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United States Court of Appeals
Fifth Circuit
F I L E D
In the
October 5, 2004
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit
Clerk
_______________
m 03-40691
_______________
BERT A. ROBINSON,
ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED;
MARY LUMAN,
ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED;
TOYIA URBANIAK,
ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED;
KIRK T. GARNER,
ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
VERSUS
TEXAS AUTOMOBILE DEALERS ASSOCIATION; ET AL.,
Defendants,
TEXAS AUTOMOBILE DEALERS ASSOCIATION;
ALLISON CHEVROLET,
DOING BUSINESS AS ALLISON CHEVROLET OLDSMOBILE;
BASS CHEVROLET,
DOING BUSINESS AS PETERS CHEVROLET;
MILE PILE AUTOPLEX,
DOING BUSINESS AS MIKE PILE JEEP-EAGLE;
ALFORD CHEVROLET-GEO; ET AL.;
PLAINS CHEVROLET, INC.,
DOING BUSINESS AS HIGH PLAINS AUTO CENTER;
WESTGATE CHEVROLET,
DOING BUSINESS AS WESTGATE KIA, DOING BUSINESS AS RAY JONES CHEVROLET;
W.O. BANKSTON LINCOLN-MERCURY, INC.,
DOING BUSINESS AS W.O. BANKSTON LINCOLN-MERCURY SAAB, INC.;

W.O. BANKSTON NISSAN; BANKSTON NISSAN IN IRVING, INC.; ET AL.;
GENE MESSER CADILLAC; GENE MESSER IMPORTS;
GENE MESSER FORD, INC.,
DOING BUSINESS AS GENE MESSER KIA, DOING BUSINESS AS CREDIT CONNECTION,
DOING BUSINESS AS FORD ESP. SW REG. PROC. CTR.,
DOING BUSINESS AS GENE MESSER VOLKSWAGEN;
GENE MESSER FORD OF AMARILLO, INC.,
DOING BUSINESS AS GENE MESSER CADILLAC, DOING BUSINESS AS GENE MESSER JEEP/EAGLE;
FOYT MOTORS, INC.,
DOING BUSINESS AS A.J. FOYT HONDA;
SMC LUXURY CARS, INC.,
DOING BUSINESS AS STERLING MCCALL LEXUS;
SOUTHWEST TOYOTA, INC.;
RODEO CHRYSLER-PLYMOUTH, INC.,
DOING BUSINESS AS RODEO DODGE, DOING BUSINESS AS VILLAGE CHRYSLER-PLYMOUTH;
MIKE SMITH AUTOPLAZA,
DOING BUSINESS AS MIKE SMITH HONDA, DOING BUSINESS AS MIKE SMITH MITSUBISHI,
DOING BUSINESS AS MIKE SMITH JEEP/EAGLE;
TOWN NORTH IMPORTS,
DOING BUSINESS AS TOWN NORTH MITSUBISHI;
TOWN NORTH NISSAN; TOWN NORTH SUZUKI,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
Before SMITH, GARZA, and PICKERING,
("TADA") and some of its members appeal,1
Circuit Judges.
pursuant to FED. R. CIV. P. 23(f), the condi-
tional certification of a plaintiff class of mil-
JERRY E. SMITH, Circuit Judge:
The Texas Automobile Dealers Association
1 Defendants submitted three briefsSSone from
TADA and two from individual dealers. Because
they contain similar arguments, we refer to them
collectively.
2

lions of consumers who have purchased a car
Alleging violations of section 4 of the
in Texas since 1994. Because the proposed
Clayton Act4 and section 1 of the Sherman
class does not meet the requirements of FED.
Act,5 plaintiffs sued the TADA and most deal-
R. CIV. P. 23(b)(3), we reverse the certifica-
erships6 that adopted the TADA plan. Spe-
tion and remand.
cifically, plaintiffs allege that, by uniformly
imposing the VIT as a line item, defendants are
I.
engaged in horizontal price-fixing, conspired
Effective January 1, 1994, Texas altered the
to create a horizontal price-fixing regime, and
manner in which it calculated and assessed the
have been unjustly enriched.
