author: JAMES L. DENNIS, Circuit Judge:

text:
    Roxanne DAUGHERTY, Plaintiff-Appellant v. CONVERGENT OUTSOURCING, INCORPORATED; LVNV Funding, L.L.C., Defendants-Appellees
    No. 15-20392
    United States Court of Appeals, Fifth Circuit.
    Filed September 8, 2016

      David Neal McDevitt, Esq., Russell S. Thompson, IV, Thompson Consumer Law Group, P.L.L.C., Mesa, AZ, for Plaintiff-Appellant.
    Robbie LuAnn Malone, Esq.,' Michael Lamar Jones, Henry & Jones, L.L.P., Dallas, TX, for Defendants-Appellees.
    Brian Melendez, Dykema Gossett, P.L.L.C., Minneapolis, MN, for Amicus Curiae ACA International.
    Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin, L.L.C., Chicago, IL, for Amicus Curiae Marjorie Carter.
    Before DENNIS, ELROD, and GRAVES, Circuit Judges.
   JAMES L. DENNIS, Circuit Judge:

The issue presented by -this appeal is whether a collection letter for a time-barred debt containing a discounted “settlement” offer — but silent as to the time bar and without any mention of litigation— could mislead an unsophisticated consumer to believe that the debt is enforceable in court, and therefore violate the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p. After receiving such a letter, the plaintiff credit card debtor sued the defendant debt collectors pursuant to the FDCPA. The district court dismissed the complaint, holding that efforts to collect time-barred debts without threatening or filing suit do not violate the FDCPA. We reverse. While it is not automatically unlawful for a debt collector to seek payment of a time-barred debt, a collection letter violates the FDCPA when its statements could mislead an unsophisticated consumer to believe that her time-barred debt is legally enforceable, regardless of whether litigation is threatened.

I.

According to her complaint, Plaintiff-Appellant Roxanne Daugherty accumulated $12,824.24 in credit card debt. After Daugherty defaulted on the debt, Defendant-Appellee • LVNV Funding, L.L.C. (“LVNV”) purchased the debt from the creditor. LVNV then hired Defendant-Ap-pellee Convergent Outsourcing, Inc. (“Convergent”) to collect the debt on LVNV’s behalf. With an interest rate of 8%, the debt had increased to $32,405.91 over the course of many years. Convergent subsequently sent Daugherty a letter, dated January 23, 2014, proposing that Daugherty make a payment of $3,240.59 to “settle” a “past due balance of $32,405.91.” The parties agree that the statute of limitations on collection of the debt had expired.

Convergent’s letter to Daugherty was titled “Settlement Offer” and stated as follows:

Dear Roxanne L. Daugherty:
This notice is being sent to you by a collection agency. The records of LVNV Funding LLC show that your account has a past due balance of $32,405.91. Our client has advised us that they are willing to settle your account for 10% of your total balance due to settle your past balance. The full settlement must be received in our office by an agreed upon date. If you are interested in taking advantage of this offer, call our office within 60 days of this letter. Your settlement amount would be $3,240.59 to clear this account in full.
Even if you are unable to take advantage of this offer, please contact our office to see what terms can be worked out on your account. We are not required to make this offer to you in the future.
Sincerely,
Convergent Outsourcing, Inc.
THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. THIS COMMUNICATION IS FROM A DEBT COLLECTOR.
NOTICE: PLEASE SEE REVERSE SIDE FOR IMPORTANT CONSUMER INFORMATION.

The letter requested that Daugherty respond by February 27, 2014, and offered three payment “opportunit[ies]”: (1) a “Lump Sum Settlement Offer of 10%” requiring a single payment of $3,240.59; (2) a “Settlement Offer of 25% & Pay Over 3 Months” requiring three payments of $2,700.49; or (3) “Spread Your Payments Over 12 Months” requiring monthly payments of $2,700.49 over the course of a year.

On November 18, 2014, Daugherty filed this suit against Convergent and LVNV, alleging violations of the FDCPA. According to the complaint, Convergent and LVNV — both “debt collectors” as defined by the FDCPA, 15 U.S.C. § 1692a(6)— violated 15 U.S.C. § 1692e by using false, deceptive, or misleading representations or means in connection with the collection of Daugherty’s debt and violated 15 U.S.C. § 1692f by using unfair or unconscionable means' to attempt to collect that debt. Daugherty faulted Convergent’s collection letter for failing to disclose that the debt was not judicially enforceable, that settling the debt through a 10% payment would trigger tax liability for Daugherty, and that a partial payment would revive the entire debt. She sought statutory damages in the amount of $1,000 and attorneys’ fees and costs.

Convergent and LVNV moved to dismiss Daugherty’s suit for failure to state a claim upon which relief could be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion, relying in part on Huertas v. Galaxy Asset Management, 641 F.3d 28 (3d Cir. 2011), and Freyermuth v. Credit Bureau Services, Inc., 248 F.3d 767 (8th Cir. 2001), to hold that the FDCPA permits a debt collector to seek voluntary repayment of a time-barred debt so long as the debt collector does not initiate or threaten legal action in connection with its debt collection efforts. Daugherty v. Convergent Outsourcing, Inc., No. 4:14-CV-3306, 2015 WL 3823654, at *3-7 (S.D. Tex. June 18, 2015). Daugherty appealed.

II.

“This court reviews a district court’s grant of a motion to dismiss de novo.” Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013). The plaintiffs well-pleaded facts are to be accepted as true and viewed in the light most favorable to her. Id. A claim is properly dismissed when the facts alleged do not state a claim that is plausible on its face. Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Gearlds v. Entergy Servs., Inc., 709 F.3d 448, 450 (5th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

III.

