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Case: 15-10242

Document: 00513165491

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Date Filed: 08/21/2015

No. 15-10242

IN THE UNITED STATES COURT OF APPEALS


FOR THE FIFTH CIRCUIT

BRUCE IBE; DEAN HOFFMAN; ROBERT FORTUNE; JASON MCLEAR


Plaintiffs - Appellants
v.
JERRAL WAYNE JONES, also known as Jerry Jones; BLUE & SILVER,
INCORPORATED; DALLAS COWBOYS FOOTBALL CLUB, LIMITED; JWJ
CORPORATION; COWBOYS STADIUM, L.P.; COWBOYS STADIUM GP,
L.L.C.; NATIONAL FOOTBALL LEAGUE,
Defendants - Appellees
--------------------------------------KEN LAFFIN, Individually and On Behalf Of All Others Similarly Situated;
DAVID WANTA, Individually and On Behalf Of All Others Similarly Situated;
REBECCA BURGWIN, Individually and On Behalf Of All Others Similarly
Situated,
Plaintiffs - Appellants
v.
NATIONAL FOOTBALL LEAGUE; COWBOYS STADIUM GP, L.L.C.;
COWBOYS STADIUM, L.P.; DALLAS COWBOYS FOOTBALL CLUB,
LIMITED; JWJ CORPORATION
Defendants Appellees

ON APPEAL FROM A DECISION OF THE UNITED STATES DISTRICT


COURT FOR THE NORTHERN DISTRICT OF TEXAS, CASE NOS. 3:11-CV248 & 3:11-CV-345, THE HONORABLE BARBARA M. G. LYNN

APPELLANTS OPENING BRIEF

Christopher S. Ayres
Texas Bar No. 24036167
R. Jack Ayres
Texas Bar No. 01473000
Ayres Law Office, P.C.

Michael J. Avenatti
California Bar No. 206929
Ahmed Ibrahim
California Bar No. 238739
Eagan Avenatti, LLP

Case: 15-10242

Document: 00513165491

4350 Beltway Drive


Addison, Texas 75001
E-Mail: csayres@ayreslawoffice.com
Telephone: 972-991-2222
Facsimile: 972-386-0091

Page: 2

Date Filed: 08/21/2015

520 Newport Center Drive, Suite 1400


Newport Beach, CA 92660
E-Mail: mavenatti@eaganavenatti.com
aibrahim@eaganavenatti.com
Telephone: (949) 706-7000
Facsimile: (949) 706-7050

Attorneys for Plaintiffs-Appellants


Attorneys for Plaintiffs-Appellants

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CERTIFICATE OF INTERESTED PERSONS


A.

Parties

Plaintiff-Appellants:

Bruce Ibe
Robert Fortune
Dean Hoffman
Ken Laffin
David Wanta
Rebecca Burgwin
Jason McLear
Constance Young (dismissed)
Steve Simms (dismissed)
Mike Dolabi (dismissed)
Wes Lewis (dismissed)

Defendant-Appellees:

National Football League (NFL)


Jerral Jerry Wayne Jones
(dismissed)
JWJ Corporation (dismissed)
Cowboys Stadium, L.P. (dismissed)
Cowboys Stadium GP, LLC
(dismissed)
Blue & Silver, Inc. (dismissed)

B.

Attorneys

For Plaintiff-Appellants:

Michael J. Avenatti, Esq.


Ahmed Ibrahim, Esq.
Andrew Stolper, Esq.
EAGAN AVENATTI LLP
520 Newport Center Dr
Suite 1400
Newport Beach, CA 92660
Telephone: 949/706-7000
Facsimile: 949/706-7050
Email:
mavenatti@eaganavenatti.com
aibrahim@eaganavenatti.com
astolper@eaganavenatti.com
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R Jack Ayres , Jr
Christopher S Ayres
Ayres Law Office PC
4350 Beltway Dr
Addison, TX 75001
Telephone: 972/991-2222
Facsimile: 972/386-0091 FAX
Email:
rjayres@ayreslawoffice.com
csayres@ayreslawoffice.com
For Defendant-Appellee NFL:

George W Bramblett , Jr
Daniel H Gold
R Thaddeus Behrens
Jonathan D Pressment
Haynes & Boone LLP
2323 Victory Ave
Suite 700
Dallas, TX 75219
214/651-5000
Email:
george.bramblett@haynesboone.com
daniel.gold@haynesboone.com
thad.behrens@haynesboone.com
jonathan.pressment@haynesboone.com

For Dismissed Def.-Appellees:

Levi G McCathern , II
Farbod Farnia
Hossain Arnold Shokouhi
Jesse David Hoffman
Paul A Grinke
McCathern Mooty LLP
3710 Rawlins
Suite 1600
Dallas, TX 75219
Telephone: 214/741-2662
Facsimile: 214/741-4717
Email:
lmccathern@mccathernlaw.com
ffarnia@mccathernlaw.com
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arnolds@mm-llp.com
jhoffman@mccathernlaw.com
pgrinke@mccathernlaw.com
David W Dodge
Glast, Phillips & Murray, P.C.
14801 Quorum Drive
Suite 500
Dallas, TX 75254
Tel.: 972/419-8300
Fax: 972/419-8329
Email: DDodge@GPM-law.com

By:

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/s/ Michael J. Avenatti


Michael J Avenatti

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STATEMENT REGARDING ORAL ARGUMENT


Pursuant to Federal Rules of Appellate Procedure Rule 34 and 5th
Circuit Rule 28, Appellants request oral argument. Plaintiffs believe oral
argument is warranted because of the benefit it will provide to the Panel in
being able to obtain answers to questions related to this appeal.

Oral

argument will be of particular benefit because this appeal involves multiple,


fact-intensive issues. Plaintiffs further believe oral argument is warranted
because several of the motions from the proceeding below that are at issue in
this appeal were decided without oral argument.

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TABLE OF CONTENTS
I.

INTRODUCTION ................................................................................ 1

II.

STATEMENT OF JURISDICTION .................................................... 2

III.

STATEMENT OF LEGAL ISSUES .................................................... 2

IV.

SUMMARY OF ARGUMENT............................................................ 4

V.

STATEMENT OF FACTS ................................................................... 7


A.

The Temporary Seating Project. ......................................................... 7

B.

The Video Board. ................................................................................. 14

C.

Super Bowl XLV Tickets................................................................... 17

D.

Plaintiffs Operative Complaint. ...................................................... 17

E.

Defendants Motions to Dismiss. ..................................................... 18

F.

The Motion for Class Certification.................................................. 18

G.

Motion for Summary Judgment. ...................................................... 20

H.

Trial. ........................................................................................................ 20

VI.

ARGUMENT ................................................................................ 21
A.

The District Court's Denial of Class Certification Was an Abuse


of Discretion ............................................................................. 21
1.

Standard of Review ........................................................ 21

2.

The District Court's Denial of Class Certification of the


Displaced Class Was an Abuse of Discretion ............... 21
(a)

Plaintiffs Satisfied the Numerosity Requirement


And Joinder Was Impracticable .......................... 22

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(b)

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Individual Issues on Damages Does Not Preclude


Class Certification .................................................... 23

3.

The District Court's Denial of Class Certification of the


Relocated Class Was an Abuse of Discretion..................... 25
(a)

The District Court's Conclusion that Individual Issues


on Liability Predominated Over Common Issues .... 26

(b)

Individual Issues on Damages Does Not Preclude


Class Certification .................................................... 26

4.

The District Court's Denial of Class Certification of the


Obstructed View Class Was an Abuse of Discretion ......... 27
(a)

The District Court Erred in Holding Individual Issues


Predominated on the Obstructed View Class' Breach
of Contract Claim ..................................................... 28

(b)

The District Court Erred In Holding Individual Issues


Predominated on the Obstructed View Class'
Fraudulent Inducement Claim .................................. 29

B.

The District Court's Order Granting Summary Judgment Was In


Error ........................................................................................ 31
1.

Standard of Review ........................................................ 31

2.

Summary Judgment Was Improper On The Breach of


Contract Claim Based On the NFL Failing to Provide
Unobstructed Views of the Video Board ....................... 32

3.

The District Court Erred In Granting Summary Judgment


On Fraud Claims For Failure to Disclose Obstructed
Views of the Video Board ............................................. 35

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C.

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The District Court's Charge to the Jury on Plaintiffs Fortune and


Hoffman's Fraudulent Inducement Claim was Error ............... 37
1.

Standard of Review ........................................................ 37

2.

The District Court Should Have Instructed the Jury on


Fraud Based on Non-Disclosure .................................... 38

3.
D.

The Decision Striking Punitive Damages Was Error .... 40

The District Court's Dismissal of Plaintiffs' Fraud and DTPA


Claims at the Pleading Stage Was Error .................................. 40
1.

Standard of Review ........................................................ 21

2.

The District Court's Dismissal of the Cowboys


Defendants Was Error .................................................... 40
(a)

Plaintiffs Sufficiently Alleged That the Cowboys


Defendants Were Parties to the Ticket Contract . 40

(b)

Plaintiffs May Maintain Tort Claims Against the


Cowboys Defendants Related to the Ticket Sales42

3.

The District Court Erred In Granting The NFL's 12(b)(6)


Motion Dismissing the Fraudulent Inducement Claims of
the Displaced and Relocated Plaintiffs .......................... 43

4.

The District Court's Conclusion that the Economic Loss


Rule Barred All of Plaintiffs' Fraudulent Concealment
and Negligent Misrepresentation Claims Was Error ..... 45

5.

The District Court's Dismissal of Plaintiffs' DTPA Claims


Based on Fraud Was Error ............................................. 47

VII.

CONCLUSION ............................................................................. 47

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TABLE OF AUTHORITIES
CASES
Affiliated Ute Citizens v. United States,
406 U.S. 128 (1972) ............................................................................. 29, 30
Amchem Products, Inc. v. Windsor,
521 U.S. 591 (1997) ................................................................................... 25
Amigo Broad., LP v. Spanish Broad. Sys., Inc.,
521 F.3d 472 (5th Cir. 2008) ...................................................................... 33
Anderson, Greenwood & Co. v. Martin,
44 S.W.3d 200 (Tex. App. 2001) ......................................................... 39, 44
Bell Atlantic Corp. v. AT&T Corp.,
339 F.3d 294 (5th Cir. 2003) ...................................................................... 23
Bender v. Brumley,
1 F.3d 271 (5th Cir. 1993) .......................................................................... 37
Butler v. Sears, Roebuck & Co.,
727 F.3d 796 (7th Cir. 2013) ...................................................................... 25
Cardinal Health Solutions, Inc. v. Valley Baptist Med. Ctr.,
2009 WL 150942 (S.D. Tex. Jan. 21, 2009) .............................................. 45
Chesapeake Operating, Inc. v. Whitehead,
2011 WL 4372486 (S.D. Tex. Sept. 19, 2011)........................................... 40
Citizens Natl Bank v. Allen Rae Investments, Inc.,
142 S.W.3d 459 (Tex. 2004) ................................................................ 30, 44
Coffell v. Stryker Corp.,
284 F.3d 625 (5th Cir. 2002) ...................................................................... 44
Consol. Rail Corp. v. Town of Hyde Park,
47 F.3d 473 (2d Cir. 1995) ......................................................................... 22
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Custom Leasing, Inc. v. Texas Bank & Trust Co.,


516 S.W.2d 138 (Tex. 1974) ...................................................................... 43
Dell Computer Corp. v. Rodriguez,
390 F.3d 377 (5th Cir. 2004) .......................................................... 32, 33, 34
Eastman Chemical Co. v. Niro, Inc.,
80 F.Supp.2d 712 (S.D. Tex. 2000)............................................................ 46
Esmark Apparel Co. v. James,
10 F.3d 1156 (5th Cir. 1994) ...................................................................... 21
Experian Info. Solutions, Inc. v. Lexington Allen L.P.,
2011 WL 1627115 (E.D. Tex. Apr. 7, 2011) ....................................... 39, 46
First Natl Bank of Wichita Falls v. Fite,
131 Tex. 523 (1938) ................................................................................... 41
Formosa Plastics Corp., USA v. Presidio Enggs & Contr., Inc.,
960 S.W.2d 41 (Tex. 1998) ........................................................................ 45
Hawkins v. Frick-Reid Supply Corp.,
154 F.2d 88 (5th Cir. 1946) ........................................................................ 40
Hewlett-Packard v. Benchmark,
142 S.W.3d 554 (Tex. App. 2004) ............................................................. 35
In re Deepwater Horizon,
739 F.3d 790 (5th Cir. 2014) .......................................................... 23, 24, 25
In re Great Southern Life Ins. Co. Sales Practices Litig.,
192 F.R.D. 212 (N.D. Tex. 2000)............................................................... 30
In re Rodriguez,
695 F.3d 360 (5th Cir. 2012) ...................................................................... 21
In re Visa Check/MasterMoney Antitrust Litigation,
280 F.3d 124 (2nd Cir. 2001) ............................................................... 23, 24

