.,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

for the Western District of Texas

___________________________________________________

February 14, 2003

Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and HUDSPETH, District Judge. *

EDITH BROWN CLEMENT, Circuit Judge:

The district court certified a subclass of plaint iffs who purchased Class A m otor homes in Texas

from defendant Fleetwood Enterprises, Inc., a California corporation, between 1994 and 1999.

Representative plaint iffs Donnie and June McManus allege that Fleetwood misrepresented the towing2

capacity of its m

otor homes. They seek injunctive relief under Federal Rule of Civi l Procedure

23(b)(2) and, in the alternative, damages under Rule 23(b)(3). The district court abused its discretion

in certifying the class under Rule 23(b)(3), except with regard to the McManuses’ claim for breach

of implied warranty of merchantability. The district court also abused its discretion in certifying the

class under Rule 23(b)(2). We affirm in part, and reverse and remand in part.

I. FACTS AND PROCEEDINGS

The McManuses purchased a Fleetwood m otor home in Texa s in 1997, with the intention of

towing a Jeep Che ro kee behind it. Donnie McManus noticed a tag affixed to the wardrobe door

stating that the m

otor home could tow 3,500 pounds, and the sales representative assured him that

the m otor home would be able to tow a Jeep Cherokee. The wardrobe door tag was titled

“CARRYING CAPACITY” and it listed various statistics, including an entry reading “GTW 3500

LBS .” The tag explained:

GTW (Gross Towed Weight): means the maximum permissible loaded weight of a trailer or

car that this m

otor home has been designed to tow. This cannot be increased by changing the

trailer hitch.

The bottom of the tag stated in large, bolt print:

CONSULT OWNER’S MANUAL FOR WEIGHING

INSTRUCTIONS AND TOWING GUIDELINES

A Fleetwood engineer contacted Fleetwood’s chassis manufacturers in 1994 and discovered that,

according to the chassis manufacturers, the m otor homes would require supplemental brakes to safely

tow 3,500 pounds. For exa mple, Ford t old Fleetwood that its motor homes would require

supplemental brakes when towing anything abo ve 1,500 pounds. The engineer concluded in a

company memorandum, “To assure safe operati on of our products, the wardrobe door tag, owners1 Where General Motors was the chassis manufacturer, the relevant information was in the

service manual, not the chassis manufacturer’s manual. Fleetwood sent letters to purchasers of

motor homes equipped with a GM chassis to clarify any confusion.

3 manual and advertising material should reflect two GCW’s [gross combination weight], one for towed

loads without brakes and one for towed loads with brakes.”

The McManuses allege that the representation that the m otor home could safely tow 3,500 pounds

amounted to a representation that it could safely brake while towing 3,500 pounds. Their complaint

asserts the following five claims: (1) violation California’s Consumers Legal Remedies Act, C AL C IV

.

C ODE §§ 1750-1784; (2) breach of express warranty; (3) breach o f implied warranty of

merchantability under California’s Song-Beverly Consumer Warranty Act, C AL C IV

. C ODE § 1792;

(4) negligent misrepresentation; and (5) fraudulent concealment. They seek injunctive relief under

Federal Rule of Civil Procedure 23(b)(2) to compel Fleetwood to provide each c lass member

information concerning the towing limitations, as well as su pplemental braking equipment. In the

alternative, the McManuses seek money damages under Rule 23(b)(3).