The FDCPA prohibits the use of “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. Section 1692e furnishes a nonexclusive list of prohibited practices, including falsely representing the character, amount, or legal status of any debt, § 1692e(2)(A), and threatening to take any action that cannot legally be taken, § 1692e(5). Section 1692f prohibits debt collectors from using “unfair or unconscionable means to collect or attempt to collect any debt.” “Congress ... clearly intended the FDCPA to have a broad remedial scope.” Serna v. Law Office of Joseph Onwuteaka, P.C., 732 F.3d 440, 445 (5th Cir. 2013) (emphasis omitted) (quoting Hamilton v. United Healthcare of La., Inc., 310 F.3d 385, 392 (5th Cir. 2002)). The FDCPA should therefore be construed broadly and in favor of the consumer. Id. at 445 n.ll.

When evaluating whether a collection letter violates § 1692e or § 1692f, a court must view the letter from the perspective of an “unsophisticated or least sophisticated consumer.” McMurray v. ProCollect, Inc., 687 F.3d 665, 669 (5th Cir. 2012) (quoting Goswami v. Am. Collections Enter., 377 F.3d 488, 495 (5th Cir. 2004)). The court must “assume that the plaintiff-debtor is neither shrewd nor experienced in dealing with creditors.” Goswami, 377 F.3d at 495. At the same time, however, the unsophisticated consumer is not one “tied to the ‘very last rung on the [intelligence or] sophistication ladder.’ ” Id. (alteration in original) (quoting Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir. 1997)).

IV.

There is an apparent conflict in the circuits as to whether a collection letter offering “settlement” of a time-barred debt can violate the FDCPA if the debt collector does not disclose the debt’s unenforce-ability or expressly threaten litigation. The Third and Eighth Circuits have stated that “[i]n the absence of a threat of litigation or actual litigation, no violation of the FDCPA has occurred when a debt collector attempts to collect on a potentially time-barred debt that is otherwise valid.” Huertas, 641 F.3d at 33 (quoting Freyermuth, 248 F.3d at 771). On the other hand, the Sixth and Seventh Circuits have held that collection letters offering to settle time-barred debts without disclosing the status of the debt can be misleading and therefore .violate the FDCPA even if they do not expressly threaten litigation. See Buchanan v. Northland Grp., Inc., 776 F.3d 393, 397 (6th Cir. 2015); McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1020 (7th Cir. 2014). We have not previously taken a position on this issue, but we are persuaded by McMahon and Buchanan that a collection letter that is silent as to litigation, but which offers to “settle” a time-barred debt without acknowledging that such debt is judicially unenforceable, can be sufficiently deceptive or misleading to violate the FDCPA.

At the outset, as the court in McMahon concluded, “[wjhether a [collection] letter is confusing is a question of fact” and a “[dismissal is appropriate only when it is apparent from a reading of the letter that not even a significant fraction of the population would be misled by it.” 744 F.3d at 1020 (internal quotation marks omitted). In McMahon, the debt collectors in the consolidated cases had sent collection letters listing outstanding amounts due but failing to mention that the statute of limitations periods on the debts had already expired. Id. at 1013-14. The collection letter in each case offered to “settle” the debt at a substantial discount, provided the debtor acted within a prescribed period of time. Id. The Seventh Circuit held that each letter could mislead an unsophisticated consumer into believing the debt was judicially enforceable and that each plaintiffs FDCPA claim should therefore survive a motion to dismiss. Id. at 1022.

While the McMahon court noted that efforts to collect on a time-barred debt are not “automatically improper,” it concluded that a debt collector violates the FDCPA when it “uses language in its [collection] letter that would mislead an unsophisticated consumer into believing that the debt is legally enforceable.” Id. at 1020. The court reasoned that this proposition “is straightforward under the statute” as the FDCPA specifically prohibits “the false representation of the character or legal status of any debt.” Id. (citing § 1692e(2)(A)). The court also found the offers to “settle” misleading because “a gullible consumer who made a partial payment would inadvertently have reset the limitations period and made herself vulnerable to a suit on the full amount.” Id. at 1021. Thus, the court found the settlement offers “only reinforced the misleading impression that the debt was legally enforceable.” Id. The court further noted that the Federal Trade Commission and the Consumer Financial Protection Bureau have found that “most consumers do not understand their legal rights with respect to time-barred debt,” id. (citing Fed. TRADE Comm’n, Repairing a Broken System: Protecting Consumers in Debt Collection Litigation and Arbitration 26-27 (2010)), and that these and other agencies have argued in other cases that a debt collector collecting on a time-barred debt “must inform the consumer that (1) the collector cannot sue to collect the debt and (2) providing a partial payment would revive the collector’s ability to sue to collect the balance[,]” id. at 1015. For these reasons, the McMahon court concluded that the plaintiff in each case had stated an FDCPA claim upon which relief could be granted. Id. at 1022.

In Buchanan, which involved a similar collection letter offering to settle a time-barred debt without disclosing its unen-forceability, a panel majority of the Sixth Circuit arrived at the same conclusion. 776 F.3d at 400. The Buchanan court held, in part:

When a [collection] letter creates confusion about a creditor’s right to sue, that is illegal. The [FDCPA] singles out as unlawful the “false representation of ... the character, amount, or legal status of any debt.” “Whether a debt is legally enforceable is a central fact about the character and legal status of that debt.” A misrepresentation about the limitations period amounts to a “straightforward” violation of § 1692e(2)(A).

Id. at 398-99 (alteration in original) (citations omitted). The court also noted that an unsophisticated debtor who could not afford the settlement might assume from the letter that at least a partial payment would be advisable, not knowing that under the controlling state law a partial payment would restart the statute-of-limitations clock on the principal debt. Id. at 399. The court therefore concluded that “[w]ith-out disclosure, a well-meaning debtor could inadvertently dig herself into an even • deeper hole.” Id. (citing Debt Collection (Regulation F), 78 Fed. Reg. 67,876 (Nov. 12, 2018) (“[C]onsumers may believe that when they make a partial payment on a time-barred debt they have only obligated themselves in the amount of the partial payment but in many circumstances that is not true.”)).

