Lead Opinion
Thrеe plaintiffs have sued for themselves and a nationwide class of some ten million owners and lessees of Daimler-Chrysler vehicles, equipped with Gen-3 seatbelt buckles, and sold over the course of a decade. They allege that it is too easy to press the release button on the buckle and unlatch it without intending to do so. They do not contend that this is unavoidable, probable, or even eventual, only that it is possible. Two of the plaintiffs have never experienced anything like what they claim might happen, and the third is not sure whether he has or not, but he has never been injured. They have sued to have the buckles replaced with ones that are harder to unlatch. At least two similar class actions have been brought in other states without success.
The trial court granted class certification. The court of appeals reversed and remanded for further proceedings, holding that “the trial court still has significant pre-certification work to do” to determine which jurisdictions’ laws would govern class members’ claims.
I
Three Nueces County residents, Bill L. Inman, David Castro, and John Wilkins, bought Dodge vehicles manufactured by DaimlerChrysler Corp., equipped with Gen-3 seatbelt buckles — respectively, a new 1997 Dodge Caravan, a new 1995 Dodge Ram 1500, and a used 1999 Dodge Intrepid. Castro and Wilkins testified that they had never experienced any problems with the buckles and had never heard of anyone who had. Wilkins had been in one accident and the seatbelt worked properly. Inman testified that his seatbelt might have released twice when it should not have, but he was “not a hundred percent sure of this because [he] didn’t pay any attention at the time”. The first time, he did not know how he hit the release button, but “all at once” his seatbelt was loose. The second time, he said, he thought he bumped the button while trying to replace the lid on a cooler sitting between the seats of his van. He was not hurt or endangered either time, and he does not know of anyone who was ever harmed because of a Gen-3 buckle.
In June 2000, Inman sued Daimler-Chrysler in the сounty court at law in Nueces County, alleging that the Gen-3 buckles were defective. Castro and Wilkins joined as plaintiffs in January 2002. In depositions, the plaintiffs explained why they decided to sue even though they had never been hurt because of their seatbelts. Inman testified that he had run into his
In their seventh amended petition, the plaintiffs alleged that the Gen-3 buckle is “dangerously subject to accidental release, far more dangerous than other buckle designs”, that it is “subject to release at any time, and especially in the event of a collision”, and that the buckle “design does not minimize the possibility of accidental release”. The plaintiffs do not contend that the buckle will release by itself; it must be pressed. They contend only that it is too easy for the button to be pressed inadvertently, either by the wearer or something else in the vehicle. The plaintiffs allege negligence, negligent misrepresentation, breach of express warranty that the vehicles are safe and meet all safety requirements,
DaimlerChrysler moved for summary judgment on the ground that the plaintiffs’ pleadings failed to state a viable cause of action. The plaintiffs offered evidence of the defect they allege in the Gen-3 buckles. They contended that the buckle design violates a Federal Motor Vehicle Safety Standard requiring that a “[b]uckle release mechanism shall be designed to minimize the possibility of accidental release.”
Plaintiffs’ claims are not based on any hypothetical defect in the Gen-3 buckle that may, or may not, manifest itself in*303 the future. Instead, Plaintiffs’ allege that the sale of Gen-3 buckles breached warranties and consumer remedies because each buckle was sold in violation of federal standards, industry standards, and Defendant’s internal standards and that each Gen-3 buckle has manifested this breach from the moment it was sold until the present.
The trial court certified two classes. One was for:
All United States resident persons (except residents of California or Nevada) who own or lease new vehicles, model year 1993-2002, manufactured and/or sold by Daimler/Chrysler and equipped with Gen-3 seat belt buckles ... [excluding] any person who has an action for damages for personal injury or death or property damage against Defendants.
The other class was identical еxcept for the word “used” in place of “new”. On appeal, DaimlerChrysler argued that the case should be dismissed because the plaintiffs had not sustained any legally cognizable injury and therefore lacked standing to assert their claims. Alternatively, DaimlerChrysler argued that the class should be decertified because the trial plan adopted by the trial court was flawed and incomplete, the plaintiffs were inadequate class representatives, and they had not satisfied the predominance, superiority, and manageability requirements for class certification contained in Rule 42(b)(3) of the Texas Rules of Civil Procedure. Specifically, DaimlerChrysler argued that the trial court would be required to apply the laws of 48 states and adjudicate issues peculiar to individual class members. The court of appeals rejected DaimlerChrysler’s standing argument but agreed that the trial court had not fully examined what law should govern the class claims.