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Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc.,


962 S.W.2d 507 (Tex. 1998) ...................................................................... 43
Jones v. Diamond,
519 F.2d 1090 (5th Cir. 1975) .................................................................... 22
Jordan v. Concho Theatres,
160 S.W.2d 275 (Tex. Civ. App. 1941) ..................................................... 32
Kajima Intl v. Formosa Plastics Corp.,
15 S.W.3d 289 (Tex. App. 2000) ............................................................... 39
Latch v. Gratty, Inc.,
107 S.W.3d 543 (Tex. 2003) ...................................................................... 41
Le Boeuf v. K-Mart Corp.,
888 F.2d 330 (5th Cir.1989) ....................................................................... 37
Livingston Livestock Exch., Inc. v. Hull State Bank,
14 S.W.3d 849 (Tex. App. 2000) ............................................................... 43
Minter v. Great Am. Ins. Co.,
423 F.3d 460 (5th Cir. 2005) ...................................................................... 31
Mullen v. Treasure Chest Casino, LLC,
186 F.3d 620 (5th Cir. 1999) ...................................................................... 22
Nat'l Ctr. for Policy Analysis v. Fiscal Assocs.,
2002 WL 433038 (N.D. Tex. Mar. 15, 2002) ............................................ 39
Nazareth Intl, Inc. v. J.C. Penney Corp., No.
2005 WL 1704793 (N.D. Tex. July 19, 2005) ........................................... 46
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000) ................................................................................... 31
Regus Management Group, LLC v. International Business Machine Corp.,
2008 WL 1836360 (N.D. Tex. Apr. 24, 2008) ..................................... 39, 46

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Rifkin v. Crow,
574 F.2d 256 (5th Cir. 1978) ...................................................................... 30
Rimade, Ltd. v. Hubbard Enterprises, Inc.,
388 F.3d 138 (5th Cir 2004) ....................................................................... 44
Rio Grande Royalty Co., Inc. v. Energy Transfer Pners, L.P.,
620 F.3d 465 (5th Cir. 2010) .......................................................... 36, 37, 44
Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter,
607 F.3d 1029 (5th Cir. 2010) ........................................................ 36, 37, 38
Spoljaric v. Percival Tours, Inc.,
708 S.W.2d 432 (Tex. 1986........................................................................ 44
Talen's Landing, Inc. v. M/V Venture, II,
656 F.2d 1157 (5th Cir. 1981) .................................................................... 40
Union Pac. Res. Grp., Inc. v. Rhone-Poulenc, Inc.,
247 F.3d 574 (5th Cir. 2001) ...................................................................... 36
Vander Zee v. Reno,
73 F.3d 1365 (5th Cir. 1996) ................................................................ 39, 40
Vega v. TMobile USA, Inc.,
564 F.3d 1256 (11th Cir. 2009) .................................................................. 22
STATUTES
28 U.S.C. 1291 ............................................................................................. 2
RULES
Federal Rules of Appellate Procedure, Rule 29(d) ....................................... 48
Federal Rules of Appellate Procedure, 32(a)(7)(B)...................................... 48
Federal Rules of Civil Procedure, Rule 9(b) ................................................ 44
Fifth Circuit Rule 32 ..................................................................................... 48
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SECONDARY AUTHORITIES
Newberg on Class Actions 3:12 (5th ed. 2012) ..................................... 4, 22
Newberg on Class Actions 4:54 (5th ed. 2012) ......................................... 23

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I.

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INTRODUCTION
This case arises from numerous failures relating to temporary seating at

Super Bowl XLV held at Cowboys Stadium in February 2011. The National
Football League (NFL) and the Dallas Cowboys, intent on breaking the Super
Bowl attendance record, devised a plan to increase stadium capacity by installing
over 13,000 temporary seats for the game. They then failed to properly install all
of the seats on time as promised, causing significant damages to be incurred by
fans who on average spent thousands of dollars for the once-in-a-lifetime,
bucket list experience of attending a Super Bowl involving two of the most
storied franchises in all of professional sports the Pittsburgh Steelers and the
Green Bay Packers.1 Many fans arrived at Cowboys Stadium on the day of the
Super Bowl only to discover that the seats they had purchased for thousands of
dollars did not exist (Displaced fans). Other fans discovered they had been
unilaterally reassigned to different and inferior seats than the ones they purchased
(Relocated fans), while thousands of others discovered they had obstructed views
of the playing field, the area above the field, and the prized center-hung video
replay board at Cowboys Stadium (Obstructed View fans).
After the district court denied a motion for class certification filed by
Plaintiffs, their individual claims were tried to verdict in March 2015. All seven
plaintiffs prevailed on their breach of contract claims against the NFL. This appeal
challenges the district courts rulings: (1) denying class certification; (2) granting
in part the NFL and Cowboys motion to dismiss various claims; (3) granting in
part the NFLs partial summary judgment to dismiss certain Plaintiffs claims
based on obstructed views of the Video Board; and (4) denying Plaintiffs proposed

In the games 45-year history, the Steelers and the Packers had never before
played each other in a Super Bowl. Nor have they played each other since.

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fraudulent non-disclosure instruction to the jury regarding claims based on an


obstructed view.

II.

STATEMENT OF JURISDICTION
Plaintiffs appeal a final judgment from the United States District Court for

the Northern District of Texas, Dallas Division. This Court has jurisdiction
pursuant to 28 U.S.C. 1291.

III.

STATEMENT OF LEGAL ISSUES


Plaintiff-Appellants identify the following issues raised by this appeal.

Issue 1:

Did the district court err in denying class certification of the breach of
contract claim of the Displaced Class on the grounds the class was not so
numerous as to make joinder impracticable and on the grounds that
individual issues of damages predominated?

Issue 2:

Did the district court err in denying class certification of the breach of
contract claim of the Relocated Class on the grounds that the NFLs
contention that some class members did not choose a particular seat at
the time of purchase created individual issues which predominated and
on the grounds that individual issues of damages predominated?

Issue 3:

Did the district court err in denying class certification of the breach of
contract claim of the Obstructed View Class on the grounds that
individual issues of liability and damages predominated?

Issue 4:

Did the district court err in denying class certification of the fraudulent
inducement claim of the Obstructed View Class on the grounds that
individual issues of reliance and damages predominated?

Issue 5:

Did the district court err in granting summary judgment on the breach of
contract and fraudulent inducement claims for obstructed views of the
Video Board based on its ruling that the phrase spectator seat to the
game in the ticket contract unambiguously and as a matter of law

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granted the ticketholder a seat to view only the four corners of a football
field and not the Video Board?
Issue 6:

Did the district court err by refusing the Obstructed View Plaintiffs
request for a fraudulent non-disclosure jury instruction on their claim
alleging the NFL failed to disclose material information that would have
rendered earlier representations untrue or misleading, or which conveyed
a false impression?

Issue 7:

Did the district court err by dismissing all of Plaintiffs claims against
the Dallas Cowboys-related defendants where the complaint alleged the
Cowboys were a contracting party by virtue of their sale of tickets and
the evidence demonstrated they were agents of the NFL by binding
themselves contractually with the NFL to deliver the completed seats to
Plaintiffs?

Issue 8:

Did the district court err by granting Defendants motion to dismiss for
the Displaced and Relocated Plaintiffs failure to state a claim for
fraudulent inducement, along with the connected claims for violations of
the Texas Deceptive Trade Practices Act (DTPA), on the grounds that
(a) Plaintiffs were required to allege a specific intent not to perform the
ticket contracts (as opposed to alleging the lower recklessness standard),
(b) Plaintiffs were required to allege that the tickets were sold to
Plaintiffs after Defendants knew they would not be completed, and (c)
Plaintiffs allegation of a specific intent to defraud was implausible?

Issue 9:

Did the district court err by granting Defendants motion to dismiss due
to all Plaintiffs failure to state a claim for fraudulent concealment,
negligent misrepresentation, and connected claims for violation of the
DTPA, on the ground that they are barred by the economic loss rule?

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SUMMARY OF ARGUMENT
This case is a highly complex dispute involving numerous parties (and

thousands of putative class action members) from across the United States who
attended Super Bowl XLV at Cowboys Stadium. Appellants present numerous
issues on appeal and reversal on any or all of these matters materially affects the
outcome of these and hundreds of pending claims. Plaintiffs arguments may be
summarized as follows:
First, the district court erred in denying class certification of the Displaced
Class (ticketholders who purchased a seat but were denied a seat when they arrived
on game day) on the grounds that the class was so numerous as to make joinder
impracticable and that individual issues of damages predominated. Here, the class
was at least 40 persons and because a class of 40 or more members raises a
presumption of impracticability of joinder based on numbers alone, Plaintiffs
satisfied the numerosity requirement. See William B. Rubenstein, Newberg on
Class Actions 3:12 & n.9 (5th ed. 2012).

Additionally, because each class

member suffered damage as a result of Defendants conduct, differences in the


amount of their damages does not preclude class certification.
Second, the district court erred in denying class certification of the Relocated
Class (ticketholders who purchased a seat but were relocated to a different and
inferior seat when they arrived on game day). Whether each class member picked
a particular seat or purchased a ticket without knowing their exact location in the
stadium did not create an individual issue, and certainly not one that predominated
over the other common issues identified by the district court. That class members
suffered different amounts of damages likewise did not defeat class certification.
Further, the district court was wrong in concluding that individual issues
predominated as a result of each class member needing to show his or her seat was
of lesser quality.

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Third, the district court erred in denying class certification of the Obstructed
View Class (ticketholders whose ticket did not disclose any obstructed view but
whose seat had an obstructed view of the playing field or Video Board) on their
breach of contract claim. The district courts conclusion that an individualized
inquiry to determine the extent of obstruction for every class member was required
was wrong because common evidence showed that any obstructed view of the field
or Video Board was material. Indeed, the evidence showed that whether a persons
view was 10 percent, 50 percent, or 99 percent obstructed, the NFL generally
treated all such seats as simply obstructed and reduced the face value of all of the
tickets they marked as Restricted View across-the-board to $600.2 Beyond that,
methods were available to ascertain the extent of the obstructions using common
evidence. Further, that class members suffered differing amounts of damages did
not defeat class certification.
Fourth, the district court erred in denying class certification of the
Obstructed View Class on their fraudulent inducement claim. The district courts
ruling that individual issues of reliance predominated over common issues was
error because the law recognizes a presumption of reliance in class cases asserting
fraud based on a material omission (as in this case). In addition, the courts
conclusion that individual issues on damages precluded class certification was
error.
Fifth, the district court erroneously granted the NFLs summary judgment
motion on Plaintiffs breach of contract and fraud claims relating to obstructed
views of the Video Board. The district court entered its order based on its incorrect
determination that the phrase in the ticket contract granting the ticket holder entry

This case involves seats that the NFL failed to mark and failed to reduce in price.

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in the stadium and a spectator seat for the game is unambiguous and does not
grant a right to see the Video Board.
Sixth, the district courts refusal to instruct the jury on fraudulent nondisclosure in connection with Plaintiffs claims for being sold seats with obstructed
views of the playing field was erroneous. The evidence presented at trial supported
an instruction on fraudulent non-disclosure based on the NFLs failure to disclose
material facts that rendered earlier representations misleading or untrue, and/or
conveyed a false impression. Moreover, the fact that the NFL acquired the material
information after it distributed tickets does not relieve it of liability.
Seventh, the district courts dismissal of Plaintiffs contract and fraudulent
inducement claims against the Cowboys Defendants at the pleading stage was
erroneous because Plaintiffs sufficiently alleged that one or more of the Cowboys
Defendants were parties to the ticket contracts, or at a minimum, were agents of the
NFL who had a contractual obligation to install the seats.
Eighth, the district court improperly dismissed the Displaced and Relocated
Plaintiffs fraudulent inducement claims, along with connected claims for
violations of the Texas Deceptive Trade Practices Act (DTPA) at the pleading
stage. The courts holding that Plaintiffs had not plausibly alleged fraudulent intent
was improper because (a) Plaintiffs were not required to allege Defendants
specific intent not to perform the ticket contracts and instead their allegations
merely had to meet the lower standard of recklessness, (b) Plaintiffs allegation of
the NFLs specific intent to defraud based on the desire to break the Super Bowl
attendance record, avoid an embarrassing public relations mess, and maximize
revenues, was not implausible, and (c) Plaintiffs were not required to allege
fraudulent intent with specificity. Further, the courts ruling that Plaintiffs had to
allege the tickets were sold to Plaintiffs after Defendants knew they would not be
completed was erroneous because fraud may be based on misrepresentations and

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omissions occurring after the execution of a contract, including information the


seller learns after the contract is entered into.
Ninth, the district courts conclusion that the economic loss rule barred all of
Plaintiffs fraudulent concealment and negligent misrepresentation claims, along
with connected DTPA claims, was erroneous because (a) these claims were
fraudulent inducement claims not subject to the economic loss rule, (b)
concealment based tort claims are premised on duties separate and independent
from any duties created by contract, and (c) fraud and negligent misrepresentation
claims based on concealment or omission of material facts are not subject to the
economic loss rule.