Fleetwood counters, in short, that the wardrobe tag was accurate because it said nothing about

supplemental brakes, and because it conspicuously led the consumer to a paper trail that would reveal

the relevant information. The tag directed the consumer to the m otor hom e owner’s manual, which

directed the consumer to the chassis manufacturer’s manual containing the relevant towi ng

limitations. 1

The district court originally certified a nationwide class of all persons who purchased new, and

still owned, a Fleetwood Class A m otor home manufactured between 1994 and 1999. On a motion

for reconsideration to take into account Spence v. Glock

, 227 F.3d 308 (5t h Cir. 2000), which

impacts class certification in cases dealing with multistate cho ice-o f-law issues, the district court4

decertified the national class. Following oral argument on their supplemental motion for certification

of a nat io nwide class, the McManuses filed a motion indicating that they wished to proceed with

certification of a Texas-onl y subclass. The district court granted the post-hearing motion and

certified the subclass, with no apparent opposition from Fleetwood. Fleetwood then filed a motion

for reconsideration, prompting the district court to withdraw its previous order. After considering

Fleetwood’s new objections to the Texas-only subclass, the district court issued an order concluding

that a Texas-only subclass was proper under both Rule 23(b)(2) and Rule 23(b)(3). As a preliminary

determination in deciding that the Rule 23 class action prerequisites were met, the district court also

concluded, contrary to the McManuses’ assertions, that Texas law would govern the dispute instead

of California law.

II. DISCUSSION

The McManuses now concede that Texas law governs the dispute, so the only issue for t his

interlocutory appeal is the propriety of the district court’s certification decision, which we review for

abuse of discretion

. S

pence, 227 F.3d at 310-11. “The decision to certify is within the broad

discretion of the court, but that decision must be exercised within the framework of [R]ule 23. The

party seeking certification bears the burden of proof.” Castano v. Am. Tobacco Co. , 84 F.3d 734,

740 (5th Cir. 1996) (internal citations omitted). Although “the strength of a plaintiff’s claim should

not affect the certification decision,” the district court must look beyond the pleadings to “understand

the claims, defenses, relev ant facts, and applicable substantive law in order to make a meaningful

determination of the certification issues.” Id

. at 744.

Under Rule 23, plaintiffs must first define the class with specificity and show they are members

of the cl ass. F

orbush v. J.C. Penney Co.

, 994 F.2d 1101, 1105 (5th Cir. 1993). They must then2 Fleetwood’s primary argument is that the class members’ claims are too dissimilar for

class treatment, particularly with respect to the issue of whether the class members relied on the

representations of the wardrobe tag. This argument could be construed as a challenge to two of

the Rule 23(a) requirements, (2) commonality and (3) typicality. However, since the thresholds

for commonality and typicality are not high, see James v. City of Dallas , 254 F.3d 551, 570-71

(5th Cir. 2001), we evaluate the argument as against the more exacting demands of Rule 23(b)(3)

and Rule 23(b)(2).

5 establish all four requirements of Rule 23(a). S hivangi v. Dean Witter Reynolds, Inc.

, 825 F.2d 885,

890 ( 5th Cir. 1987). These requirements are: “(1) the class is so numerous that joinder of all

members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims

or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the

representative parties will fairly and adequately protect the interests of the class.” F E D

. R. C IV

. P.

23(a). Fleetwood does not challenge the district co urt’s conclusion that plaintiffs have met these

requirements. 2 In addition to sat isfying the above requirements, the parties seeking class certification

must show that the action is maint ainable under Rule 23(b)(1), (2), or (3). F E D

. R. C IV

. P. 23(b). We

consider the district court’s decision under Rule 23(b)(3) and Rule 23(b)(2), in turn.

A. Certification is only proper under Rule 23(b)(3) for the McManuses’ claim for breach of

implied warranty of merchantability

Under Rule 23(b)(3), the district court may certify a class where it determines “that the questions

of law or fact common to the members of the class predominate over a n y questions affecting only

ind ividual members, and that a class action is superior to other available methods for the fair and

efficient adjudicat ion of the controversy .” F ED

. R. C IV

. P. 23(b)(3). Fleetwood argues that the

common questions of fact do not predominate over individual matters. In particular, Fleetwoo d

asserts that since each of the plaint iffs’ claims requires a show ing of reliance on the alleged

misrepresentation, the district court abused its discretion in certifying the class under Rule 23(b)(3).6

The McManuses respond that the district court may presume class-wide reliance because the same

information—that the m

otor homes could tow 3,500 pounds—was given to all of the class members.