Vehicle Inventory Tax ("VIT") imposed on
automobile dealers. Before the alteration, the
Plaintiffs moved to certify plaintiff and de-
tax was just another overhead expense to be
fendant classes based on FED. R. CIV. P. 23-
absorbed as part of the sales price. As a result
(b)(2)7 and (3),8 proposing a class consisting of
of the amendments, the state began calculating
the VIT as a percentage of the sales price of
each car sold.
3(...continued)
as the VIT.
Based on the recommendations of the Com-
missioner of the Office of Consumer Credit
4 15 U.S.C. � 15 (stating that "any person who
and of the Texas Comptroller of Public
shall be injured in his business or property by rea-
Accounts, and on a statement from a sponsor
son of anything forbidden in the antitrust laws may
of the legislation, the TADA advised2 its
sue therefor[,] without respect to the amount in
members to itemize the VIT as a separate item
controversy, and shall recover threefold the dam-
on each sales contract and to charge it in ad-
ages by him sustained, and the cost of suit, in-
dition to the regular "sales" or "cash" price.
cluding a reasonable attorney's fee").
Although dealerships could pursue the previ-
5 15 U.S.C. � 1 ("Every contract, combination
ous approach of including the VIT as an un-
in the form of trust or otherwise, or conspiracy, in
disclosed part of the listed sales price, a large
restraint of trade or commerce among the several
number of dealerships followed the TADA
States, or with foreign nations, is hereby declared
protocol and listed the VIT3 separately.
to be illegal.").
6 Plaintiffs sued those dealerships that belonged
2 The TADA did not require its members to
to the TADA and charged a VIT. Plaintiffs allege
follow this plan. It did, however, distribute stan-
the presence of "approximately 600 defendant
dardized forms and did conduct numerous "educa-
Dealers." The district court provided a larger
tional sessions" to promote this particular ap-
figure, stating that "the court does have some
proach. Not surprisingly, the two sides view the
concerns over the manageability of a suit against
educational program and its recommendations
over a thousand defendants."
through different lenses.
7 Rule 23(b)(2) allows for injunctive relief
3 Some dealerships used different terms for the
where "the party opposing the class has acted or
separate charge, including, inter alia, "ad valorem
refused to act on grounds generally applicable to
tax," "personal property tax fee," and "VIT." For
the class[.]" The district court denied the rule
the sake of convenience, we refer to this extra fee
23(b)(2) motion in one paragraph, and plaintiffs do
(continued...)
(continued...)
3

all persons and entities who purchased a
individual issues10 and opining that, despite the
new or used motor vehicle in Texas during
court's "concerns over the manageability of a
the period of January 1, 1994 through the
suit against over a thousand defendants[,] this
date of class certification herein, from a
class action is the superior method for ad-
motor vehicle dealership which was a mem-
judicating this controversy."
ber of the [TADA] at the date of sale, and
who were charged a `vehicle inventory tax,'
II.
`inventory tax,' `Texas vehicle inventory
The district court erroneously certified the
tax,' `ad valorem tax,' ` personal property
plaintiff class. Facts necessary to sustain a
tax fee,' `P/P tax fee,' `VIT,' or similarly
possible horizontal price-fixing injury do not
identified ` fee or charge' as an addition to
predominate. Additionally, the district court
the sales price or cash price of the vehicle .
did not conduct sufficient inquiry into the man-
. . .
agement of this complex, multiparty action.
As the district court noted, "Potentially, mil-
"We review the certification of a class for
lions of consumers are included in the pro-
abuse of discretion." O'Sullivan v. Country-
posed class."
wide Home Loans, Inc., 319 F.3d 732, 737
(5th Cir. 2003). To make a determination on
Although declining to certify a defendant
class certification, a district court must con-
class,9 the court conditionally certified the
duct an intense factual investigation. "There
proposed plaintiff class, finding that common
are no `hard and fast rules . . . regarding the
issuesSSincluding the common presence of the
suitability of a particular type of antitrust case
VIT in all sales contractsSSpredominate over
for class action treatment.' Rather, `the
unique facts of each case will generally be the
determining factor governing certification.'"