Freyermuth and Huertas involved collection letters demanding payment on time-barred debt but lacking any disclosure that the applicable limitations periods had expired. In Freyermuth, the Eighth Circuit held that an attempt to collect on a time-barred debt is permissible under the FDCPA because “a statute of limitations does not eliminate the debt; it merely limits the judicial remedies available.” 248 F.3d at 771. The Third Circuit followed suit, noting that “it is appropriate for a debt collector to request voluntary repayment of a time-barred debt.” Huertas, 641 F.3d at 33. In each case, the court contrasted the . facts before it with cases wherein collection letters contained threats to sue, and concluded that the absence of such threats meant that the letters before them did not violate the FDCPA. See id. at 32-33; Freyermuth, 248 F.3d at 771.

The Sixth and Seventh Circuits offer differing perspectives on the extent to which their opinions conflict with Freyer-muth and Huertas. The Sixth Circuit asserted common ground with the Third and Eighth Circuits, inasmuch as all three courts found “an attempt to collect a time-barred debt is not a thinly veiled threat to sue.” Buchanan, 776 F.3d at 399 (citing Huertas, 641 F.3d at 33; Freyermuth, 248 F.3d at 771). The Sixth Circuit reasoned that, because the letters before the Third and Eighth Circuits did not offer to “settle” or invite a partial payment, the Sixth Circuit’s refusal to dismiss the plaintiffs claim based on a very different collection letter did not put it at odds with the two fellow circuits. Id. The Seventh Circuit, however, concluded that the FDCPA “cannot bear the reading that” the Huertas and Freyermuth courts have given it: “The plain language of the FDCPA prohibits not only threatening to take actions that the collector cannot take, but also the use of any false, deceptive, or misleading representation, including those about the character or legal status of any debt.” McMahon, 744 F.3d at 1020-21. The Seventh Circuit specifically said its “opinion create[d] a conflict in the circuits.” Id. at 1020 n.l.

We agree with the Seventh Circuit’s interpretation of the FDCPA in McMahon, and with the Sixth Circuit’s opinion in Buchanan insofar as it is consistent with McMahon. Accordingly, we agree that a collection letter seeking payment on a time-barred debt (without disclosing its unenforceability) but offering a “settlement” and inviting partial payment (without disclosing the possible pitfalls) could constitute a violation of the FDCPA. Accepting as true the well-pleaded facts alleged by Daugherty, and viewing these facts in the light most favorable to her, we conclude that Daugherty’s claim is facially plausible.

For these reasons, we REVERSE the district court’s grant of Defendants’ motion to dismiss and REMAND for further proceedings consistent with this opinion.

      . Daugherty does not appeal from the rejection of her tax-consequences claim.

      . We refer to both as “unsophisticated” consumers for ease of reference. See Peter v. G.C. Servs. L.P., 310 F.3d 344, 349 n.1 (5th Cir. 2002) (opting not to decide which of the two standards governs because "the difference between the standards is de minimis at most”).

      . LVNV points to our decision in Castro v. Collecto, Inc., 634 F.3d 779 (5th Cir. 2011), for support, but that case is inapposite. There, we parenthetically quoted the Eighth Circuit’s statement that, "[I]n the absence of a threat of litigation or actual litigation, no violation of the FDCPA has occurred when a debt collector attempts to collect on a potentially time-barred debt that is otherwise valid.” Id. at 783 (quoting Preyermuth, 248 F.3d at 771). The Castro panel, however, cited the Eighth Circuit solely for the proposition that "threatening to sue on time-barred debt may well constitute a violation of the FDCPA.” Id. The question of whether an attempt to collect' a time-barred debt can violate the FDCPA even without a threat of litigation simply was not before us at that time.

      . We note that two district courts in this circuit have already embraced the approach we announce today. See Langley v. Northstar Location Servs., No. H-16-1351, 2016 WL 4059355 (S.D. Tex. July 28, 2016); Carter v. First Nat’l Collection Bureau, Inc., 135 F.Supp.3d 565 (S.D. Tex. 2015).

      . Appellees argue that partial payment by Daugherty would not revive her debt under Texas law. However, whether Texas law governs the revival or reset of the statute of limitations pertinent to the particular debt at issue in this case appears to depend on facts outside of the pleadings and is therefore inappropriate for consideration under Rule 12(b)(6). In any event, we decline to reach this issue as it is unnecessary to our resolution of this appeal.


source: Caselaw Access Project

author: GREGG COSTA, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Jose Alvaro RIVAS, Defendant-Appellant
    No. 15-41109
    United States Court of Appeals, Fifth Circuit.
    September 9, 2016
    Lauretta Drake Bahry, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Scott Andrew Martin, Assistant Federal Public Defender, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendanb-Appel-lant.
    Before KING, SMITH, and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

Jose Alvaro Rivas appeals his 41-month sentence for illegal reentry following deportation. He argues that the district court erred in imposing a 16-level sentencing enhancement based on its finding that an Ohio conviction for attempted unlawful sexual conduct with a minor constitutes a crime of violence.

The Ohio conviction involved Rivas soliciting sex online from a person whom he thought was a 14-year-old girl named “Molly.” It wasn’t until Rivas arrived at the hotel where he planned to meet “Molly” for sex that he learned she was not a minor but was, instead, an undercover detective working an internet sting operation.

Rivas relied on the undercover nature of the operation to challenge the “crime of violence” enhancement at his sentencing hearing. He argued that his Ohio conviction does not qualify as “sexual abuse of a minor” (one of the enumerated “crimes of violence” under section 2L1.2 of the Guidelines ) because there was no minor involved. After the government pointed out that Rivas had been convicted of an attempt to engage in unlawful sexual conduct, the district court overruled the objection.

Rivas makes a different argument on appeal. He contends that the Ohio statute under which he was convicted does not comport with the generic, contemporary meaning of “sexual abuse of a minor” because it requires only a reckless state of mind as to the minor’s age, not actual knowledge. Here is the statutory language:

No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.

Ohio Rev. Code § 2907.04(A).