1. Reliance may not be presumed under Texas law

The McManuses rely u pon L ife Ins. Co. of Southwest v. Brister

, 722 S.W.2d 764 (Tex. App.

1986) and Reserve Life Ins. Co. v. Kirkland

, 917 S.W.2d 836 (Tex. App. 1996) for the proposition

that Texas law permits a class-wide presumption of reliance. In each case, the appellate court

determined that the proposed class members had a “sufficient community of interest,” Brister , 722

S.W.2d at 774, to just ify certification under Texas Rule of Civil Procedure 42. S ee Kirkland

, 917

S.W.2d at 843-44; Brister , 722 S.W.2d at 773-75. The result was premised on the view that Texas

co urts “should err in favor and not against the maintenance of the class action since the class

certification order is always subject to modification should later developments during the course of

the trial so require.” Brister

, 722 S.W.2d at 774-75. The Texas Supreme Court has since overruled

those cases, explicitly “reject[ing] this appro ach o f certify now and worry later.” S outhw estern

Refining Co. v. Bernal , 22 S.W.3d 425, 435 (Tex. 2000).

The Bernal court emphasized that “ [p]rocedural devices may ‘not be construed to enlarge or

diminish any substantive rights or obligations of any parties to any civil action.’” Id

. at 437 (citing

T EX

. R. C IV

. P. 815). In a particularly instructive post- Bernal case, the Texas Supreme Court held

that issues of reliance defeated the predominance requirement of Rule 42 in a class action alleging,

among other things, that advertising for dental office management software was false and misleading:

[T]he 20,000 class members in t he present case are held to the same standards of proof of

reliance—and fo r t hat matter all the other elements of their claims—that they would be

required to meet if each sued individually. This does not mean, of course, that reliance or

other elements of their causes of action cannot be proved class-wide with evidence generally

applicable to all class members; class-wide proof is possible when class-wide evidence exists.7

But evidence insufficient to prove reliance in a suit by an individual does not become

sufficient in a class action simply b ecause t here are more plaintiffs. Inescapably individual

differences cannot be concealed in a throng. The procedural device of a class action eliminates

the necessity of adducing the same evidence over and over again in a multitude of individual

actions; it does not lessen t he qualit y of evidence required in an individual action or relax

substantive burdens of proof.

Henry Schein, Inc. v. Stromboe , ___ S.W.3d___, No. 00-1162, 2002 WL 31426407, at *13 (Tex.

Oct. 31, 2002).

We note additionally that neither Brister nor Kirkland speaks to the substantive standard of proof

of the underlying causes of action; those cases are concerned only with the procedural standard to

justify certification under Texas procedural law. Since we are bound to follow Federal Rule of Civil

Procedure 23, not Texas’ corresponding Rule 42, Brister and Kirkland are not instructive to the

issue. As Bernal and Henry Schein make clear, Texas law does not permit the type of presumed

reliance urged by the McManuses.

2. Reliance issues are fatal to a Rule 23(b)(3) class for claims of fraudulent concealment and

negligent misrepresentation

“Claims for money damages in which individual re liance is an element are poor candidates for

class treatment, at best. We have made that plain.” Patterson v. Mobil Oil Corp.

, 241 F.3d 417, 419

(5th Cir. 2001); see also Castano

, 84 F.3d at 745 (“[A] fraud class action cannot be certified when

individual reliance will be an issue.”). Here, it is undisputed that class members would only be entitled

to relief under theories of fraudulent concealment or negligent misrepresentation if they could show

they relied on the alleged misrepresentation. Reliance will vary from plaint iff to plaint iff, depending

on the circumstances surrounding the sale. For instance, Donnie McManus testified at his deposition

that he read the wardrobe door t ag and asked the salesperson about the towing capacity . June