V.

STATEMENT OF FACTS
A.

The Temporary Seating Project.

The Super Bowl is an event put on by the NFL. [ROA.10847] In 2007, the
NFL awarded the right to host Super Bowl XLV to the North Texas Super Bowl
XLV Bidding Committee, which had proposed the game be played at Cowboys
Stadium in Arlington, Texas. [ROA.10847] As part of the bid process, the NFL
consented to the addition of nearly 13,000 temporary seats at Cowboys Stadium.
[ROA.16359:12-17] The Dallas Cowboys organization was charged with the
responsibility for installing the temporary seats and entered into an agreement with
the NFL requiring the Cowboys to install the seats by January 30, 2011 (no later
than one week before game day on February 6, 2011). [ROA.15755:10-15756:2]
In order to complete this task, the Cowboys hired Scott Suprina of Seating
Solutions. [ROA.15802:3-10] The NFL hired Todd Barnes of Populous as its lead
event-planning

consultant

ROA15816:22-15817:7]

for

Super

Bowl

XLV.

[ROA.15813:14-20;

The NFL also assigned Frank Supovitz, Senior Vice

President of Events for the NFL, with responsibility for overseeing all aspects of

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the Super Bowl, including the installation of temporary seats. [ROA.15645:7-11;


ROA.15647:12-15]
Months before the game, in approximately September 2010, the NFL and
Populous learned of issues related to Seating Solutions ability to install all of the
temporary seats. More specifically, none of the temporary seats had been erected
and internal discussions at the NFL and with the Cowboys reflected the NFLs
belief that Seating Solutions/Suprina could not be trusted and could not
competently install the required seats.

[Trial Ex. 60; ROA.16053:17-22;

ROA.17139:6-24; ROA.17143:4-10] Around this time, Populous discovered that


according to seating plans prepared by Suprina, numerous seats would have
obstructed views. This alone impacted over 1,400 temporary seats. On September
27, NFL Director of Ticketing Fred Otto wrote to Barnes and Supovitz after
becoming aware of the problem with substandard seats, stating: Scott [Suprina]
said I would never install a seat I would not sit in myself and that he was not
forthright at all. On this date at the latest, Supovitz and the NFL knew that neither
Barnes nor Otto trusted Seating Solutions and. [ROA.17143:4-10]
Super Bowl XLV tickets were sent to the NFLs printer to be printed on or
about October 29, 2010. [ROA.9660-9661; ROA.9031; ROA.9239] There, certain
tickets marked with the legend Restricted View were printed to designate
obstructed view seats and thus alert certain purchasers.

[ROA.9660-9661;

ROA.9239] Other than those tickets printed with the Restricted View legend on
October 29, however, no other tickets were later marked Restricted View even
though, as discussed below, the NFL subsequently discovered there would be many
additional obstructed view seats. [ROA.9646:23-9647:17]
Under the terms of the agreement negotiated with the Cowboys organization,
the NFL did not have control of Cowboys Stadium in order to begin installation of
seats until January 8, 2011. [ROA.15904:11-15]

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Beginning around January 9, 2011, the NFL and Populous were very
concerned about obstructed views of the playing field from the temporary seats in
rows 4 and above in the Curves sections, which are among the sections where
Plaintiffs Fortune and Hoffman sat.

[ROA.7468 at 9; ROA.9844-9845;

ROA.9847-9848; ROA.9851-9852; ROA.9855-9856; ROA.9632; ROA.9946-9947;


ROA.9978; ROA.10268; ROA.15867:16-15869:7]
In internal e-mails, the NFL and Populous conceded there will be
complaints about the seats, they wouldnt be worthy of selling, they look
awful, they are really bad, and the seats are a mess. [Trial Exs. 69, 68, 179,
256; ROA.17170:19-17172:10; ROA.17167:7-14; ROA.16529:5-16] By late
January 2011, Barnes came to the conclusion that Seating Solutions plans could
not be relied upon, because the surveys were not performed very well. [Trial Ex.
275; ROA.16063:5-16064:21; ROA.17230]
On January 26, 2011, Barnes sent an e-mail to Fred Otto attaching drawings
containing Barnes notes documenting seating concerns at the west end.
[ROA.17091:19-17092:7; Trial Ex. 552] In these notes, Barnes communicated his
concerns about poor sightlines to the playing field in various sections.
[ROA.17093:4-19; ROA.17092:8-16; Trial Ex. 552] Among the problems Barnes
identified were poor sightlines due to ADA column in Rows 1 - 3 in section
218A. [ROA.17093:12-14; Trial Ex. 552] As noted below, Plaintiff Hoffman sat
in section 218A, Row 23 (which is the same as Row 3). [ROA 17092:23-17093:3;
Trial Ex. 552]
On January 27, 2011, Barnes sent an e-mail to Otto attaching drawings
containing Barnes remaining seat plan notes that covers the east end.
[ROA.17085:4-11; Trial Ex. 554] Again, Barnes communicated to Otto his
concerns about poor sightlines in various sections. [ROA.17087:15-17089:5; Trial
Ex. 554] Among the problems Barnes identified was a concern about Row 4 of

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section 241A having a sightline obstructed due to column. [ROA.17090:2417091:4; Trial Ex. 554] As noted below, Plaintiff Fortune sat in section 241A,
Row 23 (which is the same as Row 3), Seat 1, and his sightline was also obstructed
by a concrete support beam. [ROA.16441:23-16442:16; 16153:4-6]
In addition, one of the NFLs temporary employees hired to raise sightline
issues in the week leading up to the Super Bowl and bring them to the attention of
Populous, made important handwritten notes about Fortunes seats in connection
with his review of the seats prior to the Super Bowl. [ROA.16555:19-16556:5;
ROA.16582:16-16583:14; Trial Ex. 182]

He wrote that at least one of Mr.

Fortunes seats was OBST and also wrote AWFUL! in the margin of the page
next to a listing of seats in Fortunes section. [ROA.16582:16-16583:14] Otto
confirmed that OBST was the nomenclature he would use to identify a potential
sightline issue. [ROA.16571:21-16572:5; Trial Ex. 182]
As noted above, the NFLs contract with the Cowboys required the seats to
be completed by January 30, 2011 and yet they were not complete on that date.
[ROA.15755:20-15756:2; ROA.15867:3-8; ROA.16065:1-4; Trial Ex. 119]
Despite this fact, the NFL took no efforts to inform any of the fans.
[ROA.15867:1-12; ROA.15868:4-11; ROA.16060:14-16061:11]
In the week leading up to the Super Bowl, the NFL continued to be highly
concerned about the completion of the seats in time for the game and yet failed to
tell the fans anything. [Trial Exs. 150, 166, 267, 280, 284; ROA.16056:23-16058:5;
ROA.16059.23-16061:24;

ROA.15975:13-21;

ROA.15993:2-15994:8;

ROA.

16080:7-17; ROA.16644:3-15; ROA.16645:21-16646:9] The NFL, Populous, and


the Cowboys continued to exchange e-mails expressing their concerns.

On

February 1, 2011, with knowledge of the impending chaos that was to ensue on the
day of the game, the NFL ordered additional security to deal with fans on game day
who the NFL knew would be irate over the seating issues. [ROA.15913:9-18;

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ROA.15974:18-23] Despite these known problems, the NFL made no attempt to


inform the fans of anything relating to the seat problems. [ROA.16375:8-10;
ROA.16060:17-16061:11; ROA.16228:20-16229:7; ROA.16640:5-20]

At trial,

Plaintiffs presented evidence showing the NFL chose not to disclose the problems
with the temporary seating project for a number of reasons. [ROA.15909:2015911:25]
First, the NFL chose to install the temporary seats, and install and leave all
of the obstructed view seats in the stadium, in an attempt to assist one of the most
powerful owners in the NFL, Jerry Jones, in achieving his goal of breaking the alltime Super Bowl attendance record.

Plaintiffs presented extensive evidence,

including internal e-mails and admissions from the testimony of Jones, Roger
Goodell (the NFL Commissioner), Supovitz and others, demonstrating an
obsession with breaking the attendance record even while the NFL was in the midst
of dealing with what should have been the bigger problem of getting the seats
properly

installed.

[Trial

ROA.15625:16-15653:20;

Exs.

52,

73,

159,

311;

ROA.15679:20-15681:3;

ROA.17380:10-24;
ROA.15853:1-24;

ROA.15936:5-10; ROA.15937:6-18; ROA.16295:17-24; ROA.16297:1-16928:24;


ROA.17324:13-19; ROA.17325:12-21]
Second, the NFL sought to avoid the public relations debacle that would
ensue if it had to disclose before the game that the seats would not be ready or that
certain seats had obstructed views. [Trial Exs. 172, 284, 293; ROA.15978:415982:15; ROA.16084:4-16085:10; ROA.16227:6-16229:13; ROA.16231:11-16;
ROA.16232:7-17; ROA.16235:17-16236:10]

Indeed, because tickets had been

printed and distributed, the NFL could not provide proper disclosures on tickets
and thus instead would have to endure the embarrassment of making a public
announcement at a time when the NFL, Jones and the Cowboys wanted all eyes of

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the worldwide media on the Super Bowl and its hype in anticipation of the game.
[ROA.15677:12-15679:10]
Third, the NFL chose not to disclose problems with the seats because of the
loss in revenues the NFL would have to experience from either lowering the face
value of the tickets (which they could not do because the tickets were already
printed and distributed) or from removing the seats from the stadium altogether.
The evidence showed that the NFL was keenly focused at all times on maximizing
revenues and profits at Super Bowl XLV. [Trial Exs. 50, 158; ROA.16305:2316311:10; ROA.17317:12-17318.11] Indeed, at his Commissioners Briefing in
January 2011, Goodell was briefed as to the significant increase in revenue and net
income the NFL was projected to receive over the prior two Super Bowls based on
a huge increase in stadium gate receipts driven by sales of the temporary seats.
On February 6, the day of the Super Bowl arrived. Over 400 seats within
certain areas in sections 425A and 430A were not completed and approved for use
in time for the game. [ROA.15880:17-15881:4] This included seats purchased by
Plaintiffs Bruce Ibe and his daughter (Section 430A, Row 25, Seats 17-18)
[ROA.16152:18-22],

David

Wanta

(Section

425A,

Row

28,

Seat

27)

[ROA.16153:1-3], and Ken Laffin (Section 425A, Row 28, Seat 26).
[ROA.16152:23-25] When they arrived at the game, Ibe, Laffin, Wanta and like
fans were held by the NFL in a fenced-in area in substandard conditions with no
information about why their seats were not ready or available. [ROA.16172:5-24]
Later, they were taken to a partially below-ground bar where they had no view of
the game on the field and were forced to attempt to watch the game on television
monitors. [ROA.16175:25-16176:8; ROA.16990:1-5]
In addition, over 850 other seats were not completed and approved for use in
time for the game.

[ROA.16324:17-25]

These included seats purchased by

Plaintiffs Jason McLear (Section 230A, Row 24, Seats 14-16) [ROA.16153:15-17,

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and Rebecca Burgwin (Section 215A, Row 28). [ROA.16153:21-24] McLear and
his family, along with Burgwin and her husband, were relocated to worse seats.
[ROA.16669:5-10; ROA.16761:1-12] McLear missed most of the first quarter of
the game. [ROA.16668:17-20] Burgwin and her husband were separated from
their daughters. [ROA.16760:22-25]
Plaintiffs Robert Fortune and Dean Hoffman were among thousands of fans
who appeared at their assigned seats only to discover that their seats had obstructed
sightlines. [ROA.16441:23-16442:16; ROA.16593:16-16594:17] Fortune bought
two tickets for he and his wife to attend Super Bowl XLV. [ROA.16153:4-6] His
seats were to be located in Section 241A, Row 23, Seats 1 and 2. [ROA.16153:46] The tickets did not contain a disclosure notifying him that the seats had a
Restricted View. [ROA.16427:12-16; Trial Ex. 25] Yet, Fortune observed from
his and wifes seats that their view of the field and Video Board were obstructed by
the concrete overhang above and by an aluminum railing and concrete support
beam. [ROA.16441:23-16442:16] Fortune obtained photographs and a short video
depicting the obstructed views from his and his wifes seats, which was shown to
the jury at trial. [ROA.16442:20-16445:8; Trial Exs. 26, 376]
Dean Hoffman purchased three tickets for him and his two children to attend
the game. [ROA.16153:7-9] His tickets stated that his seats were to be located in
Section 218A, Row 23, Seats 16-18 and did not contain a disclosure notifying him
that the seats had a Restricted View. [ROA.16153:7-9; Trial Ex. 37] Hoffman,
however, observed from his and his childrens seats that their view of the field and
Video Board were obstructed by the concrete overhang above them.
[ROA.16593:16-16594:17]
Each of the Plaintiffs were fans for whom attending the Super Bowl was
supposed to be a once in a lifetime experience, or bucket list item.