7
Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294,
(...continued)
301 (5th Cir. 2003) (quoting Alabama v. Blue
not challenge that order.
Bird Body Co., 573 F.2d 309, 316 (5th Cir.
8 If the four requirements of rule 23(a) are met,
1978)).
a court may certify a class pursuant to rule 23-
(b)(3) if it "finds that the questions of law or fact
Although we review the certification deci-
common to the members of the class predominate
sion using a deferential standard, "[a] district
over any questions affecting only individual mem-
court must conduct a rigorous analysis of the
bers, and that a class action is superior to other
rule 23 prerequisites before certifying a class."
available methods for the fair and efficient adjudi-
Castano v. Am. Tobacco Co., 84 F.3d 734,
cation of the controversy." Rule 23(b)(3) also in-
740 (5th Cir. 1996). Additionally, the district
cludes a non-exclusive list of four "matters per-
court's "`decision must be exercised within the
tinent to the findings" of superiority and numer-
framework of Rule 23.'" McManus v. Fleet-
osity.
9 With respect to the defendant class, the court
concluded that "each Defendant has the absolute
10 As part of its analysis, the district court ap-
right to individually defend itself by presenting di-
plied the parol evidence rule to exclude possible
rect evidence of noninvolvement in any alleged
evidence regarding negotiations over those sales
conspiracy."
contracts.
4

wood Enters., 320 F.3d 545, 548 (5th Cir.
conditionally, "it does not follow that the
2003) (quoting Castano, 84 F.3d at 740). We
rule's requirements are lessened when the class
review a district court's conclusions of law de
is conditional."14 Castano, 84 F.3d at 741.
novo.11
III.
"The party seeking certification bears the
A.
burden of demonstrating that the requirements
In evaluating the predominance require-
of rule 23 have been met."12 Such require-
ment, we take care to inquire into the sub-
ments include both the four factors of rule
stance and structure of the underlying claims
23(a)SSnumerosity, commonality, typicality,
without passing judgment on their merits. "Al-
and adequacySSand the two requirements of
though `the strength of a plaintiff's claim
rule 23(b)(3). Because defendants do not con-
should not affect the certification decision,' the
test the plaintiffs' satisfaction of the rule 23(a)
district court must look beyond the pleadings
requirements, we address only whether they
to `understand the claims, defenses, relevant
satisfied rule 23(b)(3).
facts, and applicable substantive law in order
to make a meaningful determination of the
"Rule 23(b)(3) demands of a party seeking
certification issues.'"15
class certification . . . the burden of demon-
strating (1) that questions common to the class
Despite the fact that such an inquiry "does
members predominate over questions affecting
not resolve the case on its merits," it helps
only individual members and (2) that class
"prevent[] the class from degenerating into a
resolution is superior to alternative methods of
series of individual trials." O'Sullivan, 319
adjudication of the controversy." Bell Atl.,
F.3d at 738. Making a meaningful determina-
339 F.3d at 297. Although such language may
tion of the certification issues "entails iden-
resemble the words of rule 23(a), "[t]he pre-
tifying the substantive issues that will control
dominance and superiority requirements are
the outcome, assessing which issues will pre-
`far more demanding' than is [R]ule 23(a)(2)'s
dominate, and then determining whether the
commonality requirement."13 Despite the fact
issues are common to the class." Id.
that the district court granted certification only
Plaintiffs assert three separate claims,16 but
11 O'Sullivan, 319 F.3d at 737 ("Because, how-
ever, a court abuses its discretion when it makes an
14 Castano, 84 F.3d at 741.
error of law, we apply a de novo standard of
review to such errors.").