McManus testified that she did not read the tag, nor did she draw any conclusion as to whether the8

m otor home would be able to tow a Jeep Cherokee. The individual reliance issues are apparent even

as between the two representative plaint iffs. Other potential class members certainly may have read

the wardro be do o r tag as Fleetwood reads it—as being silent on the issue of supplemental

brakes—and certainly some class members may have actually k nown at the time of pu rchase that

supplemental brakes would be needed. At this point in the litigation, the McManuses have failed to

show that these potential variables are sufficiently uniform to justify class treatment, and we conclude

that the district court abused its discretion in finding that questions of fact common to the class were

predominant, for purposes of Rule 23(b)(3), with respect to the McManuses’ claims for fraudulent

inducement and negligent misrepresentation.

3. The McManuses’ claim, under Rule 23(b)(3), for breach of express w arranty requires reliance

and is inappropriate for class treatment

The McManuses argue that their claim for breach of express warranty does not require a showing

of reliance, thereby avoiding the variable factual circumstances explained above. We disagree. Under

Texas law, an express warranty is created when a seller makes a representation or promise “which

relates to the goods and becomes part of the basis of the bargain . . . .” T EX

. B US

. & C OM

. C ODE §

2.313 (emphasis added). There is a split of authority as to whether that wording (from the U.C.C.)

is meant to dispense with the common law’s requirement of reliance in express warranty cases. See

Charles A. Heckman, “Reliance” or “Common Honesty of Speech”: The History and Interpretation

of Section 2-31 of the Uniform Commercial Code?

, 38 C ASE W. R ES

. L. R EV

. 1 (1987). The Texas

Supreme Court has concluded that “‘[b]asis of the bargain’ loosely reflects the common-law express

warranty requirement of reliance,” and that therefore an express warranty claim “requires a form of

reliance. ” Am. Tobacco Co., Inc. v. Grinnell

, 951 S.W.2d 420, 436 (Tex. 1997). (emphasis added).9

That court has recently characterized a breach of express warranty claim as requiring reliance “ to a

certain extent .” Henry Schein , ___ S.W.3d at ___, 20002 WL 31426407, at *7 (emphasis added).

Although the precise level of reliance required under Texas law to recover for breach of express

warranty is unclear, purchasers who understood the towing limitations, or who did not read or

consider the wardrobe door tag, cannot be said to have relied on the allegedly misleading wardrobe

tag to any extent. Thus, the McManuses have failed to show that the representations were part of the

“basis of the bargain” to such a uniform extent that class certification is appro priate under Rul e

23(b)(3) for the breach of express warranty claim.

4. The district court did not abuse its discretion in certifying the McManuses’ claim for breach

of implied w arranty of merchantability under Rule 23(b)(3)

The McManuses argue that their claim for breach of implied warranty of merchantability, see T EX

.

B US

. & C OM

. C ODE § 2.314, does not require a showing of reliance. S ee Khan v. Velsicol Chem.

Corp. , 711 S.W.2d 310, 319 (Tex. App. 1986). Fleetwood responds that the McManuses failed to

plead the claim, and in the alternative, that the claim is unsuitable for class treatment. We conclude

that the claims were properly pleaded, and that the district court did not abuse its discretion in

certifying a class for this claim under Rule 23(b)(3).

T he McManuses complaint enumerates five causes of action under separate headings: (1)

violation California’s Consumers Legal Remedies Act, C AL C IV

. C ODE §§ 1750-1784; (2) breach of

express warranty; (3) breach of implied warranty of merchantability under California’s Song-Beverly

Consumer Warranty Act, C AL C IV

. C ODE § 1792; (4) negligent misrepresentation; and (5) fraudulent

concealment. In a section of the complaint subtitled “CLASS ACTION” the McManuses state:

This is an action sought to be certified as a class action pursuant to Rule 23 of the Federal

Rules of Civil Procedure. This action involves Defendant’s violations of the state consumer10

protecti on laws, in particular California Consumer Legal Remedies Act and the Song-Beverly

Warranty Act, as well as, alternatively, the corresponding consumer protection laws of other

states , in the sale of motor homes to its customers.