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[ROA.15929:9-11; ROA.16159:5-8; ROA.16336:6-11; ROA.16421:15-16422:21;


ROA.16757:11-14]
B.

The Video Board.

Cowboys Stadium is home to the largest video board installation in the


world.

[ROA.9689]

The stadiums signature video replay and scoreboard

(hereafter, the Video Board) hangs approximately 90 feet above the center of the
field and spans 60 yards. [ROA.9932-9933] The Video Board cost more than $40
million; actually contains four Video Boards - two facing the sidelines and two
smaller ones facing the end zones; and covers a screen area of 11,393 square feet.
[ROA.9932-9933] The NFL and the Cowboys touted and hyped the Video Board
and its importance as being part of the game at nearly every possible opportunity
during the weeks and months leading up to the Super Bowl. [ROA.9932-9933;
ROA.9935; ROA.9937-9944; ROA.10182] Fred Otto admitted the Video Board
was part of the big draw of their stadium. [ROA.9635]
During discovery, the NFL also admitted that nearly all of the temporary
seats installed on the Main Concourse Level did not have an unobstructed view of
the entirety of the video board hanging above the center of Cowboys Stadium while
seated. [ROA.9787-9788 at 13] This admission also necessarily means that fans
would not have views of many punts during the game and also would not be able
to see whether certain field goals and extra points were good or not because the
top of the goal posts were obstructed. On January 10, 2011, Barnes identified 16 of
these sections (all in the Curves) in an e-mail to the NFL. [ROA.9946-9947;
ROA.9858-9859] Barnes stated that any seat above the first row of the temp seats
will have trouble seeing the videoboard. [ROA.9946-9947; ROA.9858-9859]
According to testimony of NFL Commissioner Goodell, an obstructed view
seat is defined by the NFL as follows:

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Generally obstructed view means any seat in the stadium


that doesn't have a full view of the stadium because of a
structural issue. It could be an overhang. There would
be a pole, some kind of structural device in the stadium.
[ROA.9743:5-10 (emphasis added).] Goodell admitted that this has been the
definition of an obstructed view seat from even before Goodell became
Commissioner. [ROA.9743:11-9744.14]
The evidence showed that the NFL had killed other seats solely because of
problems with sightlines to the Video Board.

[ROA.9845; ROA.9847-9850;

ROA.9852-9853; ROA.9957; ROA.9959-9961; ROA.9969-9971]

Suprina, the

temporary seating contractor, removed certain seats because Barnes told him that
Frank Supovitz found seats with obstructions to the Video Board to be
unsatisfactory. [ROA.9968; ROA.9972]
On January 9, Barnes and Otto exchanged e-mails attaching photos from
seats showing no obstructions to the playing field while seated, but depicting
obstructions to the Video Board. [ROA.9850; ROA.9959-9961; ROA.9975-9976;
ROA.9978] Ottos reaction to the photos was: These look awful - once again,
please send me the list of all sections affected[.] [ROA.9851; ROA.9978]
Sightlines to the Video Board from the temporary seats was also a written
requirement of the seating project early on. In March 2010, Jack Hill of the Dallas
Cowboys sent Suprina a Stadium Bid Package (hereafter, the RFP).
[ROA.9966, ROA.9983-9998] Hill was responsible for overseeing the seating
project on behalf of the Cowboys organization. [ROA.9901; ROA.9914-9915]
Significantly, the RFP required bidders to submit preliminary drawings indicating
. . . sight lines for viewing of the center hung video board. [ROA.9917 (emphasis
added); ROA.9987]

Hill testified that this was a requirement of the project.

[ROA.9912-9913; ROA.9916-9918; ROA.9920; ROA.9923, ROA.9966-9967]

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Hill also presented a drawing within the RFP showing temporary seats with a line
drawn to the end zone Video Board, which depicted a sightline and the requirement
that there be sightlines to the Video Board. [ROA.9919; ROA.9994]
In internal communications between the NFL, Cowboys, and Populous, the
parties all routinely discussed seats with obstructions to the Video Board as being
obstructed view seats. For example, on August 28, 2010, Otto, reacting to photos
he received depicting obstructed views of the Video Board stated: I do not see
how their seats would not be obstructed?? [ROA.10012-10013 (emphasis added)]
Barnes responded:

You are correct.

It appears to me that they will be

obstructed. [ROA.10012-10013] At deposition, Otto testified that these seats


were not fine because they did not have a full view of the Video Board.
[ROA.16521:3-18] Importantly, Otto was the final decision-maker on whether
to mark seats obstructed view after gathering input from others. [ROA.16388:1816390:5; ROA.16531.20-16532.1]
On January 10, admitting there were serious problems in selling seats which
will have trouble seeing the videoboard, Barnes stated: [b]y the way, wasnt it
Scott Suprina who said he would never design a seat that wouldnt be worthy of
selling? [ROA.9860; ROA.10057-10058] Barnes admitted this comment was
directed only to seats with trouble seeing the Video Board and conceded it was a
problem for the NFL. [ROA.9841; ROA.9860] Barnes also told the NFL [t]here
will be complaints about seats with obstructed views of the Video Board.
[ROA.9863; ROA.11746-11747] Supovitz also expressed concerns about not being
able to see the Video Board from certain seats. [ROA.9968]
Further, it is undisputed that the NFL attempted to identify temporary seats
with poor sightlines to the Video Board (i.e. it was material). [ROA.9618;
ROA.9630; ROA.9840; ROA.9927-9928; ROA.9964] Barnes testified he
performed a sightline analysis to determine the view from the temporary seats to

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the Video Board and that such an analysis is routine in all Super Bowls.
[ROA.9840-9841] The NFL identified these problem seats in its interrogatory
responses. [ROA.9787-9788 at 13.]
C.

Super Bowl XLV Tickets.

Super Bowl XLV tickets promised purchasers an assigned seat at the game
corresponding to a specific section, row, and seat number.
ROA.9461;

ROA.9476;

ROA.9490-9491;

ROA.9525-9526;

[ROA.9449;
ROA.9561;

ROA.9576] Each ticket provided that [t]his ticket grants entry in the stadium and
a spectator seat for the game. [ROA.9490-9491; ROA.9525-9526]

Further, each

ticket promises that Super Bowl XLV will take place on Sunday, February 6, 2011,
at 5:00 p.m. and that fans will have the ability to enter the stadium when gates open
at 1:00 p.m. [ROA.9490-9491] None of the tickets Plaintiffs purchased contain
any disclosures alerting them to their seats having obstructed views of the playing
field or Video Board.

[ROA.9443; ROA.9449; ROA.9457; ROA.9461;

ROA.9471; ROA.9476; ROA.9486; ROA.9490-9491; ROA.9509; ROA.95259526; ROA.9549; ROA.9561; ROA.9564; ROA.9576]
Frank Supovitz approved the final version of the ticket.

[ROA.9599;

ROA.9613] Supovitz testified that the stadium gates were supposed to open by
1:00 p.m. according to the ticket. [ROA.9600] He also understood this statement
to mean that it was our intention to open the gates [at] 1:00 p.m. [ROA.9614]
D.

Plaintiffs Operative Complaint.

Plaintiffs filed this case as a class action against the National Football
League (NFL), the Dallas Cowboys Football Club, Ltd. (Dallas Cowboys),
JWJ Corporation (JWJ), Cowboys Stadium, L.P. (Cowboys Stadium L.P.),
Cowboys Stadium GP, LLC (Cowboys Stadium GP), Blue & Silver, Inc. (Blue
& Silver) and Jerral Jerry Wayne Jones (Jerry Jones) (collectively with the

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NFL, Defendants, and collectively without the NFL, the Cowboys


Defendants). [ROA.67]
Plaintiffs Consolidated First Amended Complaint asserted causes of action
against all Defendants for breach of contract, breach of the covenant of good faith
and fair dealing, fraudulent inducement, fraudulent concealment, two separate
counts of negligent misrepresentation based on affirmative misrepresentations and
concealment, violations of the DTPA, and negligence. [ROA.564]
E.

Defendants Motions to Dismiss.

On December 21, 2011, Plaintiffs filed a consolidated First Amended


Complaint. [ROA.564] On July 19, 2012, the district court denied in part, and
granted in part without leave to amend, Defendants motion to dismiss Plaintiffs
tort claims in their First Amended Complaint. [ROA.1119] The court dismissed
the

fraudulent

inducement,

fraudulent

concealment,

and

negligent

misrepresentation claims of the Displaced Plaintiffs and Relocated Plaintiffs.


[ROA.1125-1126] The court also dismissed the Displaced and Relocated
Plaintiffs claims for violations of the DTPA based on fraud, and all of Plaintiffs
DTPA claims based on breach of express and implied warranties [ROA.11271128]. Finally, the court dismissed all of Plaintiffs claims against the Cowboys
Defendants in their entirety without leave to amend. [ROA.1130]
F.

The Motion for Class Certification.

Plaintiffs sought to certify the lawsuit as a class action with three principal
classes of plaintiffs. [ROA.2657]
Specifically, Plaintiffs moved for the certification of a Displaced Class.
[ROA.2669.] This group of ticketholders, represented by Plaintiffs Ibe, Wanta, and
Laffin, consisted of all persons who paid for and/or acquired tickets to Super Bowl
XLV and were denied seats to the game.

[ROA.2672-2673]

The class was

comprised of persons who bought and/or acquired tickets for the following seats

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within Cowboys Stadium: Section 425A, Row 22, Seats 6-21; Rows 23-32, Seats
4-21; Row 33, Seats 1-21; and Section 430A, Row 22, Seats 13-28; Rows 23-32,
Seats 13-30; Row 33, Seats 13-33. [ROA.3106 at 1.] The NFL later admitted that
Super Bowl XLV ticketholders were entitled to a seat for the game and that the
NFL was unable to provide a seat to the Super Bowl XLV holding tickets to the
above-referenced seats. [ROA.3106] While at the time the lawsuit was filed, more
than 400 fans were estimated to be part of the Displaced Class, after settlements
orchestrated by the NFL, Plaintiffs estimated that there were at least 55 individuals
remaining in the Displaced Class at the time Plaintiffs moved for class certification.
[ROA.2673; ROA.2706]
Plaintiffs also moved to certify a Delayed/Relocated Class. [ROA.2673]
This Class consisted of a Delayed Subclass and Relocated Subclass. [ROA.2673]
The proposed Relocated Subclass (referred to hereinafter as the Relocated
Class), represented by Plaintiffs McLear and Burgwin, consisted of ticketholders
who were delayed in gaining access to their seats because their assigned sections
were not ready to be occupied until well past the time the stadium doors opened at
1:00 p.m. as expressly promised.

[ROA.2673-2674] These individuals were

relocated away from their assigned seats to lesser quality seats. [ROA.2673] It
included all rows and seats within Sections 205A, 215A, 230A, and 240A. The
NFL did not dispute this definition. [ROA.3107-3108 at 3).]
Finally, Plaintiffs sought to certify an Obstructed View Class. [ROA.2675]
This group of ticketholders, represented by Plaintiffs Fortune and Hoffman,
consisted of ticketholders who acquired seats with obstructed views of the playing
field and/or Video Board.

[ROA.2675]

Obstructed view seats were located

throughout the stadium within the temporary seating sections. [ROA.2710-2712]


Plaintiffs relied on internal NFL photographs, diagrams, and spreadsheets showing
that there were obstructed view seats in numerous temporary seating sections

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throughout the stadium.

Page: 34

Date Filed: 08/21/2015

[ROA.2742-2746; ROA.2755-2758; ROA.2865-2875;

ROA.2947-2948; ROA.2950; ROA.2971; ROA.4804-4806; ROA.4808-4809;


ROA.4811; ROA.4813-4814;; ROA.4828-4830]

Plaintiffs also submitted

affidavits of Fortune and Hoffman, as well as affidavits of unnamed class members


who sat in various sections and confirmed they had obstructed views, to support
class

certification.