15 McManus, 320 F.3d at 548 (quoting Cas-
tano, 84 F.3d at 744).
12 Id. at 737-38 (citing Allison v. Citgo Pe-
troleum Corp., 151 F.3d 402, 408 (5th Cir.
16 The plaintiffs originally alleged three different
1998)). See also Castano, 84 F.3d at 740 ("The
counts, two of whichSSthe horizontal price fixing
par ty seeking certification bears the burden of
and conspiracy to fix pricesSSfocus on the Clayton
proof.").
Act. The third charges unjust enrichment.
Although plaintiffs apparently did not request
13 O'Sullivan, 319 F.3d at 738 (quoting Am-
certification on the unjust enrichment count, the
chem Prods. v. Windsor, 521 U.S. 591, 624
district court recognized all three actions and
(1997)).
(continued...)
5

we need consider only whether they have de-
also called `impact,' means that the antitrust
fined a class whose members suffered an an-
violation must cause injury to the antitrust
titrust injury. One common factor links all as-
plaintiff." Id. "[I]n a price fixing case, impact
pects of the suitSSnamely, payment of the
may be shown simply by proof of purchase at
VIT. If the proposed class contains too broad
a price higher than the competitive rate." Id.
a sample of consumers for something action-
(citing Blue Bird, 573 F.2d at 317). Although
able under the Clayton Act to predominate, the
it "is generally true [that] `antitrust price-fixing
conspiracy claim will fail as well.17 If the mere
cases are particularly suitable for class action
payment of a VIT does not adequately tie the
treatment,'" the proposed class still has to
interests of the class members together for
meet the three aforementioned requirements.
purposes of any Clayton Act violations, the
Blue Bird, 573 F.2d at 322.19
class will similarly fail for any purported claim
of unjust enrichment.
Class members do not necessarily have to
demonstrate impact through individualized evi-
B.
dence. Instead, "by demonstrating, through
"Private antitrust liability under � 4 of the
generalized proof, that the competitive [price]
Clayton Act requires the showing of (1) a vi-
for groups of or for individual class members
olation of the antitrust laws, (2) the fact of
existed at least over a range, the highest point
damage, and (3) some indication of the
of which was less than the [price] actually
amount of damage." Nichols v. Mobile Bd. of
paid[,]" a party may rely on more general
Realtors, Inc., 675 F.2d 671, 676 (Former 5th
proof.20 Consequently, the baseline or "com-
Cir. 1982). Because this appeal concerns only
petitive" price determines whether a party may
class certification questions, we address only
use generalized proof to sustain a claim of hor-
whether the facts and law necessary to sustain
izontal price fixing.21
a horizontal price-fixing action predominate in
the proposed class.18
"The requirement of the `fact of damage,'
19 The Blue Bird panel, 573 F.2d at 322, de-
scribed some of the requirements of a "classic"
price-fixing conspiracy: "[A]ll legal and factual
16(...continued)
issues relating to the conspiracy" should bear a un-
generally certified the plaintiff class.
iform relationship "to all those allegedly harmed,"
and "the products involved [and] the purchasers
17 "Under the rule of reason, the plaintiff must
[should] be standardized."
establish two elements basic to an anticompetitive
conspiracy: (1) that the defendant engaged in some
20 Nichols, 675 F.2d at 678 (citing Bogosian v.
form of joint action and (2) that this joint action
Gulf Oil Corp., 561 F.2d 434, 455 (3d Cir. 1977)).
amounted to an unreasonable restraint of trade."
Consol. Metal Prods., Inc. v. Am. Petroleum Inst.,
21 Bogosian (which is not binding on us but
846 F.2d 284, 293 (5th Cir. 1988) (emphasis
which is informative) allows for generalized proof,
added).
provided plaintiffs show "a nationwide con-
spiracy[,] the result of which was to increase prices
18 Given the limited nature of the appeal, we
to a class of plaintiffs beyond the prices which
assume arguendo that the uniform addition and
would obtain in a competitive regime[.]"
itemization of the VIT violate the Clayton Act.
