Robinson, et al v. TX Auto Dealers Assn, et al

United States Court of Appeals
Fifth Circuit
F I L E D
October 5, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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.;

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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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The Texas Automobile Dealers Association
(“TADA”) and some of its members appeal,1
pursuant to FED. R. CIV. P. 23(f), the condi-
tional certification of a plaintiff class of mil-
1 Defendants submitted three briefsSSone from
TADA and two from individual dealers. Because
they contain similar arguments, we refer to them
collectively.

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

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

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

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

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

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

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

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

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