The government argues that plain error review should apply because Rivas did not make this argument about mens rea in the district court. Rivas responds that he is merely “refining” the argument he made about the absence of an actual minor in the Ohio offense. Although we are inclined to agree with the government that the issue Rivas raises on appeal is sufficiently distinct from that presented to the district court to warrant the demanding standard for correction of forfeited errors, we need not resolve the standard of review question because there is no error even under de novo review.

Rivas’s assertion that the Ohio statute encompasses behavior beyond the generic definition of “abuse” because it requires only recklessness as to the minor’s age is at odds with previous holdings of this court. We have held that Virginia and Louisiana statutes that lack any mens rea requirement nonetheless fall within the generic definition of “sexual abuse of a minor.” See Contreras v. Holder, 754 F.3d 286, 295 (5th Cir. 2014) (holding that a Virginia statute that criminalizes carnal knowledge of a child without regard to the defendant’s knowledge constitutes “sexual abuse of a minor”); Ramos-Garcia v. Holder, 483 Fed.Appx. 926, 928-29 (5th Cir. 2012) (per curiam) (holding that a Louisiana statute that prohibits indecent behavior with juveniles and explicitly states that “[l]ack of knowledge of the child’s age shall not be a defense” constitutes “sexual abuse of a minor”); see also United States v. Ramos-Martinez, 617 Fed.Appx. 287, 288 (5th Cir. 2015) (per curiam) (holding on plain error review that the defendant could not establish obvious error with applying a crime of violence enhancement based on a conviction under a Michigan statute that does not require that the defendant know the victim’s age). It necessarily follows that a statute like Ohio’s requiring at least a reckless state of mind concerning the age of the victim qualifies as “sexual abuse of a minor.”

The judgment of the district court is AFFIRMED.

      . See U.S.S.G. § 2L1.2(b)(l)(A)(ii) cmt. n.l(B)(iii).

      . Contreras and Ramos-Garcia considered the term "sexual abuse of a minor” in the context of immigration proceedings, but we apply the same generic definition of the term under both the immigration statute (8 U.S.C. § 1101(a)(43)(A)) and section 2L1.2 of the Guidelines. See United States v. Najera-Najera, 519 F.3d 509, 512 & n.2 (5th Cir. 2008).


author: EDITH H. JONES, Circuit Judge:

text:
    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
    No. 15-10242
    United States Court of Appeals, Fifth Circuit.
    September 9, 2016

      Michael J. Avenatti, Esq., Ahmed Ibra-him, Eagan Avenatti, L.L.P., Newport Beach, CA, Christopher Scott Ayres, Esq., Ayres Law Office, Addison, TX, for Plaintiffs-Appellants.
    Farbod Farnia, Paul A. Grinke, Aaron Abram Martinez, Levi Glenn McCathern, II, McCathern, P.L.L.C., Dallas, TX, for Defendants-Appellees Jerral Wayne Jones, Blue & Silver, Incorporated, Dallas Cowboys Football Club, Limited, JWJ Corporation, Cowboys Stadium, L.P., and Cowboys Stadium GP, L.L.C.
    Richard Thaddeus Behrens, Esq., George W. Bramblett, Jr., Esq., Daniel H. Gold, Esq., Anne McGowan Johnson, Matthew Adams McGee, Haynes & Boone, L.L.P., Dallas, TX, William Feldman, Attorney, Haynes & Boone, L.L.P., Houston, TX, for Defendant-Appellee National Football League.
    Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.
   EDITH H. JONES, Circuit Judge:

Plaintiffs-Appellants (“Appellants”) purchased tickets to Super Bowl XLV, but were either displaced from their seats, relocated, or had an obstructed view of the field. The majority of affected tiekethold-ers settled with the National Football League (the “NFL”). Appellants, however, elected to sue, alleging various claims relating to breach of contract and fraud. One group of Appellants sought to certify three separate class actions. Most of Appellants’ claims were . dismissed before trial, and class certification was denied. Seven individual Appellants went to trial against the NFL and prevailed on breach of contract, but not on fraudulent inducement claims. The impetus for this appeal seems to be the denial of class certification, but Appellants also contest the court’s elimination, by dismissal or summary judgment, of several claims. We AFFIRM the judgment.

BACKGROUND

Some will remember Super Bowl XLV as a close game between two legendary franchises, the Green Bay Packers and the Pittsburgh Steelers. Others will recall the unexpected ice storm that blanketed the DFW Metroplex the week of the game. Yet the memories of others will involve á multi-issue seating fiasco inside one of the nations’ most celebrated venues — Cowboys Stadium. This story began back when the North Texas Bid Committee (the “Committee”) submitted its bid to host Super Bowl XLV. Although Cowboys Stadium had not been built, the Committee billed the venue as a new state-of-the-art stadium capable of holding as many as 100,000 fans.

In preparation for the game, the Committee and the NFL entered into a stadium license agreement, which provided that the Committee would bear the responsibility of installing temporary seating to bring the minimum capacity up to 93,221. The agreement provided that the temporary seats be of a suitable standard commensurate with the quality and standards of the NFL Super Bowl viewing experience, including appropriate sightlines and access to concessions stands and restrooms. The agreement also required that all temporary seating be installed and approved by January 30, 2011 (one week before the game).

Cowboys. Stadium contracted Seating Solutions to install approximately 13,000 temporary seats for the game. The NFL hired Populous, an architectural design firm, to review and evaluate the installation plans. After Seating Solutions initially submitted its temporary seating plans, Populous noted, inter alia, several sight-line issues. As a result, over 1,000 seats were marked as having a “restricted view.” Additional seats were removed from the plans in early January during the quality control process.

Installation of the temporary seating began in the second week of January 2011. On January 30, the deadline for temporary seat installation, seats were yet to be installed or approved by the local safety authorities. Installation continued the week before the game and additional crews were brought to help Seating Solutions complete the work. The work was still ongoing at noon on Super Bowl Sunday. Ultimately, not all of the seats were ready'. Approximately 400 ticketholders were left without seats, another 850 or so tickethold-ers were relocated to seats in other parts of the stadium, and roughly 2,000 ticket-holders were delayed in reaching their seats.