Bogosian, 561 F.2d at 455 (emphasis added).
6

The predominance of facts unrelated to the
final purchase price for every consumer in the
price-fixing claim should not provide support
class. Under plaintiffs' theory, if the charge
for certifying a class. Otherwise, commonali-
did not exist, the consumer would pay that
ties based on irrelevant matters such as geo-
much less, or at least some amount less.22 The
graphic location, sex of a party, or date of pur-
court adopted these assumptions in its
chase might allow for class certification. We
analysis.
must determine whether the mere payment of
a VITSSunaccompanied by any other evi-
Such an assumption defies the realities of
denceSSprovides enough information such that
the haggling that ensues in the American mar-
a party may sustain a price-fixing suit on behalf
ket when one buys a vehicle. Although some
of the entire class.
purchasers certainly negotiate a price that ex-
cludes taxes, titles, and fees, others negotiate
C.
with an eye to the "bottom line."23 Bottom-
By including in the plaintiff class every
line purchasers base their negotiations on the
purchaser who paid a VIT, plaintiffs grouped
final purchase price, including every tax, fee,
consumers with divergent negotiating histories
and surcharge.
and removed the predominant factors needed
to support this particular horizontal price-
If a bottom-line purchaser negotiates for a
fixing claim. By incorrectly applying the parol
certain priceSSsay, $400 a monthSShe does
evidence rule, the district court ignored evi-
not pay more because of the presence of the
dence that might have helped narrow the class
VIT. Even if the dealer does not reduce or
or even strengthen its own decision to certify.
eliminate the VIT,24 it reduces the pre-VIT
Consequently, the proposed class fails the pre-
cash price to drop the final price to the agreed-
dominance requirement of rule 23(b)(3).
upon amountSSin this example, $400 a
month.25
The plaintiff class possesses essentially four
traits. The buyer must have (1) purchased the
vehicle in Texas (2) from a member of the
22 For example, consider a consumer who
TADA (3) on or after January 1, 1994, and (4)
agreed on a final price of $9,500 and who, as part
must have paid a VIT or "similarly identified
of that price, paid a VIT of $30. Under plaintiffs'
`fee or charge' as an addition to the sales price
theory, if the dealership had not itemized the VIT,
or cash price of the vehicle[.]" The key
the consumer would have paid only $9,470.
component of the underlying suit rests with the
fourth element. Plaintiffs repeatedly focus on
23 The recordSSspecifically, the testimony and
the sales contract to make the point that "[t]he
depositions of auto dealersSSsupports defendants'
injury is the [VIT] charge itself . . . . It is
contention that some individuals negotiate in a
undisputed that the VIT charge is a component
bottom-line fashion.
of the `bottom line,' and influences and
24 Defendants introduced evidence that some
impacts what the consumer actually pays at the
dealers did negotiate over the VIT. In any event,
end of every class transaction."
the burden is on plaintiffs to establish the propriety
of the class. O'Sullivan, 319 F.3d at 737-38.
Plaintiffs assume that the VIT represents an
additional charge that artificially increases the
25 Defendants provide a helpful real-life ex-
(continued...)
7

To determine whether a purchaser
contractsSS"namely that [the dealerships] did
negotiated in a top-line or bottom-line fashion,
in fact charge, and each Plaintiff did in fact
a court would have to hear evidence regarding
pay, the VIT."
each purported class member and his
transaction. Such an individual examination
The district court's application of the parol
would destroy any alleged predominance
evidence rule is flawed in at least two respects.
present in the proposed class. The offered
First, the rule does not apply to an antitrust
evidence plainly shows that the class
case in which no one disputes the validity and
members' individual negotiation styles prevent
terms of the contract. "Both the parol
the plaintiffs from arguing that all members of
evidence rule and the doctrine of integration
the class suffered an antitrust injury just by
exist so that parties may rely on the
paying a VIT.
enforcement of agreements that have been re-
duced to writing." Jack H. Brown & Co. v.