ROA.2792-2794;

[ROA.2742-2746;
ROA.2799-2801;

ROA.2755-2758;
ROA.2806-2808;

ROA.2786-2788;
ROA.2813-2815;

ROA.2820-2822; ROA.2829-2831; ROA.2829-2831; ROA.2835-2837]


Even though it denied the existence of any seat having an obstructed view of
the playing field, the NFL admitted all of the seats in rows 36 through 45 in
sections 201A-204A, 216A-219A, 226A-229A, 241A-244A, 220A-224A, and
245A-249A did not have an unobstructed view of the entirety of the video board
hanging above the center of Cowboys Stadium while seated. [ROA.3136-3137 at
13]
On July 9, 2013 the district court denied Plaintiffs class certification motion
in its entirety. [ROA.7221]
G.

Motion for Summary Judgment.

On July 15, 2013, the NFL filed its Motion for Partial Summary Judgment
and for Partial Dismissal for Lack of Subject Matter Jurisdiction. [ROA.7266] On
September 30, 2014, the district court entered an order dismissing the fraudulent
inducement claims of plaintiffs based on obstructed view of the Video Board, but
denying the remainder of the motion. [ROA.10770-ROA.10792]
H.

Trial.

Trial in this matter occurred on March 2nd through 12th, 2015. On March
10, the district court granted, in part, the NFLs motion for judgment as a matter of
law pursuant to Rule 50(a). [ROA.17440:19-17441:2] The court denied the NFLs
motion to dismiss Plaintiffs Fortune and Hoffmans fraudulent inducement claim,

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but granted the NFLs motion to dismiss Plaintiffs request for punitive damages.
That same day, at the charge conference, the court denied Plaintiffs Proposed Jury
Instruction No. 18 by which Plaintiffs requested that the jury be given an
instruction on fraudulent inducement based on non-disclosure.
The jury was charged on March 12. [ROA.14791] On March 13, the jury
returned a verdict finding the NFL breached its contract as to all seven Plaintiffs
and awarding damages of between $5,670.00 and $22,000 to the various Plaintiffs.
The jury also found the NFL was not liable for fraudulent inducement as to
Plaintiffs Fortune and Hoffman. [ROA.14808]
On March 25, the Court entered judgment in accordance with the verdict.
[ROA.14821]

VI.

ARGUMENT
A.

The District Courts Denial of Class Certification Was an Abuse


of Discretion.
1.

Standard of Review

This Court reviews a district courts ruling on a class certification motion for
abuse of discretion. See In re Rodriguez, 695 F.3d 360, 364 (5th Cir. 2012). A
district court abuses its discretion if it bases its decision on an erroneous view of
the law or on a clearly erroneous assessment of the evidence. Esmark Apparel
Co. v. James, 10 F.3d 1156, 1163 (5th Cir. 1994).
2.

The District Courts Denial of Class Certification of the


Displaced Class Was an Abuse of Discretion

The district court refused to certify the Displaced Class on the grounds that
(a) Plaintiffs had not satisfied the Rule 23(a)s requirement that the class be so
numerous so as to make joinder impracticable and (b) that individual damages
issues predominated. The court erred in both respects.

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(a)

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Plaintiffs Satisfied the Numerosity Requirement And


Joinder Was Impracticable

The district court erred in finding Plaintiffs had not shown the class was so
numerous as to make joinder impractical because Plaintiffs presented evidence
estimating that the proposed Displaced Class consisted of at least 55 class
members [ROA.2673; ROA.2706], while the NFL admitted there were as many as
42 class members. [ROA.3638]
However, even accepting the NFLs estimate that the Displaced Class
consisted of 42 class members as opposed to 55 (it did not), a presumption of
impracticability was still raised.

[A] class of 40 or more members raises a

presumption of impracticability of joinder based on numbers alone and thus


satisfies the numerosity requirement. See Newberg on Class Actions 3:12 & n.9
(emphasis added); see also Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620,
624 (5th Cir. 1999) (citing Newberg for presumption); Consol. Rail Corp. v. Town
of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) ([N]umerosity is presumed at a
level of 40 members); Vega v. TMobile USA, Inc., 564 F.3d 1256, 126667
(11th Cir. 2009) (citation and quotation omitted) (more than forty is an adequate
class size). Accordingly, courts in this circuit and others have routinely concluded
that 40 or more class members satisfies numerosity. See, e.g., Jones v. Diamond,
519 F.2d 1090, 1100 n.18 (5th Cir. 1975) (numerosity satisfied by a class of 48
members).
In addition to the presumption that joinder was impracticable due to the class
size of at least 42 members, that fact that joinder was impracticable should have
been readily inferred from the record.

See Mullen, 186 F.3d at 624-25 (in

analyzing numerosity element, explaining that [n]otwithstanding the lack of any


direct evidence, the district court reasonably inferred from the nature of the
putative class members employment that some of them would be geographically

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For example, the case involves putative class

members from all across the country who traveled to Dallas for Super Bowl XLV.
Hauling all of those class members back to Dallas via joinder is unrealistic and
impractical - the geographic diversity of the putative class alone demonstrates
joinder was impracticable. Likewise, the impracticability of joinder should have
been inferred from the relatively low monetary sum that each putative class
member sought in compensatory damages for breach of contract as demonstrated
by the trial in this case. The parties engaged in a highly contentious trial in which
the monetary demand of the three Displaced plaintiffs (Ibe, Wanta, and Laffin) for
breach of contract totaled less than $30,000. To suggest that it is practicable for
the resources of the district court and the attorneys for the parties to be occupied by
at least 10-20 additional lengthy jury trials defies reason.
(b)

Individual Issues on Damages Does Not Preclude


Class Certification

The district court also erred in concluding individual issues predominated


under Rule 23(b)(3).

The district court held individual damages issues

predominate over the one remaining common legal issue held to exist by the
court, which was whether the ticket terms require the NFL only to refund to
displaced ticketholders the face value of the ticket or whether such fans are entitled
to the full range of damages generally permitted under contract law. [ROA.72377238] That ruling was in error because even though the amount of each class
members damages may have varied, each class member suffered the same injury
i.e. each class member was damaged because each paid for a ticket to the game but
was not given a seat to the game. See In re Deepwater Horizon, 739 F.3d 790,
810-11 (5th Cir. 2014) (legal requirement that class members have all suffered
the same injury can be satisfied by an instance of the defendant's injurious
conduct, even when the resulting injurious effectsthe damagesare diverse.)

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(emphasis added); Bell Atlantic Corp. v. AT&T Corp., 339 F.3d 294, 307 n. 17
(5th Cir. 2003)([D]ifferences among the members [of a class] as to the amount of
damages incurred does not mean that a class action would be inappropriate.);
Newberg on Class Actions 4:54 (courts in every circuit have uniformly held that
the 23(b)(3) predominance requirement is satisfied despite the need to make
individualized damage determinations.).
Thus, even where damages are individualized, [t]here are a number of
management tools available to a district court to address any individualized
damages issues that might arise in a class action[.]

In re Visa

Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 141 (2nd Cir. 2001)
(citations omitted). These tools include: (1) bifurcating liability and damage trials
with the same or different juries, (2) appointing a magistrate judge or special
master to preside over individual damages proceedings; (3) decertifying the class
after the liability trial and providing notice to class members concerning how they
may proceed to prove damages; (4) creating subclasses; and/or (5) altering or
amending the class. Id. In addition, Rule 23(c)(4) gives the district court the
authority to certify a class with respect to particular issues.
Here, rather than adopt one of those tools, the court reasoned that if the
Court resolved the common issues and held mini-trials on damages, the problem is
still the same: proof of damages will be required for every class member.
[ROA.7248.] This reasoning was flawed. The identity of each Displaced Class
member was known by seat number and each class member suffered damage.
While individual determinations of the amount of damages might exist, the district
court erred in not using phased trials or other methods to simply address the
amount of damages for each class member.
Deepwater Horizon, a class action arising out of a large oil spill in the Gulf
of Mexico, is instructive in this regard. There, this Court upheld class certification

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concerns

that

individual

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considerations

would

overwhelm class issues. 739 F.3d 815-16. The Court held that damages could be
left for later adjudication in a phased structure, explaining that [t]he initial phases
of this litigation would therefore have focused on common questions, including
which defendants bore responsibility for the well blowout, how much oil escaped
from the Macondo reservoir, who bore responsibility for the inability of the
defendants to contain the flow earlier, where the oil finally came to rest, and how
the efforts to disperse the oil were conducted. Id. at 816. Although the lower
court did not elaborate on how damages would be calculated if a settlement failed,
this Court found that such risk was outweighed by the benefits of trying related
claims together: [t]he phased trial of common issues in this case would
undoubtedly prevent the repetitious re-litigation of these common issues by each
individual claimant in thousands of separate lawsuits. Id. at 817. The Court
concluded that certification would achieve economies of time, effort, and
expense, and promote . . . uniformity of decision as to persons similarly situated,
without sacrificing procedural fairness or bringing about other undesirable results.
Id. (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615 (1997)); see also
Butler v. Sears, Roebuck & Co., 727 F.3d 796, 800 (7th Cir. 2013). This case is no
different and the district court erred in concluding otherwise.
3.

The District Courts Denial of Class Certification of the


Relocated Class Was an Abuse of Discretion

The court also erred in denying class certification of the Relocated Class.
The court recognized common issues of liability existed (such as whether the NFL
had an obligation to provide relocation seat of equal or higher quality and whether
the failure to do so was a breach of contract) but nonetheless denied class
certification on the grounds that individual issues of liability and damages
predominated.

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The District Courts Conclusion that Individual Issues


on Liability Predominated Over Common Issues

The court first erred in denying class certification on the grounds that
individual issues of liability predominated. In particular, the court concluded that
the NFLs contention that it could only be liable to relocated fans if the fans
specifically chose their original seats would require an individual determination of
whether each class member picked a particular seat or purchased a ticket without
knowing their exact location in the stadium. That was in error because (1) whether
the NFL could only be liable to Relocated Class members if they chose their
original seats was itself a common question of liability; and (2) even if a class
member had not picked a particular seat at the time of purchase, once the NFL
provided each Relocated Class with a ticket for a specific seat, the NFL had no
unilateral right to move that class member to an inferior seat. In other words, the
NFLs contention did not create an individual issue, and certainly not one that
predominated over the other common issues identified by the district court.
(b)

Individual Issues on Damages Does Not Preclude


Class Certification

The court also denied class certification of the Relocated Class on the
grounds that individual issues of damages predominated because (1) each class
member would be required to individually prove the amount of his or her damages
and (2) each class member would be required to individually show that his or her
replacement seat was of lesser quality. As set forth above with respect to the
Displaced Class, the fact that class members may have suffered different amounts
of damage does not preclude class certification.
Likewise, the district court was wrong in holding that individual issues
predominated as a result of each class member allegedly needing to show his or her
seat was of lesser quality. To begin with, whether or not members of the

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Relocated Class received seats of lesser quality was not an individual issue as to
liability because by failing to provide class members their specific assigned seats
listed on their tickets, the NFL, per se, breached its contract. The only remaining
issue of whether the replacement seats were inferior would be one of damages.
Yet, even if each class member had to prove inferiority, common issues
would still predominate because there are objective criteria to determine whether
putative class members received worse seats. Here, members of the Relocated
Subclass acquired tickets for sections 205A, 215A, 230A, and 240A. Therefore, it
is obvious that those class members who got moved to one of the seats in the 300
or 400 levelsboth of which are higher in the stadium from their original
seatsreceived worse or lesser quality seats. In fact, according to the NFLs
interrogatory responses, an estimated 297 individuals in the Relocated Subclass fall
within this category. [ROA3139-3143 at 17.]
Similarly, to determine whether class members who were relocated outside
the 300 or 400 levels received lesser quality seats, other objective criteria may
be employed, including, (1) yard-line position, (2) actual sales price based on NFL
sales data [ROA.4500-4519; ROA.4521-4537], and (3) face value. Indeed, the
NFL itself routinely made reference to certain seats within the stadium being
better or worse than others. [ROA.4462] There is no reason why this same
methodology could not have been adapted here.
4.

The District Courts Denial of Class Certification of the


Obstructed View Class Was an Abuse of Discretion

The court likewise erred in denying class certification for the Obstructed
View Class.

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The District Court Erred In Holding Individual Issues


Predominated on the Obstructed View Class Breach
of Contract Claim

The court erred in refusing to certify a breach of contract claim for the
Obstructed View Class. The district court found Plaintiffs met the Rule 23(a)
prerequisites, but nonetheless held individual issues predominated.