We granted DaimlerChrysler’s petition for review to consider its argument that the plaintiffs lack standing to assert their claims.
II
The parties agree that the plaintiffs cannot succeed on any of their claims without showing they have suffered legally compensable injury. But the plaintiffs argue that they need not show that they can prove the requisite injury until after class certification has been decided and the trial court reaches the merits of their claims.
A person who buys a defective product can sue for economic damages,
But DaimlerChrysler does not argue here that the plaintiffs’ claims cannot succeed (although that is certainly their position). Rather, it argues that whatever the plaintiffs’ causes of action may require, they have not suffered the kind of injury to give them standing to invoke the trial court’s subject-matter jurisdiction. If there is no injury sufficient for jurisdiction, surely there is no injury sufficient for a cause of action. But if the plaintiffs have no standing, the trial court has no more jurisdiction to deny their claims than it does to grant them. Without jurisdiction, the trial court should not render judgment that the plaintiffs take nothing; it should simply dismiss the case.
The requirement in this State that a plaintiff have standing to assert a claim derives from the Texas Constitution’s separation of powers among the departments of government, which denies the judiciary authority to decide issues in the abstract, and from the Open Courts provision, which provides court access only to a “person for an injury done him”.
We have drawn this distinction in a recent case, M.D. Anderson Cancer Center v. Novak.
Even if Novak was an intended victim of a “completed” mail fraud for purposes of governmental prosecution, he was not actually defrauded. His lack of any actual or threatened injury prevents him from being “personally aggrieved” such that he has any personal stake in the litigation. Therefore, Novak lacks standing as an individual....25
It was irrelevant whether M.D. Anderson’s fund-raising letter was false, or whether recipients might have been deceived into giving when they would not otherwise have done so. The point was that Novak was not himself deceived or injured, and therefore he did not have standing individually to assert fraud. Accordingly, we dismissed the entire action for want of jurisdiction.
M.D. Anderson is different from the present case in that once Novak decided the letter was false, he could never be deceived and therefore could never be injured, other than out of concern for others. In this case, the plaintiffs could accidentally unlatch their Gen-3 seatbelt buckles and subject themselves to harm, though that has never happened to two of them and the third is unsure. M.D. Anderson is important because it shows that standing, and the concrete injury it requires, is quite distinct from the merits of a claim and the injury required to prove it.
Two decisions from the Fifth Circuit illustrate this point. In Rivera v. Wyeth-Ayerst Laboratories, Rivera used Duract, a prescription painkiller manufactured by Wyeth.
Contrast Rivera with Cole v. General Motors Corp.
GM sent a voluntary recall notice to all DeVille record owners and lessees explaining that GM
has decided that a defect which relates to motor vehicle safety exists and may manifest itself in your 1998 or 1999 model year Cadillac DeVille. [GM] ha[s] learned of a condition that can cause the side impact air bags in your car to deploy unexpectedly, without a crash, as you start your car or during normal driving.
GM indicated that it had received 306 reports of inadvertent deployment out of approximately 224,000 affected vehicles.35
Three plaintiffs sued for economic damages because repairs to the vehicles were unreasonably delayed. GM argued that they lacked standing, based on Rivera. The court disagreed.
An important difference between these two cases is that the Cole plaintiffs alleged a defect that would cause GM’s side-impact air bags to deploy by itself unexpectedly during normal operation, something GM conceded in its voluntary recall, while the Rivera plaintiffs alleged a defect in medication which had caused injury only when taken by someone contrary to Wyeth’s instructions. In Cole, injury was a matter of time; in Rivera, it might never happen. The air bags in Cole’s vehicle might deploy improperly regardless of what she did, just as they might in the other vehicles in which they were installed. Taking Duract had not hurt Rivera, and there was almost no chance that the defect she alleged in the drug ever would injure her, given that she was fully aware of the restrictions on its use.
Any possibility of injury to the plaintiffs in the present case is even more remote than it was in Rivera. There, Wyeth received twelve complaints over a year before it voluntarily withdrew the drug from the market. Here, according to the plaintiffs themselves, DaimlerChrysler received only fifty complaints from ten million vehicle owners and lessees over ten years — five per year, one for every 200,000 owners and lessees. By comparison, in Cole, GM received 306 reports in two years, one for every 732 owners and lessees. In any event, evidence of such complaints cannot prove defect.
