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Civil Litigation No. 14-02-00094-CV, 4/10/2003. Click here for the full text of this decision FACTS: Two pontoon-boat buyers – one from Texas, one from Tennessee – brought suit on behalf of themselves and 74,000 others against the appellant, Tracker Marine L.P., the manufacturer, alleging misrepresentations regarding the plywood used on their boats. The trial court certified their class action in January 2000, without indicating how these claims would be tried. HOLDING: Reversed and remanded. The trial court found that even if the laws of all 50 states apply, certification was appropriate because common issues predominate. The court disagrees. First, no class action is proper unless all litigants are governed by the same legal rules. The Texas Supreme Court in Henry Schein Inc. v. Stromboe,46 Tex. Sup. Ct. J. 103 (Oct. 31, 2002), noted that “[s]tate and federal courts have overwhelmingly rejected class certification when multiple states’ laws must be applied.” Although there is room to argue this was not an absolute prohibition, the Supreme Court’s characterization of the trend as “overwhelming” (not to mention the 68 cases listed in support) clearly suggests which way the tide is running. Second, the amended certification order indicates the 50 consumer protection statutes could be divided into approximately six subgroups. But the plan does not indicate what those groups were; at oral argument, neither counsel had any idea either. Certification cannot be based on mere assurances or secret trial plans. Third, the states are of too many minds as to scienter and reliance. The statutes addressing scienter (the manufacturer’s state of mind) punish conduct ranging from intentional to knowing to negligent. As the class includes boats sold over a 12-year period with three different deck types and many different brochures, a jury would have to make individual findings regarding Tracker Marine’s state of mind for every possible combination of model, brochure and year. Moreover, a number of state’s require proof of reliance (the consumer’s state of mind), a highly individual issue uniquely unsuited for class treatment. Fourth, although consumer protection suits are common, the application asserted here is novel. The artful primary claim by the class is that Tracker Marine’s brochures were deceptive because of what they failed to disclose: that the boats were “unsuited for use in a maritime environment.” In other words, Tracker Marine’s brochures should have said “these boats are no good in water.” Pleading the claim this way eliminates most fact questions on reliance – surely every buyer relied on the omission, as no one would buy with that knowledge. But the parties’ filings do not address which states would impose a duty to make so unique a disclosure. Moreover, claims that a product is unfit for its intended use are already addressed by contract, warranty, and product-liability law; it is unclear whether most states would allow every unfitness claim to be converted into consumer fraud. Without answers to these questions, the court cannot know whether common issues will predominate. Finally, even if all 50 statutes could be sorted into general categories, it is unlikely a single judge could properly try them or a single jury properly apply them. The Texas statute consists of 27 sections, and there are hundreds of cases in which lawyers and judges have grappled with its construction and application. Undoubtedly lawyers and judges from Nebraska to Alaska have similar problems with their own statutes. The class counsel and trial judge in this case are as experienced as any (and more than most), but it is unlikely any lawyer or judge could grasp the shades and nuances of so many laws, thus providing a “fair and efficient adjudication” as required for common issues class actions. Furthermore, there are several reasons why the trial court’s certification order must be reversed even if the law of only one state applied, including that the trial court’s order certifies several competing theories of damages that raise many individual questions. OPINION: Brister, C.J.; Brister, C.J., Hudson and Fowler, JJ.

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