D.
Toys "R" Us, Inc., 906 F.2d 169, 176 (5th
The district court resolved the need for in-
Cir. 1990). In the typical case involving the
dividual inquiries by applying the parol
parol evidence rule, one party might try to
evidence rule inappropriately. Under that rule,
introduce evidence to challenge the validity of
terms in "a writing intended by the parties as a
a contract or the contract's terms.26
final expression of their agreement . . . may be
not contradicted by evidence of any prior
Here, however, neither side disputes the
agreement or of a contemporaneous oral
terms of the contracts, and neither argues
agreement but may be explained or
against the validity of the contracts. If a con-
supplemented . . . ." TEX. BUS. & COM. CODE
tract lists a VIT at $42, defendants concede
ANN. � 2.202 (Vernon 1994).
that the buyer owes a $42 VIT payment as
part of the final purchase price. Rather,
The district court considered any evidence
defendants challenge the assumption that the
regarding the parties' negotiations to be viola-
parties negotiated every contract in the same
tive of the parol evidence rule and excluded it.
top-down manner. Such a determination has
By so reasoning, the district court focused ex-
a direct impact on whether the VIT increased
clusively on the express terms of the
the total amount paid and on whether the class
members may have suffered an alleged price
fixing injury.
25(...continued)
ample of a bottom-line negotiation. After running
Secondly, even if the parol evidence rule
through a number of calculations, a purchaser end-
were to apply, the evidence defendants wish to
ed up with a round number: $10,150.00. To get to
that number, he had to begin with a rather irregular
"cash" price of $9408.65. Defendants argue that
"what plaintiffs want this Court to accept as an
26 The few antitrust cases that have even men-
irrefutable fact is that [the aforementioned
tioned the parol evidence rule have done so in the
purchaser] negotiated with his dealer until they
context of interpreting a settlement agreement aris-
agreed upon a price to the penny: $9408.65. That
ing out of an antitrust suit. See, e.g., Ingram
particular negotiation then, after adding tax and
Corp. v. J. Ray McDermott & Co., 698 F.2d 1295,
fees, just so happened to add up to the very round
1321 (5th Cir. 1983) (applying the Louisiana parol
number of $10,150.00."
evidence rule).
8

offer does not contradict the terms of the re-
method for adjudicating this controversy" and
spective contracts; as we have said, defendants
by not conducting any kind of analysis or
assume the validity of the contracts' terms.
discussion regarding how it would administer
The proffered evidence, instead, addresses the
the trial. Although rule 23(b)(3) lists four
negotiations leading up to the terms' inclusion.
factors28 to consider as part of the superiority
The evidence will "explain . . . or
inquiry, and though more than one factor
supplement[]" the terms, TEX. BUS. & COM.
might have some relevance, the fourth
CODE ANN. � 2.202, so that a fact-finder might
considerationSS"the difficulties likely to be en-
understand whether the VIT caused an
countered in the management of a class ac-
antitrust injury.27
tion"SSaddresses the most troublesome aspect
of this certification.
By applying the parol evidence rule, the dis-
trict court made an incorrect assumption re-
In considering the superiority requirement,
garding the primary issue of the predominance
a district court must possess "an understanding
inquiry. Instead of worrying about the
of the relevant claims, defenses, facts, and
presence of the VIT or the purported validity
substantive law presented in the case." Alli-
of the contracts, the court should have
son, 151 F.3d at 419. A court must consider
considered whether the VIT payments always
"how a trial on the alleged causes of action
would represent an antitrust injury.
would be tried." Castano, 84 F.3d at 752.
E.
The district court failed to indicate how it
Thus, the district court abused its discretion
would manage the gigantic plaintiff class and
by holding that plaintiffs offered a class in
the large number of defendants. Despite ad-
which common issues predominate. The court
mitting that it had "some concerns over the
erred by finding that the mere payment of a
manageability of a suit against over a thousand
VIT created an antitrust injury and in applying
defendants," the court decided that the
the parol evidence rule to exclude evidence re-
conditional nature of the certification entitles
garding the negotiating styles of the individual
it to revoke certification if problems arise with
purchasers.
the class as defined. Of course, even with re-
IV.