Both of those cases show that when a claim of injury is extremely remote, the jurisdictional inquiry cannot be laid aside in an expectation that the claimant will also lose on the merits. A court that decides a claim over which it lacks jurisdiction violates the constitutional limitations on its authority, even if the claim is denied. As the United States Supreme Court has warned, the denial of a claim on the merits is not an alternative to dismissal for want of jurisdiction merely because the ultimate result is the same because the assertion of jurisdiction “carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers.”
The dissent charges that our decision “suggests a visceral distaste of class actions”. We disagree. We simply think that the rights of ten million vehicle owners and lessees across the United States should not be adjudicated in an action brought by three plaintiffs who cannot show more than the merest possibility of injury to themselves. To hold that Inman, Castro, and Wilkins have standing would drain virtually all meaning from the requirements that a plaintiff must be “personally aggrieved” and that his injury must be “concrete” and “actual or imminent”.
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If the named plaintiffs in a putative class action do not have standing to assert their own individual claims, the entire actions must be dismissed.
Notes
. Quacchia v. DaimlerChrysler Corp.,
.
. Id. at 885.
. See Tex Bus. & Com.Code § 2.313.
. Id. § 2.314.
. Id. § 2.315.
.Id. §§ 17.41-.63.
.49 C.F.R. § 571.209, S4.1(e).
.
. Id.
. See Intratex Gas Co. v. Beeson,
.See Texas Ass'n of Bus. v. Tex. Air Control Bd.,
. See id.
. E.g. Plas-Tex, Inc. v. U.S. Steel Corp.,
.
. See, e.g., Martinez v. Second Injury Fund of Tex.,
. Texas Ass’n of Bus.,
. Texas Ass’n of Bus.,
. Nootsie, Ltd. v. Williamson County Appraisal Dist.,
. Brown v. Todd,
. Texas Ass'n of Bus.,
.
.Id. at 706.
. Id.
. Id. at 707-708 (citations and emphasis omitted).
. Id. at 711.
.
. Id. at 316-317.
. Id. at 317.
. Id.
. Id. at 317, 319-320.
. Id. at 319-320.
. Id. at 321-322.
.
. Mat 718-719.
. Id. at 722-723.
. Nissan Motor Co. v. Armstrong,
. Austin Nursing Ctr., Inc. v. Lovato,
. Texas Ass'n of Bus.,
. Ante at 313.
.
. Steel Co. v. Citizens for a Better Env’t,
. M.D. Anderson Cancer Ctr. v. Novak,
Dissenting Opinion
joined by Justice O’NEILL, Justice GREEN, and Justice JOHNSON, dissenting.
In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of [the procedural rule governing class actions] are met.
Eisen v. Carlisle & Jacquelin,
This case comes to us on appeal of a trial court’s order certifying a nationwide
I
Standing
The Court never reaches the choice-of-law issue, instead dismissing the entire action based on its conclusion that the plaintiffs lack standing. But standing “focuses on the party seeking to get his complaint before a ... court and not on the issues he wishes to have adjudicated.” Simon v. E. Ky. Welfare Rights Org.,
Putative class representatives, like any other plaintiffs, must demonstrate standing to sue. M.D. Anderson Cancer Ctr. v. Novak,
As the Court notes, in most states (including Texas), the law on warranty claims based on unmanifested defects is unclear.
The key distinction between this case and a “no-injury” product liability suit is that the Coghlans’ claims are rooted in basic contract law rather than the law of product liability: the Coghlans assert they were promised one thing but were given a different, less valuable thing. The core allegation in a no-injury product liability class action is essentially the same as in a traditional products liability case: the defendant produced or sold a defective product and/or failed to warn of the product’s dangers. The wrongful act in a no-injury products suit is thus the placing of a dangerous/defective product in the stream of commerce. In contrast, the wrongful act alleged by the Coghlans is Wellcraft’s failure to uphold its end of their bargain and to deliver what was promised. The striking feature of a typical no-injury class is that the plaintiffs have either not yet experienced a malfunction because of the alleged defect or have experienced a malfunction but not been harmed by it. Therefore, the plaintiffs in a no-injury products liability case have not suffered any physical harm or out-of-pocket economic loss. Here, the damages sought by the Coghlans are not rooted in the alleged defeсt of the product as such, but in the fact that they did not receive the benefit of their bargain.