The NFL apologized for the seating debacle and offered compensation to all tick-etholders who were displaced, relocated, or delayed. Nevertheless, two class action lawsuits were filed in the Northern District of Texas against the NFL and the Cowboys franchise defendants (the “Cowboys”). After consolidation, Appellants’ complaint identified three putative classes: (1) the “Displaced Class,” consisting of all ticketholders who were left without seats; (2) the “Relocated/Delayed Class,” consisting of all ticketholders who were relocated to a different seat or were significantly delayed in getting to their seats; and (3) the “Obstructed View Class” consisting of all ticketholders who were assigned seats with obstructed views of the field, the video board, and/or the stadium, but whose tickets were not marked as a restricted view seat. In their first amended complaint, Appellants raised claims for breach of contract, fraudulent inducement, fraudulent concealment, negligent misrepresentation by affirmative misrepresentations, and negligent misrepresentation by concealment, and negligence. In addition, three of the Appellants alleged Deceptive Trade Practices Act (“DTPA”) violations by all Appellees.

The NFL responded by moving to dismiss all the tort claims on the basis of Texas’s “economic loss rule,” which bars recovery in tort for economic losses resulting from a party’s failure to perform under a contract. The NFL also urged that the remaining claims for fraudulent inducement were not pled with specificity under Fed. R. Civ. P. 9(b). The Cowboys moved to dismiss all claims against them because they had no contractual relationship with the Appellants.

The district court granted in part the NFL’s motion to dismiss and dismissed the Cowboys defendants. The court dismissed with prejudice Appellants’ claims of fraudulent concealment and negligent misrepresentation against the NFL as barred by the economic loss rule. The court held that Appellants’ theory of fraudulent inducement as to the seats that were not completed by game day was not plausible because the NFL, had nothing to gain by tricking fans into purchasing tickets that it did not plan on having available. Quite the contrary, efforts to install the seats were ongoing until hours before the game. The district court accordingly dismissed the Displaced and Relocated ticketholders’ fraudulent inducement claims with prejudice. The court dismissed the Cowboys, who owed no duty to Appellants because the Cowboys were not a party to the contracts between Appellants and the NFL.

Subsequently, the court denied Appellants’ motion for class certification. With respect to the Displaced Class, the court found certification inappropriate because Appellants failed to show that the proposed class satisfied Fed. R. Civ. Pro. 23(a)’s numerosity requirement, and because individual damages issues predominated over the common legal issue of liability.

Concerning the Relocated Class, the court denied certification because individual issues predominated over the common issues of contract interpretation. The court stated that whether a ticketholder received a replacement seat of “less quality” than his original seat could not be decided on a class-wide basis because every seat is unique and each class member would need to prove individual damages.

Similarly, the court determined that liability and damages for the Obstructed View Class would require predominantly individualized inquiries regarding the extent of the obstruction, if any, and each class member’s individual damages. The court also found that this class’s fraudulent inducement claim required resolution of predominant individual liability issues: the alleged nature of the misstatement or omission and Appellants’ individual reliance.

The district court next granted the NFL’s motion for summary judgment as to Appellants’ breach of contract and fraudulent inducement claims based on obstructed views of the video board. The court found that there was no contract for an unobstructed view of the video board nor any ambiguity in the ticket term “a spectator seat for the game.” And because Appellants pointed to no evidence outside of the ticket terms that imposed a duty on the NFL to provide an obstructed view of the video board, the district court rejected fraudulent inducement claims as a matter of law.

The parties proceeded to trial on the remaining claims: the breach of contract claims of three displaced ticketholders, two relocated ticketholders, and two obstructed-view ticketholders, and the fraudulent inducement claims of two obstructed-view ticketholders. On the seventh day of the trial, the district court granted the NFL’s motion for a directed verdict on Appellants’ request for punitive damages because no reasonable jury could find fraud by clear and convincing evidence.

On March 12, 2015, the jury returned a verdict in favor of the ticketholders on their breach of contract claims and in favor of the NFL on the remaining fraudulent inducement claims. The jury awarded damages ranging from $5,670 to $22,000. The ticketholders timely appealed.

DISCUSSION

Appellants challenge nearly every dis-positive decision by the district court: (1) the dismissal of the Cowboys and fraud-related claims; (2) summary judgment on obstructed-view claims; and (3) the denial of class certification. Appellants also take issue with denial of a jury instruction and the court’s directed verdict on punitive damages. We address these issues in sequence.

A. Dismissal of the Cowboys and Fraud-related Claims

This court reviews motions to dismiss pursuant to Rule 12(b)(6) de novo, “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” Toy v. Holder, 714 F.3d 881, 883 (5th Cir. 2013). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

1. Claims against the Cowboys.

Under Texas law, “a party generally must be a party to a contract before it can be held liable for a breach of the contract.” Hoffman v. AmericaHomeKey, Inc., 23 F.Supp.3d 734, 739 (N.D. Tex. 2014) (citing Ostrovitz & Gwinn, LLC v. First Specialty Ins. Co., 393 S.W.3d 379, 387 (Tex. App.—Dallas 2012, no pet.)). To establish contract formation, a party must prove “an offer and acceptance and a meeting of the minds on all essential terms.” Principal Life Ins. Co. v. Revalen Dev., LLC, 358 S.W.3d 451, 454-55 (Tex. App.—Dallas 2012, pet. denied).

The district court dismissed the breach of contract claims against the Cowboys because Appellants made no plausible allegations that the Cowboys were anything more than third-party vendors of tickets to an NFL event.

On appeal, Appellants first argue that dismissal of their breach of contract claim against the Cowboys — and of their tort claims premised on the existence of contracts with the Cowboys — was improper. They contend that they pled sufficient facts, based on the sale invoices of game tickets and parking sold by the Cowboys to permit a plausible inference that one or more of the Cowboys defendants were parties to the ticket contracts. In support of this position, Appellants cite cases holding that invoices can constitute contracts between parties to a sale.