The court

divided its analysis by those members of the class who had an obstructed view of
the field and those that had an obstructed view of the Video Board.
As to those with an obstructed view of the field, the district court held an
individualized inquiry to determine the extent of the obstruction is necessary for
purposes of gauging the materiality of the breach and the amount of damages.
[ROA.7256] This was erroneous as common evidence showed that any obstructed
view of the field was material. For example, when the NFL sold tickets marked
Restricted View, these tickets did not contain disclosures describing the
obstructions. In other words, they did not say Restricted View-Pillar, Restricted
View-Overhang, etc. They simply stated Restricted View. In fact, the NFL
knew the Restricted View seats would have disparate views, yet made no attempt
to describe those views to prospective purchasers or differentiate their pricing
based on quality of the views. [ROA.2907; ROA.4462; ROA.4477; ROA.57945795] Therefore, the fact that the degree or extent of the obstructions differed
between putative class members did not create individual issues.

Whether a

persons view was 10 percent, 50 percent, or 99 percent obstructed, the NFL


routinely treated such tickets as one and the same by simply marking them
Restricted View and reducing their face value across-the-board to $600. Beyond
that, methods were available to ascertain the extent of the obstructions using
common evidence. For example, Plaintiffs presented evidence of photographs,
spreadsheets, and other materials produced by the NFL showing which specific

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Additionally, Plaintiffs pointed to evidence

showing that Populous and Seating Solutions, the two companies the NFL relied
upon with respect to temporary seating, admitted that they both used sightline
projections and analysis to determine which seats would have obstructed views
before any temporary seat had actually been installed in the stadium. [ROA.57695770; ROA.5820-5821]

Thus even if the extent of the obstruction was an

individual issue (1) it could be proven by common evidence and (2) it did not
predominate over other common issues like whether the NFL had an obligation to
mark obstructed view seats as Restricted View.
With respect to those class members with an obstructed view of the field, the
court also held that individual issues as the amount of their damages predominated.
That was in error for the same reasons it was in error with respect to the Displaced
and Relocated Classes.
Regarding Obstructed View class members who had an obstructed view of
the Video Board, the district court recognized a common issue existed regarding
whether it is a breach of contract to provide to a ticketholder whose seat was not
marked Restricted View a seat with obstructed view of the Video Board. The
court nonetheless held the extent of the obstruction and damages were individual
issues that predominated. That was erroneous for the same reasons that the extent
of the obstruction and the amount of damages are not sufficient to preclude class
certification of those with obstructed views of the field.
(b)

The District Court Erred In Holding Individual Issues


Predominated

on

the

Obstructed

View

Class

Fraudulent Inducement Claim


The district court also erred in denying certification of the Obstructed View
class fraudulent inducement claim, which was based on the NFLs failure to
disclose the ticket was for an obstructed view seat. The court realized questions

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over whether the NFL had a duty to disclose any obstructed views of the field or
the Video Replay Board are common to the entire class but nonetheless held
reliance was an individual issue precluding class certification. In so ruling, the
district court erred and ignored the holding in Affiliated Ute Citizens v. United
States, 406 U.S. 128, 153-154 (1972), and other cases establishing a presumption
of reliance based on the materiality of the information (which, as noted above,
could be proven by classwide evidence that any obstructed view is material).
[W]here a plaintiff alleges deception by defendants nondisclosure of
material information, there is a presumption that obviates the need for plaintiff to
prove actual reliance on the omitted information. Rifkin v. Crow, 574 F.2d 256,
262 (5th Cir. 1978). This presumption of reliance in fraudulent non-disclosure
cases was established by the U.S. Supreme Court in Affiliated Ute Citizens. Thus,
in cases involving primarily a failure to disclose, positive proof of reliance is not a
prerequisite to recovery. All that is necessary is that the facts withheld be material
in the sense that a reasonable investor might have considered them important in the
making of this decision. Id. (emphasis added). Further, where a party had no
opportunity to learn the truth, a presumption of reliance is warranted to a greater
degree than where there is a misrepresentation. In re Great Southern Life Ins. Co.
Sales Practices Litig., 192 F.R.D. 212, 220 (N.D. Tex. 2000).
The present case fits squarely within the framework of Ute and its progeny.
Like those cases, (1) putative class members have a standardized contract with the
NFL in the form of the tickets they held for seats at the Super Bowl, (2) this is a
fraud case based solely on the omission of a material fact, and (3) the information
being withheldthe existence of obstructed viewsis material because it is
information that a reasonable person would attach importance to and would be
induced to act on in determining his choice of actions in the transaction in

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question. Citizens Natl Bank v. Allen Rae Investments, Inc., 142 S.W.3d 459,
478-479 (Tex. 2004).
Additionally, the district court held the individual issues of damages on the
fraudulent inducement claim predominated, but as set forth above, that was in error
because differences in the amount of class members damages are not sufficient to
preclude class certification. Moreover, with respect to the Obstructed View Class,
the court ignored Plaintiffs proposal for a simplified damage model awarding a 33
percent refund of the cost of the ticket. This is based on evidence of how the NFL
priced obstructed view seats marked Restricted View. Specifically, the NFL sold
1,458 tickets in the Silver Level of the stadium that were marked as Restricted
View [ROA.3731 at 4] The face value of these tickets was $600. [ROA.4462]
Seats within the Silver Level that were not marked with Restricted View had a
face value of $900.

[ROA.2790]

Therefore, according to the NFLs own

calculations, the value of obstructed view seats is at least 33 percent less than seats
with no obstructed views. By adopting this simple refund model for damages, the
district court could have avoided any individual issues on damages.
B.

The District Courts Order Granting Summary Judgment Was In


Error.
1.

Standard of Review

This Court reviews a district courts award of summary judgment de novo.


Minter v. Great Am. Ins. Co., 423 F.3d 460, 464-65 (5th Cir. 2005). In assessing a
motion for summary judgment, the court must review the record taken as a
whole, and must draw all reasonable inferences in favor of the nonmoving
party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)
(internal quotation marks omitted).

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Summary Judgment Was Improper On The Breach of


Contract Claim Based On the NFL Failing to Provide
Unobstructed Views of the Video Board

The district court erred in granting summary judgment to the NFL on


Plaintiffs Fortune and Hoffman claims for breach of contract based on the NFL
failing to provide them with seats that had an unobstructed view of the Video
Board (and not disclosing the obstruction on the ticket). The court realized that
failing to provide a ticketholder with an unobstructed view of the playing field
would be a breach of contract, but nonetheless held as a matter of law that failing
to provide that same ticketholder with an unobstructed view of the Video Board
could not be a breach of contract.
This issue before the district court turned on whether, as a matter of law, the
phrase entry in the stadium and a spectator seat for the game in the ticket
contract meant the ticketholder had no right to an unobstructed view of the Video
Board or whether the phrase was, at a minimum, ambiguous such that extrinsic
evidence needed to be considered by a finder of fact in order to determine whether
the ticket contract granted the ticketholder a right to an unobstructed view of the
Video Board. The court erred in holding that, as a matter of law, the phrase did not
grant the ticketholder a right to an unobstructed view of the Video Board. That is
the case for at least the following reasons.
First, the language spectator seat for the game cannot be given a definite
or certain legal meaning as is required to resolve its interpretation as a matter of
law.

Dell Computer Corp. v. Rodriguez, 390 F.3d 377, 388 (5th Cir. 2004)

(emphasis added). It is well known that at Cowboys Stadium, the Video Board is
very much part of the action that is taking place on the field and, therefore, is an
unmistakable part of viewing experience at the game. The Video Board, in fact,
displayed the action on the field in real-time and was promoted as part of the

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game. For example, in an interview with USA Today, Jerry Jones admitted that
the action on the field is simultaneously displayedwith not even a nano-second
of delayon the enormous video screens that hang above the center of the field
and are purportedly visible no matter where one sits in the stadium. [ROA.9618]
Indeed, according to the NFL, the Video Board was part of the big draw of their
stadium. [ROA.9635] Moreover, the ability to view instant replaywhich was
also displayed on the Video Boardis a critical and fundamental part of every
present day NFL in-stadium game experience. All of this is consistent with the law
that a ticket for a spectator seat is in the nature of a permit to enter a place of
amusement and to use such accommodations as are provided for the enjoyment of
the entertainment offered. Jordan v. Concho Theatres, 160 S.W.2d 275, 276 (Tex.
Civ. App. 1941) (emphasis added).3
However, instead of choosing precise language such as spectator seat for
the playing field or spectator seat for the game on the playing field to ensure
fans were not misled by the promotion of the Video Board and to make clear that
fans had no contractual right to a view of the Video Board screens or replays, the
NFL chose the broader language spectator seat for the game. [ROA.10162]
Indeed, the NFLs own later choice of words during discovery and trial in
describing what it believed it was required to give the fans provided a strong
indication that the phrase spectator seat for the game was ambiguous, at best.
According to the NFLs witnessesincluding Frank Supovitz who approved the
content and language of the Super Bowl XLV ticketsthe NFL was required to
provide ticketholders only with an unobstructed view of the playing field from
sideline to sideline and endline to endline. [ROA.9599; ROA.9613; ROA.9618]
3

Jordan is the case the court itself cited to define the nature of the Super Bowl
tickets at issue in this litigation. [ROA.10780 at fn. 68.] The court then ignored the
case as it applied to the Video Board obstructions.

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Indeed, the NFLs witnesses carefully chose the term playing field as opposed to
game during discovery and trial. Presumably, they did so in order to remove the
clear ambiguity from their definition. For these reasons at a minimum, the term
game as used in the tickets was reasonably susceptible to more than one
interpretation and thus ambiguous.

The court should have denied summary

judgment and allowed the jury to resolve the ambiguity. See, e.g., Amigo Broad.,
LP v. Spanish Broad. Sys., Inc., 521 F.3d 472, 488-489 (5th Cir. 2008) (holding
the term name in a licensing provision of employment agreement between a
radio station and its on-air personalities was ambiguous); Dell Computer Corp. v.
Rodriguez, 390 F.3d at 389 (where contract is susceptible of either reading, both
of which are reasonable that is the very definition of ambiguity.).
Second, the district courts order was also erroneous because the court
ignored evidence of the surrounding circumstances, the subject matter of the
contract, and prior negotiations and all other relevant incidents bearing on the
intent of the parties demonstrating the language on the tickets were ambiguous.
[A]ppellate courts may examine extrinsic evidence of surrounding circumstances'
or the subject matter of the contract to determine if a latent ambiguity exists.
Dell, 390 F.3d at 389 n.24 (emphasis added).

Here, the extrinsic evidence

presented to the district court established that the NFL believed ticketholders were
entitled to have an unobstructed view of the Video Board. For example:

NFL Commissioner Goodell confirmed that seats that fail to provide


unobstructed views of the stadium are obstructed view seats. [ROA.9743]

It was a requirement of the temporary seating project for the contractor to


install seats that provided sightlines to the Video Board. [ROA.9912-9913;
ROA.9916-9918; ROA.9920; ROA.9923; ROA.9966; ROA.9983-9998]

In internal communications, NFL officials along with their consultants


routinely referred to seats with trouble seeing the Video Board as

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obstructed view seats. [ROA.9850-9851; ROA.9959-9961; ROA.99759976; ROA.9978]

The NFL and its consultants claimed they went to great lengths to identify
which seats had obstructed views of the Video Board before the game.
[ROA.9858-9859; ROA.9946-9947]

The NFL and Populous directed the seating contractor to remove certain
seats solely because they did not furnish unobstructed views of the Video
Board.

[ROA.9845; ROA.9847-9850; ROA.9852-9853; ROA.9957;

ROA.9959-9961; ROA.9968-9969; ROA.9970-9972]


Third and finally, the silence of the ticket contracts with regards to specific
references to the playing field and the Video Board also creates an ambiguity. See,
e.g., Hewlett-Packard v. Benchmark, 142 S.W.3d 554, 561 (Tex. App.
2004). There are numerous benefits that are left out of the ticket contracts, but
over which there can be no dispute that fans are entitled to receive as part of their
tickets. For example, the ticket contracts make no reference to access to restrooms,
to food and concession stands, ability to watch the Super Bowl halftime show,
ability to hear or see the game, and many other aspects fundamental to attending
the Super Bowl. Similarly, the ability to view the playing field and the Video
Board need not be spelled out in the contract. Thus, the silence of the ticket
contracts regarding the Video Board at the very minimum establishes an ambiguity
that cannot be resolved on summary judgment.
3.