Coghlan v. Wellcraft Marine Corp.,
The Fifth Circuit also noted that “the determination that there has been no injury in [cases like this] must be an evidentia-ry one.” Id. at 455 (holding that district court acted prematurely by dismissing case on the pleadings). Most courts recognize that the failure to state a cause of action is best addressed outside the context of class certification. Indeed, one court has noted that “the substantive question of whether the implied warranty of merchantability protects against an unanticipated diminution in secondary market values” is better reserved for “another, more appropriate time — i.e., outside the context of rulings on Rule 23 motions for class certification.” Carlson v. Gen. Motors Corp.,
The Court notes — accurately—that two similar class actions have been brought in other states “without success.”
This case turns on a relatively simple question, at least as to damages — Is a car with defective seatbelt buckles worth less than a car with operational seatbelt buckles? Common sense indicates that it is, but, at this stage of the case, we need not decide that issue. Rather, we*311 only determine that Collins is entitled to go forward with her case.
Collins v. DaimlerChrysler Corp.,
The Court relies in part on Rivera v. Wyeth-Ayerst Labs.,
In Rivera, purchasers of a prescription drug sought recovery of economic damages after learning that the manufacturer had withdrawn the drug from the market because the drug had caused liver damage to other patients. We concluded that the Rivera plaintiffs lacked standing because they described their claim as emanating from the drug manufacturer’s failure to warn and sale of a defective product, but the plaintiffs did not claim that the drug had caused them any physical or emotional injury. Although the plaintiffs quantified their injury in terms of economic damages, we concluded that merely asking for economic damages failed to establish an injury in fact because the plaintiffs never defined the source of their economic injury. The plaintiffs could not assert benefit-of-the-bargain damages because they had no contract with the manufacturer. Due to these factors, we determined that the injuries that the plaintiffs alleged were suffered not by them, but rather, by the non-party plaintiffs suffering liver damage. And we referred to the Rivera plaintiffs’ claim as a “no-injury products liability” suit.
Rivera is distinguishable from the instant case. In Rivera, the plaintiffs sought damages for potential physical injuries; because they never suffered actual physical injuries, they could only allege injuries that were suffered by non-parties. The Rivera plaintiffs did not assert economic harm emanating from anything other than potential physical harm. Here, although plaintiffs do not assert physical injuries (either their own or those of other persons), they do assert their own actual economic injuries. Plaintiffs allege that each plaintiff suffered economic injury at the moment she purchased a DeVille because each DeVille was defective. Plaintiffs further allege that each plaintiff suffered economic injury arising from GM’s unreasonable delay in replacing their defective [airbags]. Plaintiffs seek recovery for their actual economic harm (e.g., overpayment, loss in value, or loss of usefulness) emanating from the loss of their benefit of the bargain. Notably in this case, plaintiffs may bring claims under a contract theory based on the express and implied warranties they allege. Whether recovery for such a claim is permitted under governing law is a separate question; it is sufficient for standing purposes that the plaintiffs seek recovery for an economic harm that they allege they have suffered. See Parker v. District of Columbia,478 F.3d 370 , 377(D.C.Cir.2007) (“The Su*312 preme Court has made clear that when considering whether a plaintiff has Article III standing, a federal court must assume arguendo the merits of his or her legal claim.”) (citing Warth v. Seldin,422 U.S. 490 , 501-02,95 S.Ct. 2197 ,45 L.Ed.2d 343 (1975)). We therefore conclude that plaintiffs have established a concrete injury in fact and have standing to pursue this class action.
Id. at 722-23 (emphasis added) (citations omitted).
This Court’s attempt to distinguish Cole reveals the extent to which it has misread that case. In its discussion of Cole and Rivera, the Court asserts that:
An important difference between these two cases is that the Cole plaintiffs alleged a dеfect that would cause GM’s side-impact air bags to deploy by itself unexpectedly during normal operation, something GM conceded in its voluntary recall, while the Rivera plaintiffs alleged a defect in medication which had caused injury only when taken by someone contrary to Wyeth’s instructions. In Cole, injury was a matter of time; in Rivera, it might never happen. The air bags in Cole’s vehicle might deploy improperly regardless of what she did, just as they might in the other vehicles in which they were installed. Taking Duract had not hurt Rivera, and there was almost no chance that the defect she alleged in the drug ever would injure her, given that she was fully aware of the restrictions on its use.
Any possibility of injury to the plaintiffs in the present case is even more remote than it was in Rivera.