The cases are inapposite, because the invoices to which they refer contained additional terms relating to third parties. The Super Bowl tickets, in contrast, reference the Cowboys’ name solely to identify the stadium. The Cowboys delivered NFL’s’ tickets and sold parking. Although Appellants make additional allegations suggesting that the Cowboys were more than just a third-party vendor, the terms of the ticket are unambiguous. The ticket states: “[a]dmission may be refused or tieketholder ejected at the sole discretion of the National Football League.” Because Appellants have presented no authority supporting that a third-party vendor with limited responsibility is also responsible for the performance of the express ticket terms, Appellants’ argument that the Cowboys are liable for their tort claims fails.

2. Displaced ticketholders’ fraudulent inducement claims.

Under Texas law, the elements of common-law fraud are: (1) a material misrepresentation, (2) which was false, and (3) which was either known to be false when made or was asserted without knowledge of the truth, (4) which was intended to be acted upon, (5) which was relied upon, and (6) which caused injury. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990). “Fraudulent inducement is a distinct category of common-law fraud that shares the same elements but involves a promise of future performance made with no intention of performing at the time it was made.” Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015).

Fed. R. Civ. P. 9(b) requires that “[i]n alleging fraud ... a party must state with particularity the circumstances constituting fraud.” The complaint must thus set forth specific facts supporting an inference of fraudulent intent. Melder v. Morris, 27 F.3d 1097, 1102 (5th Cir. 1994).

In dismissing the Displaced and Relocated Ticketholders’ fraudulent inducement claims, the district court held:

Without 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.... The Court finds that Plaintiffs’ theory of fraudulent inducement as to temporary seating is not plausible.

Challenging the dismissal, Appellants contend that they were not required to allege that the NFL had a specific intent not to perform the ticket contract, but only needed to allege that the NFL recklessly made a promise to perform. Appellants mistakenly cite Custom Leasing, Inc. v. Tex. Bank & Trust Co. of Dall., 516 S.W.2d 138, 143 (Tex. 1974), a case involving fraudulent misrepresentations, not fraudulent inducement. Fraudulent inducement, as the district court understood, rests on a misrepresentation made with the intent to deceive and no intention of performing the act at the time the promise was made. Arete Partners, L.P. v. Gunnerman, 594 F.3d 390, 394 (5th Cir. 2010). Appellants’ recklessness allegation was insufficient.

Alternatively, Appellants argue that they plausibly pled Appellees’ specific intent to defraud. In support of their contention, they point to statements made by Seating Solutions in a press release dated January 27, 2011, claiming that they had created a terrific fan experience in every way maximizing safety, comfort and sight-line; a statement made by Jerry Jones that, due to brisk sales, he wanted to print more tickets; and numerous statements related to the allegation that Jones was unabashed in his desire to set the Super Bowl attendance record. They also point to facts showing that the NFL wanted to maximize profit and “wanted to avoid a public relations debacle before the game.” Finally, they argue that the NFL had knowledge from which it could be inferred that the seats would not be completed by game day, but failed to inform ticketholders.

None of these allegations suggests ■ an intent not to perform at the time the ticket contracts were sold. Indeed, given the frantic last-minute installation of seats and potential adverse publicity from intentional nonperformance, an inference of fraudulent inducement is untenable.

S. Fraudulent concealment and negligent misrepresentation claims.

The district court dismissed Appellants’ fraudulent concealment and negligent misrepresentation claims holding that they were foreclosed by the economic loss rule. Under Texas law, the independent injury rule — also referred to as the economic loss rule — precludes recovery in tort when the loss complained of is the subject matter of a contract between the parties. See Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991). In DeLanney, the Texas Supreme Court explained:

If the defendant’s conduct — such as negligently burning down a house — would give rise to liability independent of the fact that a contract exists between the parties, the plaintiffs claim may also sound in tort. Conversely, if the defendant’s conduct — such as failing to publish an advertisement — would give rise to liability only because it breaches the parties’ agreement, the plaintiffs claim ordinarily sounds only in contract. •

Id. In determining whether a claim can be brought as a tort, consideration must be given to “the source of the defendant’s duty to act (whether it arose solely out of the contract dr from some common-law duty) and the nature of the remedy sought by the plaintiff.” Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 13 (Tex. 1996).

Challenging the dismissal, Appellants argue that their claims fell within the well-recognized exception to the economic loss rule: “if a plaintiff presents legally sufficient evidence on each of the elements of a fraudulent inducement claim, any damages suffered as a result of the fraud sound in tort” because “the legal duty not to fraudulently procure a contract is separate and independent from the duties established by the contract itself.” Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 46-47 (Tex. 1998). Because there is no plausible case for fraudulent inducement, this exception carries no weight. Moreover, in tallying damages like travel costs, Appellants alleged no damages independent from those resulting from the breach of contract. The economic loss rule bars these claims. See TIB — The Indep. Bankers-Bank v. Canyon Cmty. Bank, 13 F.Supp.3d 661, 671 (N.D. Tex. 2014).

B. Summary Judgment on Obstructed View Claims

Summary judgment motions are reviewed de novo, using the same standard as the district court: viewing “all facts and evidence in the light most favorable to the non-moving party.” Amerisure Mut. Ins. Co. v. Arch Specialty Ins. Co., 784 F.3d 270, 273 (5th Cir. 2015). Summary judgment is appropriate if the record discloses “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

1. Contract claims based on an obstructed view of the video board.

Under Texas law, “the interpretation of an unambiguous contract is a question of law for the court to decide.” Gonzalez v. Denning, 394 F.3d 388, 392 (5th Cir. 2004). Courts are to “give contract terms their plain and ordinary meaning unless the instrument indicates the parties intended a different meaning.” Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). “If a written contract is so worded that it can be given a definite or certain legal meaning, then it is not ambiguous.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995) (per curiam). “If, however, the language of a policy or contract is subject to two or more reasonable interpretations, it is ambiguous.” Id.