Second Amende d Compl. at ¶ 7 (emphasis added). The McManuses argue that Texas’ implied

warranty of merchantability provi sio n is included in their broadly worded complaint as a

“corresponding consumer protection law[]” of Texas. Fleetwood points out that the Texas implied

warranty of merchantability claim would “correspond[]” only to California’s identical statute (both

from the U.C.C.)— a statute explicitly not pleaded. Compare T EX

. B US

. & C OM

. C ODE § 2.314 with

C AL

. C OM

. C ODE § 2314.

“The notice pleading requirements of Federal R ule o f Civil Procedure 8 and case law do not

require an inordinate amount of detail or precision.” St. Paul Mercury Ins. Co. v. Williamson

, 224

F.3d 425, 434 (5th Cir. 2000). The plaint iff need not correctly specify the legal theory, so long as the

plaintiff alleges facts upon which relief can be granted. Id . Here, the McManuses pleaded a version

of implied warranty under a Califo rnia statute. Now that it is agreed Texas law applies, the most

natural reading of the McManuses’ broadly-worded complaint would include some version of that

claim under Texas law. Moreover, the McManuses’ complaint alleges that their m otor home was not

“fit for the ordinary purposes for which those vehicles are used,” Second Amended Compl. at ¶ 44,

tracking the language of the relevant Texas statute. T EX

. B US

. & C OM

. C ODE A NN

. § 2.314 (“Goods

to be merchantable must be at least such as.

. . are fit for the ordinary purposes for which such goods

are used. . . .”).

We note also that the McManuses’ specific ally mentioned Texas’ implied warranty

provision—and the fact that it does not require a showing of reliance—in its motion for certification

of a Texas-only subclass. Fleetwood failed to argue to t he dist rict court that the implied warranty11

claim had not been pleaded properly, and the distric t court’s order mentions implied warranty of

merchantability under Texa s law. We conclude that the claim is properly encompassed in the

pleadings.

The McManuses’ theory is that the m otor homes were not “fit for the ordinary purposes for which

such goods are used.” T EX

. B US

. & C OM

. C ODE A NN

. § 2.314

. In other words, the m otor homes are

no t fit for the ordinary purpose of towing because they cannot safely tow a normal car witho ut

supplemental breaks. Fleetwood argues that the m otor hom es a re fit for their ordinary purpose.

Keeping in mind that “the strength of a plaint iff’s claim should not affect the certification decision,”

Castano , 84 F.3d at 744, we find this line of argument inapposite for purposes of this appeal.

Under Texas law, “[a] plaint iff in an implied warranty of merchantability case has the burden of

proving that the goods were defective at the time they left the manufacturer’s or seller’s possession.”

Plas-Tex, Inc. v. U.S. Steel Corp.

, 772 S.W.2d 442, 444 (Tex. 1989). It i s undi sputed that

Fleetwood’s Class A m

otor homes were equipped with a hitch for towing, and whether or not the

alleged t o wing limitations rendered the motor homes defective is a question for the jury. More

importantly, it is a question whose answer will not vary from plaint iff to plaint iff because the inquiry

is focused on “ the time [the goods] left the m anufacturer’s or seller’s possession

. ” Id

. (emphasis

added).

Fleetwood asserts that the measure of damages will vary from plaint iff to plaintiff, pointing out

that the McManuses, for example, were not damaged at all. Donnie McManus testified at his

deposition that he was able to tow his Jeep Cherokee behind his m otor home witho ut the use of

supplemental brakes. Fleetwood emphasizes that the McManuses have not shown a ny class members3 We note, however, that Donnie McManus stated in an affidavit that on one occasion

when he was towing his Jeep Cherokee, the motor home’s brakes began to give way and

McManus was forced to downshift his motor home and pull over to the side of the road.