Similarly, the Court’s analogy to M.D. Anderson misses the mark. In that case, we held that a plaintiff who was never defrauded lacked standing to sue on behalf of those who were. See M.D. Anderson Cancer Ctr. v. Novak,
The Court correctly notes that standing is a prerequisite to subject matter jurisdiction.
Moreover, crafting new standing rules creates a host of problems, not the least of which involves collateral attacks on judgmеnts. Without standing, a court lacks subject matter jurisdiction to hear the case. Id. at 553-54; Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
We have recognized that “[i]f ... no class member can state a viable claim, dispositive issues should be resolvеd by the trial court before certification is considered.” State Farm Mut. Auto. Ins. Co. v. Lopez,
We require that trial courts, in certifying or denying certification, comply with the detailed requirements of Rule 42. That rule requires, among other things, that the court delineate the elements of each claim or defense asserted in the pleadings; any issues of law or fact common to the class members; any issues affecting only individual class members; those issues that will be the object of most of the efforts of the litigants and the court; other available methods of adjudication; why common issues do or do not predominate; why a class action is or is not superi- or; and how class and individual claims will be tried in a manageable, time efficient manner. Tex.R. Civ. P. 42(c)(1)(D). Moreover, trial courts must conduct a “rigоrous analysis” before ruling on class certification to determine “whether all prerequisites to class certification have been met.” Bernal,
But we have never before held that if class representatives cannot prove their case at the class-certification stage, the trial court lacks jurisdiction. While “[t]he court may require plaintiff to supplement the pleadings with outside material in order to determine whether to certify [a class action] .... this does not mean that the litigant bringing the action as a representative must establish the merits of the case before a preliminary determination of the class-action question can be made.” 7B WRIght, Millee and Kane, FedeRal Practice and Procedure § 1798. Indeed “although a preliminary evidentiary hearing may be utilized [prior to class certification], that hearing is directed toward examining the underlying facts to determine
We have followed the United States Supreme Court’s directive in Eisen, holding that “[djeciding the merits of the suit in order to determine the scope of the class or its maintainability as a class action is not appropriate.” Intratex Gas Co. v. Beeson,
The determination whether there is a proper class does not depend on the existence of a cause of actiоn. A suit may be a proper class action, conforming to Rule 23, and still be dismissed for failure to state a cause of action. Rule 23 delineates the scope of inquiry to be exercised by a district judge in passing on a class action motion. Nothing in that Rule indicates the necessity or the propriety of an inquiry into the merits. Indeed, there is absolutely no support in the history of Rule 23 or legal precedent for turning a motion under Rule 23 into a Rule 12 motion to dismiss or a Rule 56 motion for summary judgment by allowing the district judge to evaluate the possible merit of the plaintiffs claims at this stage of the proceedings. Failure to state a cause of action is entirely distinct from failure to state a class action.
Miller v. Mackey Int’l, Inc.,
II
Choice of Law
A threshold question in any appellate review of an order certifying a multistate class action must be an analysis of whose law governs the class claims. See Compaq,
We have recognized that “[i]n the context of a nationwide class action, the determination of the applicable substantive law is of paramount importance. If the court does not know which states’ laws must be applied, it cannot determine whether variations in the applicable laws would defeat predominance in a [Rule 423(b)(3) class action_” Id. at 672. Moreover, “[i]f the laws of fifty-one jurisdictions apply in [a] class action, the variations in the laws of the states and District of Columbia ‘may swamp any common issues and defeat predominance.’ ” Id. (quoting Castano v. Am. Tobacco Co.,
It is settled that in reviewing a class certification order, we must evaluate “ ‘the claims, defenses, relevant facts, and applicable substantive law.’ ” Bernal,
Ill
Conclusion
Propоsals to modify class action procedure present serious questions of policy. Standing is different. It implicates a court’s fundamental power to adjudicate a claim, rather than an assessment of whether the claim will ultimately succeed. Today, the Court conducts an extraordinary and unworkable reading of both pleading and precedent to conclude that the plaintiffs “lack[s] standing because [their] claim of injury is too slight for a court to afford redress.”
. Texas Rule of Civil Procedure 42 is patterned after Federal Rule of Civil Procedure 23; consequently, federal decisions and authorities interpreting current federal class action requirements are persuasive authority. Sw. Ref. Co., Inc. v. Bernal,
. In fact, the case is nearly natiоnwide, encompassing forty-eight states. California and Nevada residents were excluded from the proposed class definition.