Appellants argue that the ticket contract, which promised the ticketholder “a spectator seat for the game,” is ambiguous. They first contend that the language cannot be given a definite or certain legal meaning because it is well known that at Cowboys’ Stadium, the video board is very much part of the game-viewing experience.

We disagree. The ticket speaks for itself: “a spectator seat for the game” is a spectator seat for the Super Bowl game played on the field. Further, the interpretation offered by Appellants is not reasonable. As noted by the district court, if the term “a spectator seat for the game” were interpreted to include the football game displayed on the video board, every ticket-holder would have a breach of contract claim if the video board malfunctioned, even if he had a full view of the field. The unambiguous term of the contract entitling ticketholders to “a spectator seat for the game” was not breached by an obstructed view of the video board.

2. Fraudulent inducement claims based on an obstructed view of the video board.

“As a general rule, a failure to disclose information does not constitute fraud unless there is a duty to disclose the information.” Bradford v. Vento, 48 S.W.3d 749, 755 (Tex. 2001). Therefore, “silence may be equivalent to a false representation only when the particular circumstances impose a duty on the party to speak and he deliberately remains silent.” Id. Whether such a duty exists is a question of law. Id.

The district court dismissed Appellants’ claims for lack of evidence that the ticket terms imposed a duty on the NFL to disclose that the view of the video board was obstructed.

As just noted, the NFL bore no contractual obligation to provide seats with a view of the video board. The tickets themselves were not misleading. Consequently, the premise of Appellants’ argument — that the NFL had a duty to disclose that it knew that prior affirmative statements on the tickets suggesting there were no obstructed views was false or misleading — fails. Cf. Shangong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029, 1035 (5th Cir. 2010) (internal quotation marks and citations omitted) (“a duty to speak arises between non-fiduciaries when one party learns later that his previous affirmative statement was false or misleading”). Neither the NFL nor the ticket contract made reference to the video board.

Appellants also rely on this court’s holding in Union Pac. Res. Grp, Inc. v. Rhóne-Poulenc, Inc., 247 F.3d 574, 586 (5th Cir. 2001); “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[.]” This argument is unavailing for three reasons. First, Union Pacific was decided before the Texas Supreme Court stated in Bradford that Texas has “never adopted” the rule recognizing a general duty to disclose facts in a commercial setting. 48 S.W.3d at 755-56; Coburn Supply Co. v. Kohler Co., 342 F.3d 372, 377 (5th Cir. 2003). Second, Appellants present no evidence to suggest that the NFL knew that Appellants were relying on the alleged concealed fact. Third, by its nature, a fraudulent inducement claim cannot be premised on alleged post-contractual conduct. Appellants were not fraudulently induced to buy Super Bowl tickets thinking they would see the game on the video board.

C. Denial of Class Certification

This court reviews a denial of class certification for abuse of discretion and the legal questions implicated by the denial are reviewed de novo. In re Rodriguez, 695 F.3d 360, 364 (5th Cir. 2012). “Implicit in this deferential standard is a recognition of the essentially factual basis of the certification inquiry and of the district court’s inherent power to manage and control pending litigation.” In re Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir. 2004) (quoting Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir. 1998)).

Rule 23 governs whether a proposed class falls within the limited exception to “the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61-L.Ed.2d 176 (1979). Four prerequisites must be met by all classes: numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a). “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). The party seeking class certification bears the burden of demonstrating that the requirements of Rule 23 have been met. O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 737-38 (5th Cir. 2003).

Under Rule 23(a)(1), certification is only appropriate where “the class is so numerous that joinder of all members is impracticable.” “[A] plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members.” Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981). This court, however, has repeatedly noted that “the number of members in a proposed class is not determinative of whether joinder is impracticable.” In re TWL Corp., 712 F.3d 886, 894 (5th Cir. 2013) (quoting Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999)). Rather, “a number of facts other than the actual or estimated number of purported class members may be relevant to the ‘numerosity’ question; these include, for example, the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiffs claim.” Zeidman, 651 F.2d at 1038.

Pursuant to Rule 23(a)(2), there must be “questions of law or fact common to the class.” The Supreme Court has explained that “[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.’ ” Dukes, 564 U.S. at 349, 131 S.Ct. 2541 (quoting General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740, (1982)). Dissimilarities among class members should be considered to determine whether a common question is truly presented. Id. at 359, 131 S.Ct. 2541. Even a single common question of law or fact can suffice to establish commonality, id. so long as resolution of that question “will resolve an issue that is central to the validity of each one of the [class member’s] claims in one stroke,” id. at 350, 131 S.Ct. 2541.

Rule 23(a)(3) provides that “the claims or defenses of the representative parties [must also be] typical of the claims or defenses of the class.” The typicality inquiry rests “less on the relative strengths of the named and unnamed plaintiffs’ cases than on the similarity of legal and remedial theories behind their claims.” Jenkins v. Raymark Indus. Inc., 782 F.2d 468, 472 (5th Cir. 1986).

Moreover, Rule 23(a)(4) requires the party seeking certification to show that “the representative parties will fairly and adequately protect the interests of the class.” This standard “requires the class representatives to possess a sufficient level of knowledge and understanding to be capable of ‘controlling’ or ‘prosecuting’ the litigation.” Berger v. Compaq Comput. Corp., 257 F.3d 475, 482-83 (5th Cir. 2001).

Nonetheless, class certification is permitted only if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The predominance inquiry “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). “In order to ‘predominate,’ common issues must constitute a significant part of the individual cases.” Mullen, 186 F.3d at 626 (quoting Jenkins, 782 F.2d at 472). Determining whether legal issues common to the class predominate also requires that this court inquire how the case will be tried. O’Sullivan, 319 F.3d at 738. “This entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class.” Id. .