The District Court Erred In Granting Summary Judgment


On Fraud Claims For Failure to Disclose Obstructed Views
of the Video Board

In addition to granting summary judgment to the NFL on Plaintiffs Fortune


and Hoffmans breach of contract claims for obstructed view seats of the Video

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Board, the court also erroneously dismissed Fortune and Hoffmans fraudulent
inducement claims relating to the Video Board, stating as follows:
[T]he Court finds the NFL had no contractual obligation
to provide seats with a view of the video board. Because
Plaintiffs point to no evidence outside the ticket terms
that imposes a duty on the NFL to disclose that a view of
the video board was obstructed, the Court holds that their
fraudulent inducement claims relating to the video board
fail as a matter of law.
[ROA.10789] The courts ruling was in error for several reasons.
First, for the reasons stated above, there was a triable issue as to whether the
NFL had a contractual obligation to provide seats with a view of the Video Board.
Second, the district courts ruling was factually erroneous.

The court

dismissed Fortune and Hoffmans fraudulent inducement claim relating to the


Video Board as a matter of law because Plaintiffs purportedly point[ed] to no
evidence outside the ticket terms that imposes a duty on the NFL to disclose that a
view of the video board was obstructed[.]

[ROA.10789]

To the contrary,

Plaintiffs presented voluminous evidence creating a genuine issue of material fact


on their fraudulent inducement claim relating to the Video Board. See Section
V(B), supra. A duty to speak arises by operation of law when . . . one party
knows that the other party is relying on a concealed fact, provided that the
concealing party also knows that the relying party is ignorant of the concealed fact
and does not have an equal opportunity to discover the truth. Union Pac. Res.
Grp., Inc. v. Rhone-Poulenc, Inc., 247 F.3d 574, 586 (5th Cir. 2001). In addition,
a duty to disclose may arise, among other circumstances, when one makes a
partial disclosure and conveys a false impression. See Rio Grande Royalty Co.,
Inc. v. Energy Transfer Pners, L.P., 620 F.3d 465, 468 (5th Cir. 2010). A duty to

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speak also arises between non-fiduciaries when one party learns later that his
previous affirmative statement was false or misleading. Shandong Yinguang
Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029, 1035 (5th Cir. 2010)
(quoting Rhone-Poulenc, Inc., 247 F.3d at 586 & n.33).
Here, as set forth above, Plaintiffs presented evidence that (i) the NFL knew
Fortune and Hoffman did not know that their seats would not have views of the
Video Board, and (ii) Fortune and Hoffman did not have an equal opportunity to
discover that fact.

[ROA.9858-9859; ROA.9946-9947; ROA.9959-9961]

Likewise, Plaintiffs presented evidence the NFL knew that selling tickets to
Fortune and Hoffman listing assigned seats with no disclosure that they would not
be able to see the Video Board was a partial disclosure that convey[ed] a false
impression. See Rio Grande Royalty, 620 F.3d at 468. [ROA.9743:11-9744:14;
ROA.9851;

ROA.10012-10013;

ROA.16521:3-18;

ROA.9860;

ROA.9946-9947;

ROA.10057-10058;

ROA.9858-9859;

ROA.9841;

ROA.9860;

ROA.9863; ROA.11746-11747] Plaintiffs also presented evidence that the NFL


learned its previous affirmative statement[s] on the tickets suggesting there were
no obstructed views were false or misleading when it re-discovered that Fortune
and Hoffmans seats did not have appropriate views of the Video Board. See
Shandong, 607 F.3d at 1035.

[ROA.9860; ROA.10057-10058; ROA.9841;

ROA.9860; ROA.9863; ROA.11746-11747; ROA.9959-9961]

Therefore, the

courts order granting summary judgment was error.


C.

The District Courts Charge to the Jury on Plaintiffs Fortune and


Hoffmans Fraudulent Inducement Claim Was Error.
1.

Standard of Review

The district courts instructions to the jury are reviewed for abuse of
discretion. See Le Boeuf v. K-Mart Corp., 888 F.2d 330, 334 (5th Cir.1989).
Nevertheless, a court must instruct the jurors, fully and correctly, on the

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applicable law of the case, and . . . guide, direct, and assist them toward an
intelligent understanding of the legal and factual issues involved in their search for
truth. Bender v. Brumley, 1 F.3d 271, 276 (5th Cir. 1993).
2.

The District Court Should Have Instructed the Jury on


Fraud Based on Non-Disclosure

The court erroneously denied Plaintiffs Proposed Jury Instruction No. 18, in
which Plaintiffs asked for an instruction on fraud through a failure to disclose
obstructed views of the playing field, including failure to disclose information the
NFL allegedly learned after they placed the tickets into the stream of commerce.
[ROA.11367; ROA.14791; ROA.17447:10-14; ROA.17448:17-23]

The courts

failure to instruct the jury on fraud by non-disclosure was an abuse of discretion


and warrants a new trial.
In addition to the circumstances set forth above, a duty to speak also arises
between non-fiduciaries when one party learns later that his previous affirmative
statement was false or misleading. Shandong, 607 F.3d at 1035 (quoting RhonePoulenc, 247 F.3d at 586). Here, Plaintiffs proposed jury charge on fraud through
a failure to disclose tracked this well-established law in Texas, and, in fact, was
based on Texas Pattern Jury Charge 105.4. By refusing to give this instruction, the
district court prevented the jury from considering whether the NFL committed
fraud by failing to disclose material facts to Plaintiffs Fortune and Hoffman
concerning the obstructed view of the playing field from their seats.
Specifically, Plaintiffs presented evidence at trial that despite selling tickets
to Fortune and Hoffman that had no indication of any obstructed or restricted view,
the NFL, at a minimum, acquired new information well before the game that made
its earlier information misleading or untrue and which conveyed a false impression
and thus subjected the NFL to liability.

[ROA.9844-9845; ROA.9847-9848;

ROA.9851-9852; ROA.9855-9856; ROA.9632; ROA.9946-9947; ROA.7468;

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ROA.9978; ROA.10268; ROA.15867:16-15869; ROA:17091:19-17092:16; Trial


Ex.

552;

ROA.17093:12-14;

ROA.17087.15-17089:5;

ROA:17092:23-17093:3;

ROA.17085:4-11;

Trial

Ex.

554;

ROA.17090:24-17091:4;

ROA.16441:23-16442:16; ROA.16153:4-6; Trial Exhibit 182; ROA.16555:1916556:5; ROA.16582:16-16583:14; ROA.16580:16-16581:20; ROA.16571:2116572:5;

Trial

ROA.16065:1-4;

Exhibit

119;

ROA.15755:20-15756:2;

ROA.16060:14-16061:11;

ROA.15867:3-8;

ROA.15911:19-15913:3;

ROA.15909:20-15911:25]
Moreover, the fact that the NFL acquired information suggesting there
would be sightline problems with Fortune and Hoffmans seats after January 11,
2011, the date the NFL distributed the tickets to the teams, does not relieve it of
having committed fraud by omission. The law is clear that a fraud claim may be
based on misrepresentations and omissions occurring after the execution of a
contract between the parties, including new information the seller learns of after
the sale. See Texas Pattern Jury Charges 105.4; see also Anderson, Greenwood &
Co. v. Martin, 44 S.W.3d 200, 212-13 (Tex. App. 2001) (when one makes a
representation, he has a duty to disclose new information when he is aware the new
information makes the earlier representation misleading or untrue); Kajima Intl
v. Formosa Plastics Corp., 15 S.W.3d 289, 292-294 (Tex. App. 2000) (trial courts
instruction inadequate because it precluded consideration of any fraud occurring
after the execution of the contract.); Regus Management Group, LLC v.
International Business Machine Corp., No. 3:07-CV-1799-B, 2008 WL 1836360,
at *7 (N.D. Tex. Apr. 24, 2008); Nat'l Ctr. for Policy Analysis v. Fiscal Assocs.,
No. CIV.A. 97CV2660L, 2002 WL 433038, at *5-6 (N.D. Tex. Mar. 15, 2002);
Experian Info. Solutions, Inc. v. Lexington Allen L.P., No. 4:10-CV-144, 2011
WL 1627115, at *3, 8-12 (E.D. Tex. Apr. 7, 2011) report and recommendation
adopted, No. 4:10-CV-144, 2011 WL 1637935 (E.D. Tex. Apr. 28, 2011).

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The Decision Striking Punitive Damages Was Error

Plaintiffs also appeal the district courts order granting a directed verdict on
Plaintiffs punitive damages claim stemming from the fraud claim related to
obstructed views of the Video Board. Fraud may give rise to punitive damages.
Accordingly, by submitting the fraud claim to the jury, the district court inherently
recognized that evidence of fraud was presented at trial. Thus, it was error for the
district court to act as a fact finder, weigh that evidence and determine as a matter
of law that the evidence would be insufficient to support a punitive damages award.
This determination should have been left to the jury and the courts usurpation of
the jurys province was improper.
D.

The District Courts Dismissal of Plaintiffs Fraud and DTPA


Claims at the Pleading Stage Was Error.
1.

Standard of Review

This Court reviews the district courts dismissal under Rule 12(b)(6) de
novo, taking the allegations of the complaint to be true. Vander Zee v. Reno, 73
F.3d 1365, 1368 (5th Cir. 1996).
2.

The District Courts Dismissal of the Cowboys Defendants


Was Error
(a)

Plaintiffs Sufficiently Alleged That the Cowboys


Defendants Were Parties to the Ticket Contract

The court also erred when it granted the Cowboys Defendants motion to
dismiss all of the claims asserted against them in the First Amended Complaint
without leave to amend. This decision should be reversed for multiple reasons.
First, Plaintiffs sufficiently alleged a breach of contract claim against the
Cowboys Defendants. Specifically, Plaintiffs alleged that the Super Bowl XLV
tickets at issue had been sold to the Plaintiffs by the NFL and the Cowboys
Defendants; that the Cowboys Defendants received five percent (5%) percent of the

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tickets to resell to the fans; and that some of these tickets had been purchased by
Plaintiffs. [ROA.815 at 4.13.] Plaintiffs even went so far as to attach to the
complaint invoices listing Cowboys Stadium, L.P. as the seller and requiring
payment be made out to Dallas Cowboys. [ROA.853] Plaintiffs alleged that
payments went into the Cowboys Defendants accounts, with credit card
disbursements paid to the Dallas Cowboys. [ROA.815 at 4.13.] Moreover,
Plaintiffs alleged the Cowboys Defendants sent the Super Bowl tickets to
purchasers by Federal Express. [ROA.815]
These allegations give rise to more than a plausible inference that one or
more of the Cowboys Defendants were parties to the ticket contracts by virtue of
their sale of tickets to Super Bowl XLV.

See Talen's Landing, Inc. v. M/V

Venture, II, 656 F.2d 1157, 1160 (5th Cir. 1981) (affirming district court finding
that meter tickets and invoices reflecting sales together constituted a contract
between the parties); Hawkins v. Frick-Reid Supply Corp., 154 F.2d 88, 88 (5th
Cir. 1946) (holding invoice was contract of the parties); Chesapeake Operating,
Inc. v. Whitehead, No. CIV.A. C-10-301, 2011 WL 4372486, at *5 (S.D. Tex.
Sept. 19, 2011) (finding that invoices constituted contracts). The district court
erred by determining as a matter of law at the pleading stage that these allegations
could not support the existence of a contract.
Second, the Cowboys and the NFL were agents of one another and Plaintiffs
accordingly were free to sue either or both of them for breach of contract. It is a
settled rule of law that an agent may make a contract for an undisclosed principal in
his own name, and that the latter may sue or be sued on the contract. Latch v.
Gratty, Inc., 107 S.W.3d 543, 546 (Tex. 2003) (citing First Natl Bank of Wichita
Falls v. Fite, 131 Tex. 523, 115 S.W.2d 1105, 110910 (1938)).

In fact, in

discovery following dismissal of the Cowboys Defendants and at trial, the evidence
showed the NFL and Cowboys organization entered into an agreement imposing a

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contractual obligation on the Cowboys to timely construct the temporary seats for
Super Bowl XLV. [ROA.17373:20-23] The Cowboys assumed responsibility to
complete the temporary seats based on a provision entitled Temporary Seat
Installation.

This provision stated, in part, that the Licensor [i.e. Cowboys

Stadium, L.P.] must coordinate all scheduling for seat installation with NFL. As
such, Licensor acknowledges and agrees that NFL may determine if Licensors
installation of seats will unreasonably interfere with other NFL functions. Such
seating must be installed by January 30, 2011 with all work fully complete,
approved and ready for occupancy by such date.

[Trial Ex. 119 (emphasis

added).]
According to the NFL, this provision governed the installation of temporary
seats and required Cowboys Stadium, L.P. to install the temporary seats by January
30, 2011. [ROA.15755.20-15756:2] Jack Hill, the Stadium General Manager for
the Cowboys at the time of the Super Bowl XLV, readily admitted the Cowboys
organization was responsible for completing the temporary seating project.
[ROA.17122:11-18] Further, that the Cowboys had responsibility to the fans to
complete the temporary seats is consistent with Jerry Jones written apology to
fans. [ROA.825 at 4.47]
Therefore, the courts dismissal of the contract claim against the Cowboys
Defendants at the pleading stage was error.
(b)

Plaintiffs May Maintain Tort Claims Against the


Cowboys Defendants Related to the Ticket Sales.