.The motion nowhere asserts that the trial court lacked jurisdiction based on standing and seeks not dismissal, but a take-nothing judgment. Rather, DaimlerChrysler moved for summary judgment on the pleadings, alleging that the plaintiffs sustained no damages, an essential element of each claim, and that DaimlerChrysler was therefore entitled to judgment on the merits. DaimlerChrysler later supplemented its motion with excerpts from the class representatives’ depositions. The trial court denied the motion.
. That court noted:
In Walsh v. Ford Motor Co.,106 F.R.D. 378 (D.D.C.1985), for example, the trial court certified an “all owners” class of plaintiffs, notwithstanding the defendant’s protestation that many of the class members’ cars had "performed as warranted and therefore [were] merchantable.” Id. at 396.
*310 The court specifically noted, however, that it was certifying the class solely on the basis of the “commonality” of the prospective members’ interests, and that it was not determining separately whether the plаintiffs had stated a "viable” cause of action for breach of the implied warranty of merchantability. Id. at 397. Essentially the same can be said for each of the remaining cases on which the plaintiffs principally rely. See In re Cadillac V8-6-4 Class Action,93 N.J. 412 ,461 A.2d 736 , 743 (1983) (approving certification of "all owners" class where plaintiffs charged breach of implied warranty of merchantability on account of "common defect”; court holds that allegation of "loss-of-bargain” damages is sufficient to state cause of action, but relies on cases where such loss occurred as result of manifest defects in plaintiffs’ cars); Landesman v. General Motors Corp.,356 N.E.2d 105 , 107-08,42 Ill.App.3d 363 ,1 Ill.Dec. 105 , 107-08 (1st Dist.1976) (court certified class of plaintiffs claiming damages partly attributable to diminished resale value, but specifically declined to decide question of whether allegations supported viable cause of action); Anthony v. General Motors Corp.,33 Cal.App.3d 699 ,109 Cal.Rptr. 254 (2d Dist.1973) (“all owners” class certification; no discussion of viability of underlying cause of action).
Carlson,
. Ultimately, the court concluded that the district court abused its discretion in certifying the class, as the plaintiffs "failed to adequately address, much less 'extеnsively analyze,’ the variations in state law ... and the obstacles they present to predominance.” Cole,
. It is far from clear that injury to the Cole plaintiffs was merely "a matter of time.” In that case, GM indicated that "it had received 306 reports of inadvertent deployment out of approximately 224,000 affected vehicles.” Cole,
. The court of appeals recognized this, noting that " '[r]isk of injury’ [was] an inaccurate characterization” of the alleged harm.
. Brown,
. The Court asserts that the plaintiffs “do not contend that the Gen-3 buckles made their vehicles worth less than they paid for them.” While the plaintiffs may not use these exact words, they do allege concrete economic harm stemming from breach of express and implied warrantiеs. See Tex. Bus. & Comm.Code § 2.714(b); Nobility Homes of Tex., Inc. v. Shivers,
. The Court states, in response to the argument that it is incorrectly considering the merits in determining standing, that “[w]e do not render judgment that the plaintiffs take nothing, as we would if their claims failed on the merits; we dismiss the case for want of jurisdiction.”
. Indeed, standing is typically challenged in a plea to the jurisdiction, which is a "dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit.” Bland,
. The Advisory Committee on the (federal) Civil Rules "also considered, but did not propose for formal reviеw, a new provision of Rule 23(b)(3) that would have required a preliminary hearing on the merits prior to certification.” Deborah R. Hensler et al„ Class Action Dilemmas: Pursuing Public Goals for Private Gain 500 n. 2 (2000). That provision “encountered opposition from both plaintiff and defense bars.” Id. As one commentator has noted:
*316 Defendants were tom between the attraction of drawing trial judges' attention to the merits of proposed class actions and the possibility that such an early merits determination would simply provide more opportunity for adversarial procedure at a time when the record had not yet been sufficiently developed to support a sound judicial assessment. Defendants' disagreement among themselves on the issue of a preliminary merits determination subsequently led the Advisory Committee to abandon this proposal.
Id. at 44 n. 103.
. The class certification order stated that "[a] class certification order need not address choice of law.... In the absence of a proper choice of law motion, the Court will continue to presume, as it is entitled to presume, that the law of other jurisdictions is the same as Texas law.”