12 were act ually injured. 3 These arguments misapprehend the nature of the implied warranty of

merchantability cause of action. In this contract cause of action, the McManuses seek the difference

in the actual value of the motor home and the value as warranted. S ee T EX

. B US

. & C OM

. C ODE §

2.714(b). “Here, the damages sought by the [McManuses] are not rooted in the alleged defect of the

pro duct as such, but in the fact that they did not receive the benefit of their bargain.” C oghlan v.

Wellcraft Marine Corp.

, 240 F.3d 449, 455 n.4 (5th Cir. 2001). Thus, whether or not any member

of the class actually suffered any physical injury is immaterial. Likewise, it is immaterial whether or

not the class members even intended to use their m otor homes for towing because all a jury need

det ermine is that the motor homes were defective with respect to a motor ho me’s

“ ordinary purpose.” T EX

. B US

. & C OM

. C ODE A NN . § 2.314 (emphasis added).

We conclude that the district court did not abuse its “broad discretion,” Castano

, 84 F.3d at 740,

in certifying the McManuse s’ claim for breach of implied warranty of merchantability under Rule

23(b)(3).

B. Certification under Rule 23(b)(2) is improper

Certification under Rule 23(b)(2) is appropriate where “the party opposing the class has acted or

refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive

relief or corresponding declaratory relief with respect to the class as a whole.” F E D

. R. C IV

. P

.

23(b)(2). Fleetwood argues that, considering the variable purchasing scenarios, Fleetwood has not

“acted or refused to act on grounds generally applicable to the class.” We disagree. Rule 23(b)(2)’s

requirement that a defendant have acted consistently towards the class is plainly more permissive than13

23(b)(3)’s requirement that questions common to the class predominate over individual issues. Here,

the McManuses assert that Fleetwood made the exact same allegedly misleading representation to

all the class members—i.e., that the m otor homes could safely tow 3,500 pounds. We conclude that

the district court did not abuse its discretion in finding that this cons t it ut ed an action “generally

applicable to the class.”

Fleetwood next argues that Rule 23(b)(2) certification is not appropriate w hen the suit

predominately seeks money damages. See Bolin v. Sears, Roebuck & Co.

, 231 F.3d 970, 975 (5th

Cir. 2000) ; Allison v. Citgo Petroleum Corp. , 151 F.3d 402, 413 (5th Cir. 1998). This Court in

Alli son held t hat “monetary relief predominates in (b)(2) class actions unless it is incidental to

requested injunctive or declaratory relief.” Allison , 151 F.3d at 415.

Here, unlike B olin and Allison

, the district court certified the class under both (b)(2) and (b)(3),

and the plaint iffs seek injunctive relief and damages relief as alternative remedies. Thus, Allison and

Bolin are slightly off the mark. We need n o t ask whether damages “predominate”; we ask only

whet her injunctive relief, t o the exclusion of damages, is appropriate under Rule 23(b)(2). We

conclude that it is not.

“(S)ubdivision (b)(2) was added to Rule 23 in 1966 primarily to facilitat e the bringing of class

actions in the civil rights area.” Kincade v. Gen. Tire & Rubber Co.

, 635 F.2d 501, 506 n.6 (5th Cir.

Jan. 1981) (quoting 7A C. Wright & A. Miller, F EDERAL P RACTICE & P ROCEDURE § 1775 (1972)).

The advisory committee’s notes state that Rule 23(b)(2) would be appropriate in a case to enjoin

price discrimination , o r in a case to enjoin illegal “tying.” F E D

. R. C IV

. P. 23(b)(2) advisory

committee’s note. Rule 23(b)(2) has also been used extensively to obtain injunctive relief against the

enforcement of various complex sta tutory schemes. S ee 7A C. Wright, et al., F EDERAL P RACTICE AND14

P ROCEDURE § 1775, at 484 (2d ed. 1986).