If the Cowboys Defendants were parties to the ticket contract, then Plaintiffs
also may maintain fraud and DTPA claims against the Cowboys Defendants,
consistent with the district courts findings as to fraud claims which it held were
alleged against the NFL and consistent with other fraud claims against the NFL that
the district court improperly dismissed, as set forth above. In fact, the district

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courts only grounds for dismissing the fraudulent inducement claims against the
Cowboys Defendants was that the district court found (erroneously) that the
Cowboys were not a party to the ticket contracts. [ROA.1126] Accordingly, if the
courts dismissal of the contract claim was in error, then its dismissal of the
fraudulent inducement claim was necessarily also erroneous and should be
reversed. Further, if this Court concludes any other claims were dismissed in error,
such claims should also be reinstituted against the Cowboys Defendants.
3.

The District Court Erred In Granting The NFLs 12(b)(6)


Motion Dismissing the Fraudulent Inducement Claims of
the Displaced and Relocated Plaintiffs

The district court erred in granting a Rule 12(b)(6) motion by the NFL
related to the fraudulent inducement claims of the Displaced and Relocated
Plaintiffs (Ibe, Wanta, Laffin, and Burgwin). The court granted the motion in part,
on the grounds that Plaintiffs allegations as to the availability of the temporary
seats do not support a plausible inference of fraudulent inducement. [ROA.1125]
The district court reasoned that [w]ithout alleging facts supporting the allegation
that Defendants did not intend to construct the temporary seats for which tickets
were sold, Plaintiffs cannot recover on a theory of fraudulent inducement as to
temporary seats that were not completed and approved by game day. [ROA.1125]
The court also determined, without any evidence, that [t]he NFL had nothing to
gain by tricking fans into purchasing tickets that it did not plan on having
available. [ROA.1125] How the district court knew this to be true is unclear.
The courts dismissal ruling was erroneous for at least three reasons.
First, Plaintiffs were not required to allege that Defendants had a specific
intent not to perform the ticket contracts.

The reason is that a statement is

fraudulent not only when the maker knew it was false, but also when he or she
made it recklessly without any knowledge of its truth and as a positive assertion.

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Custom Leasing, Inc. v. Texas Bank & Trust Co., 516 S.W.2d 138, 143 (Tex.
1974) (emphasis added). A representation is reckless: (1) if it is made without
any knowledge of the truth and as a positive assertion; (2) if the person making the
representation knows that she does not have sufficient information or basis to
support it; or (3) if she realizes that she does not know whether or not the statement
is true. Livingston Livestock Exch., Inc. v. Hull State Bank, 14 S.W.3d 849, 852
(Tex. App. 2000) (citing Johnson & Higgins of Texas, Inc. v. Kenneco Energy,
Inc., 962 S.W.2d 507, 527 (Tex. 1998)). Here, even if the allegation of specific
intent was implausible (it was not), the allegation of recklessness was plausible,
thus requiring denial of the motion. [ROA.834-835 at 7.5.]
Second, Plaintiffs allegation of specific intent to defraud was not
implausible. Public statements of Jerry Jones, NFL officials, and others speaking
on behalf of Defendants, as pled in the operative complaint, give rise to a plausible
inference they defrauded fans in order to break the Super Bowl attendance record.
[ROA.811 at 4.6; ROA.813 at 4.10; ROA.814 at 4.11; ROA.817 at 4.24; ROA 818
at 4.26, 4.27; ROA.819 at 4.29; ROA.826 at 4.52] Plaintiffs also alleged facts
showing Defendants wanted to maximize profits, which likewise makes the
allegation of fraudulent intent plausible.

[ROA.809 at 4.2; ROA.826 at 4.6.]

Finally, Plaintiffs alleged facts showing Defendants wanted to avoid a public


relations debacle before the game, which again supports the allegation. [ROA.824
at 4.45; ROA.825 at 4.49]

Plaintiffs presented evidence corroborating these

allegations at trial. [ROA.16293:24-16295.24]


Third, the law does not require a plaintiff to plead fraudulent intent with
specificity. See Fed. R. Civ. P. 9(b) ([m]alice, intent, knowledge, and other
conditions of a persons mind may be alleged generally.).
Accordingly, the court erred when it held Plaintiffs had not plausibly alleged
fraudulent intent. Intent is a fact question uniquely within the realm of the trier of

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fact because it so depends upon the credibility of the witnesses and the weight to be
given to their testimony. Coffell v. Stryker Corp., 284 F.3d 625, 634 (5th Cir.
2002) (quoting Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986)).
A second stated basis upon which the district court dismissed the fraud
claims of the Displaced Class and Relocated Class was that Plaintiffs do not
allege that tickets were sold to Plaintiffs after Defendants knew that the seats
would not be completed. [ROA.1125] This was error. As discussed above,
whether Defendants knowledge of material facts that they were required to
disclose to Plaintiffs arose before or after the sale of tickets is irrelevant because a
fraud claim may be based on misrepresentations and omissions occurring after the
execution of a contract between the parties, including information the seller
learned after the contract was entered into. Defendants, therefore, had an ongoing
duty to disclose information they acquired after selling the tickets to Plaintiffs that
rendered Defendants earlier representations untrue, misleading, or deceptive. See,
e.g., Rio Grande, 620 F.3d at 468; Rimade, Ltd. v. Hubbard Enterprises, Inc., 388
F.3d 138, 143 (5th Cir. 2004); Anderson, 44 S.W.3d at 212-13; Citizens National
Bank, 142 S.W.3d at 476-77.
4.

The District Courts Conclusion that the Economic Loss


Rule Barred All of Plaintiffs Fraudulent Concealment and
Negligent Misrepresentation Claims Was Error

On Defendants motion to dismiss Plaintiffs tort claims in the First


Amended Complaint, the district court ruled that all of Plaintiffs fraudulent
concealment and negligent misrepresentation claims were barred by the economic
loss rule, also known as the independent injury rule. [ROA.1122-1123] That was
error for the following three reasons.
First, Plaintiffs fraudulent concealment and negligent misrepresentation
claims fell within the well-recognized exception to the economic loss rule

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discussed in Formosa Plastics Corp., USA v. Presidio Enggs & Contr., Inc., 960
S.W.2d 41 (Tex. 1998). There, the Texas Supreme Court held that the legal duty
not to fraudulently procure a contract is separate and independent from the duties
established by the contract itself and thus the economic loss rule does not apply.
Id. at 46. In the instant case, Plaintiffs alleged that on the basis of Defendants
fraudulent and negligent misrepresentations, Plaintiffs were induced to . . .
purchase tickets, make travel plans and other arrangements to attend Super Bowl
XLV, and make necessary arrangements to take time off from work in order to
attend Super Bowl XLV. [ROA.835 at 7.6-7.7; ROA.840 at 9.5.] Consequently,
because all of the fraud and negligent misrepresentations claims fell under the
category of fraudulent inducement, they were not subject to the economic loss rule.
Second, Plaintiffs tort claims based on concealment of material facts were
premised on duties that are separate and independent from any duties created by
contract. Here, Defendants not only had a duty to perform the ticket contracts, they
also had a duty not to conceal material facts from Plaintiffs. See Cardinal Health
Solutions, Inc. v. Valley Baptist Med. Ctr., No. CIV. A. 1:07-CV-111, 2009 WL
150942, at *19 (S.D. Tex. Jan. 21, 2009) (fraud claim for knowingly
misrepresenting charges in invoices not barred by economic loss rule because
[t]he duty to refrain from knowingly misrepresenting information in the manner
alleged by Defendants is a duty imposed by common law, independent of the duties
the Agreements create.); Eastman Chemical Co. v. Niro, Inc., 80 F.Supp.2d 712,
717 (S.D. Tex. 2000) (even though the plaintiffs claim arose out of the parties
agreement, the defendant had an independent legal duty not to commit the
intentional tort of fraud).
Third, fraud and negligent misrepresentation claims based on concealment or
omission of material facts are not subject to the economic loss rule. See Experian
Info. Solutions, Inc. v. Lexington Allen L.P., No. 4:10-CV-144, 2011 WL

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1627115, at *12 (E.D. Tex. Apr. 7, 2011) report and recommendation adopted, No.
4:10-CV-144, 2011 WL 1637935 (E.D. Tex. Apr. 28, 2011) ([t]he economic loss
rule does not apply to fraud claims, including claims for fraud in the performance
and fraudulent omission.); Regus Management Group, LLC v. International
Business Machine Corp., No. 3:07-CV-1799-B, 2008 WL 1836360, at *6-7 (N.D.
Tex. Apr. 24, 2008) (economic loss rule did not bar claims of fraudulent omissions
after execution of parties agreement); Nazareth Intl, Inc. v. J.C. Penney Corp.,
No. CIV.A. 304CV1265M, 2005 WL 1704793, at *8 (N.D. Tex. July 19, 2005)
(holding negligent misrepresentation claim based in part on failure to correct prior
statement not barred by economic loss rule).
5.

The District Courts Dismissal of Plaintiffs DTPA Claims


Based on Fraud Was Error

The court also erroneously dismissed Plaintiffs other DTPA claims, which
included Plaintiffs DTPA claims based on Defendants fraudulent concealment
[ROA.1127-1128; ROA.844 at 11.5] That ruling was erroneous for the same
reasons stated above as to why the court erred in dismissing (i) the Displaced and
Relocated Plaintiffs fraudulent inducement claims and (ii) all of Plaintiffs
fraudulent concealment and negligent misrepresentation claims.

VII. CONCLUSION
For the foregoing reasons, the rulings below should be reversed, and this
case should be remanded for a new trial consistent with the findings of this Court.

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Dated: August 21, 2015

By: s/ Christopher S. Ayres


Christopher S. Ayres
Texas Bar No. 24036167
R. Jack Ayres, Jr.
Texas Bar No. 01473000
AYRES LAW OFFICE, P.C.
4350 Beltway Drive
Addison, Texas 75001
E-Mail: csayres@ayreslawoffice.com
Telephone: 972-991-2222
Facsimile: 972-386-0091

By: /s/ Michael J. Avenatti


Michael J Avenatti
California Bar Number: 206929
Ahmed Ibrahim
California Bar Number: 238739
EAGAN AVENATTI, LLP
520 Newport Center Drive, Suite 1400
Newport Beach, CA 92660
E-Mail: mavenatti@eaganavenatti.com
aibrahim@eaganavenatti.com
Telephone: 949-706-7000
Facsimile: 949-706-7050

Attorneys for Plaintiffs-Appellants


Attorneys for Plaintiffs-Appellants

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation set forth in the Federal
Rules of Appellate Procedure 29(d) and 32(a)(7)(B) and Fifth Circuit Rule 32. This
brief contains 13,988 words, from the Introduction through the Conclusion, as
determined by the Microsoft Word word-processing program, with 14-point
proportionally spaced type for text and 14-point proportionally spaced type for
footnotes.

By:

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/s/ Michael J. Avenatti


Michael J Avenatti

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CERTIFICATE OF SERVICE
I hereby certify that on August 21, 2015, the foregoing Record Excerpts of
Plaintiff-Appellants was electronically served on the counsel listed below via the
Courts CM/ECF Notice of Activity system at their electronic addresses of record:
Mr. Richard Thaddeus Behrens: thad.behrens@haynesboone.com,
kimberly.dean@haynesboone.com
Mr. George W. Bramblett, Jr.: george.bramblett@haynesboone.com,
denise.stilz@haynesboone.com, sue.hamilton@haynesboone.com
Mr. Farbod Farnia: ffarnia@mccathernlaw.com, receptionist@mccathernlaw.com
Mr. William Feldman, Attorney: william.feldman@haynesboone.com,
michelle.meuhlen@haynesboone.com
Mr. Daniel H. Gold: daniel.gold@haynesboone.com, elaine.hadaway@haynesboone.com
Ms. Anne McGowan Johnson: anne.johnson@haynesboone.com, denise.stilz@haynesboone.com,
glenda.moore@haynesboone.com
Mr. Christopher Scott Ayres: csayres@ayreslawoffice.com, bkemph@ayreslawoffice.com,
rjayres@ayreslawoffice.com
Mr. Michael J. Avenatti: mavenatti@eaganavenatti.com, jarden@eaganavenatti.com,
kmosby@eaganavenatti.com, jregnier@eaganavenatti.com, gmelo@eaganavenatti.com

By:

-50-

/s/ Michael J. Avenatti


Michael J Avenatti