The district court abused its discretion by
28 The four factors are as follows:
finding that "this class action is the superior
(A) the interest of members of the class in in-
dividually controlling the prosecution or defense
of separate actions; (B) the extent and nature of
27 Furthermore, even if the district court cor-
any litigation concerning the controversy
rectly excluded the detailed evidence regarding the
already commenced by or against members of
negotiation, plaintiffs could not possibly meet their
the class; (C) the desirability or undesirability
burden of showing antitrust injury, because, by ex-
of concentrating the litigation of the claims in
cluding all evidence beyond the language of the
the particular forum; (D) the difficulties likely
contract, the district court prevented the parties
to be encountered in the management of a class
from offering evidence of the baseline price.
action.
Without some sort of baseline or competitive price,
plaintiffs cannot show antitrust injury.
FED. R. CIV. P. 23(b)(3).
9

spect to a conditional certification, the court
have adopted a figure-it-out-as-we-go-along
must meet the requirements of rule 23(b)(3).
approach that Castano criticized and that other
"[I]t does not follow that the rule's
Fifth Circuit cases have not endorsed.29 Thus,
requirements are lessened when the class is
by failing to consider problems concerning the
conditional." Castano, 84 F.3d at 741.
plaintiff class and the significantly large defen-
dant group, the district court erred in its su-
Assuming arguendo that the plaintiff class
periority inquiry.
contains sufficient members with cohesive in-
terests such that the mere payment of a VIT
V.
may constitute horizontal price fixing, the dis-
In summary, the district court erred in its
trict court failed to consider the complications
consideration of both elements of rule 23-
of the plaintiffs' and defendants' presentations
(b)(3). In conducting the predominance
at trial. For example, on the plaintiffs' side,
inquiry, the court misinterpreted the
the court must find jurors who do not belong
requirements for an antitrust injury, ignored
to the significantly large plaintiff class and
the realities of purchasing a vehicle, and
must empanel a jury for a lengthy trial.
improperly applied the parol evidence rule to
exclude evidence regarding the manner in
By not certifying a large defendant class,
which the class members negotiated their sales
the district court also created an unaddressed
contracts. The court also abused its discretion
problem in balancing two competing interests.
by failing to account, in any way, for the
First, as the court acknowledges, "each
obvious complexities that may arise.
Defendant has the absolute right to
individually defend itself by presenting direct
The certification of the plaintiff class is
evidence of noninvolvement in any alleged
REVERSED. We REMAND for further pro-
conspiracy[.]" In opposing the conspiracy
ceedings not inconsistent with this opinion.
charge, each of the several hundred defendants
likely will want to offer a witness or two to
refute any evidence offered in support of the
plaintiffs' position.
Simultaneously, however, the parties have
an interest in ensuring that the jurors will have
a reasonable chance of remembering which
29 For example, Allison distinguished between
party presented which evidence. The sheer
Rule 23(b)(2) class actions and rule 23(b)(3) class
number of individual defendants and the in-
actions by explaining that "proposed (b)(2) classes
centive to offer individual defenses create the
need not withstand a court's independent probe into
possibility of jurors' having to base their de-
the superiority of the class action over other
available methods of adjudication[,] as (b)(3) class-
terminations on evidence offered throughout a
es must." Allison, 151 F.3d at 414. In Mullen v.
long proceeding.
Treasure Chest Casino, LLC, 186 F.3d 620, 627
(5th Cir. 1999), the panel affirmed the certification
In its certification order, the court did not
of a class after describing the trial plan the district
indicate that it has seriously considered the ad-
court had endorsed, finding that the court did not
ministration of the trial. Instead, it appears to
abuse its discretion by adopting a "bifurcated-trial
plan."
10