Unlike Rule 23(b)(3), class members are not permitted to opt-out of a Rule 23(b)(2) class t o

pursue their claims individually. See F ED

. R. C IV

. P. 23(c)(2). “[B]ecause of the group nature of the

harm alleged and the broad character of the relief sought, the (b)(2) class is, by its very nat ure,

assumed to be a homogeneous and cohesive group with few conflicting interests among its members.”

Allison , 151 F.3d at 413. This Court has explained:

Actions for clas s-wide injunctive or declaratory relief are intended for (b)(2) certification

precisely because they involve uniform group remedies. Such relief may often be awarded

without requiring a specific or time-consuming inquiry into the varying circumstances and

merits of e ach class member’s individual case. When it does, the relatively complex

calculations typically required in class actions for money damages are unnecessary. For these

reasons, proposed (b)(2) classes n eed not withstand a court’s independent probe into the

superiority of the class action over other available methods of adjudication or the degree to

which common issues predominate over those affecting only individual class members, as

(b)(3) classes must.

Id . at 414.

The McManuses’ lawsuit is markedly different from t he paradigm Rule 23(b)(2) class action.

First, the ordinary relief for their lawsuit would be money damages, not injunctive relief. See T EX

.

B US

. & C OM

. C ODE § 2.714(b) (“The measure of damages for breach of warranty is the difference

at the time and place of acceptance between the value of the goods accepted and the value they would

have had if they had been as warranted, unless special circumstances show proximate damages of a

d ifferent amount.”); Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc. , 960

S.W.2d 41, 49 (Tex. 1998) (“Texas recognizes two mea sures o f direct damages for common-law

fraud: the out-of-pocket measure and the benefit-of-the-bargain measure.”); Fede ral Land Bank

Ass’n of Tyler v. Sloane

, 825 S.W.2d 439, 442 (Tex. 1991) (“The damages recoverable for a

negligent misrepresentation are those necessary to compensate the plaint iff for the pecuniary loss to4 The McManuses’ request for a safety notice is inappropriate under Rule 23(b)(2) because

it is undisputed that the motor home purchasers have received the relevant information either by

letter from Fleetwood, or in their chassis owner’s manual.

15 him of which the misrepresentation is legal cause. . . .”).

Second, Fleetwood sold its m otor homes over a limit

ed period of time to a limit ed nu m ber of

purchasers and does not have an ongoing relationship with its purchasers. Third, Fleetwood would

have to prov ide i ndividual relief, based on the various models of m otor homes, to each individual

plaintiff having purchased a motor home between 1994 and 1999, as opposed to a “uniform group

remed[y],” Allison ,151 F.3d at 414.

These sharp differences make the class-wide injunctive relief contemplated under Rule 23(b)(2)

inappro priate to this case. We could find no case where injunctive relief was awarded under

comparable circumstances. This result is unsurprising because damages would be the superior

remedy, especially considering tha t so me class members may already own, or have no need for,

supplemental brakes. We emphasize that otherwise inappropriate injunctive relief does not become

appropriate for class trea t ment merely because the more permissive Rule 23(b)(2), as opposed to

(b)(3), contemplates inj unct ive relief. The district court abused its discretion in allowing the Rule

23(b) classifications to inform the appropriate remedy, instead of vice versa. 4

Moreover, permitting this laws uit t o continue as a Rule 23(b)(2) class would undo the careful

interplay between Rules 23(b)(2) and (b)(3). That is, the class members would potentially receive a

poor substitute for individualized money damages, without the correspond i ng notice and opt-out

benefits of Rule 23(b)(3); and defendants would potentially be forced to pay what is effectively money

damages, without the benefit of requiring plaint iffs to meet the ri gorous Rule 23(b)(3) requirements.

Cf. Bolin

, 231 F.3d at 976 (reiterating our concern that “plaint iffs may attempt to shoehorn damages16

actions into the Rule 23(b)(2) framewo rk, depriving class members of notice and opt-out

protections”). We conclude that the district court abused its discretion in certifying the class under

Rule 23(b)(2).

III. CONCLUSION

The judgment of the district court is affirmed in part, and reversed and remanded in part.