Generally, individualized damages calculations will not preclude a finding of predominance. See Tyson Foods, Inc. v. Bouaphakeo, — U.S. -, 136 S.Ct. 1036, 1045, 194 L.Ed.2d 124 (2016) (quoting 7AA C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1788, pp. 123-34 (3d ed. 2005) (footnotes omitted) (“[I]t uniformly has been held that differences among the members [of a class] as to the amount of damages incurred does not mean that a class action would be inappropriate.”)). Nothing in this general language from Tyson Foods, however, alters this court’s holdings that class treatment “may not be suitable where the calculation of damages is not susceptible to a mathematical or formulaic calculation, or where the formula by which the parties propose to calculate individual damages is clearly inadequate.” Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294, 307 (5th Cir. 2003). “Where the plaintiffs’ damage claims focus almost entirely on facts and issues specific to individuals rather than the class as a whole, the potential exists that the class action may degenerate in practice into multiple lawsuits' separately tried. In such cases, class certification is inappropriate.” O'Sullivan, 319 F.3d at 744-45.

Finally, to determine whether a class action is the superior method'for adjudicating the controversy, the district court must compare and “assess the relative advantages of alternative procedures for handling the total controversy.” In re TWL Corp., 712 F.3d at 896 (quoting Fed. R. Civ. P. 23(b)(3) Advisory Committee’s Note to 1966 Amendment). The superiority analysis is fact-specific and varies depending on the circumstances of each case. Id. Among the factors for the court to consider are “(A) the interests of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties encountered in managing a class action.” Amchem Prods., Inc., 521 U.S. at 615-616, 117 S.Ct. 2231.

1. The Displaced Class.

The district court denied certification of the Displaced Class after holding that Appellants had failed to demonstrate that the class was so numerous that join-der of all members was impracticable. Alternatively, the district court found that individual issues of damages predominated over the one remaining common legal issue — whether the ticket terms require the NFL to refund the face value of the ticket, or whether purchasers are entitled to damages generally recoverable for a breach of contract. Because the proposed class fails the numerosity test, we need not discuss the court’s predominance conclusions concerning.this class.

On numerosity, Appellants argue that even accepting the NFL’s estimate that the Displaced Class consisted of 42 class members as opposed to 55, a presumption of impracticability was raised. In support of their argument, Appellants cite to Mullen as adopting the proposition suggested in Newberg on Class Actions-, a class of forty or more members should raise the presumption that joinder is impracticable. 186 F.3d at 624. But Mullen also stated that “the number of members in a proposed class is not determinative of whether joinder is impracticable.” Id. This court has repeatedly counseled that “courts must not focus on sheer numbers alone.” In re TWL Corp., 712 F.3d at 894 (quoting Pederson v. La. State Univ., 213 F.3d 858, 868 n.11 (5th Cir. 2000)). In fact, Appellants’ counsel are currently pursuing a “mass” action for 237 individual Super Bowl XLV ticketholders in the. same district court. Greco v. Jones, No. 3:13-CV-1005-M (N.D. Tex.). We find no clear error in the district court’s determination that Appellants failed to meet the threshold numerosity requirement. ■

2. The Relocated Class.

The district court denied certification of the Relocated Class after holding that individual issues predominated over common issues. The court found that the common issue of contract interpretation — whether the NFL breached the ticket terms by relocating any ticketholder — was overwhelmed by two individualized issues: a front-end inquiry to determine membership in the class — ie., those who received inferior seats — and a back-end inquiry to determine individual damages.

Appellants assert that individual issues did not predominate over common issues and repeat the contention, inter alia, that different amounts of damages do not preclude class certification. These arguments are unconvincing. There was no record of what replacement seat was received by each relocated ticketholder. Whether a class member actually received a lesser-quality seat and how the relocated seat affected damages raised complex and individualized issues .that could not be resolved by common evidence.

As was discussed above, this circuit recognizes that individual damages issues can preclude class certification. See Bell Atl. Corp., 339 F.3d at 307; O’Sullivan, 319 F.3d at 744-45; see also Allison, 151 F.3d at 413 (“[A]s claims for individually based money damages begin to predominate, the presumption of cohesiveness decreases while the need for enhanced procedural safeguards.. .increases.”); cf. Bertulli v. Indep. Ass’n of Cont’l Pilots, 242 F.3d 290, 298 (5th Cir. 2001)(finding that common issues predominated despite the need for individualized damages where “virtually every issue prior to damages is a common issue.”).

In In re Deepwater Horizon, 739 F.3d 790, 816 (5th Cir. 2014), on which Appellants rely, this court upheld a finding of predominance despite diverse damages because “even without a common means of measuring damages, [the] common issues [of fact and law] nonetheless predominated over the issues unique to individual claimants.” In contrast here, we agree with the district court that individual damages issues predominated over the common issue of breach because ticketholders incurred vastly different expenses, which would essentially necessitate mini-trials to adjudicate damages for each ticketholder.

It is also no support for certification that another circuit has held that “[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 Litig., 280 F.3d 124, 141 (2d Cir. 2001). This observation was not made in the context of a predominance analysis, but in the discussion of the “manageability” of the potential class action. Id Moreover, this court has made clear that “[a] district court cannot manufacture predominance through the nimble use of’ management tools. Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996). Nor does any authority require the district court to use case management tools within its discretion.

Accordingly, the district court did not abuse its discretion in refusing to certify this class. See Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005).

3. The Obstructed-View Class.

The district court denied certification of the Obstructed-View Class, concluding that individualized inquiries predominated about the extent of the obstruction and the personal damages alleged by each class member. The court also held that the fraudulent inducement claims required resolving predominant individual issues. Specifically, the alleged misstatement or omission, and each Appellants’ reliance on any such misstatement or omission.

Appellants first contend that the district court erred in holding that an individualized inquiry to determine the extent of obstruction — or the materiality of the breach — was required because common evidence showed that any obstructed view of the field was material. In support of their contention, Appellants argue that tickets marked “restricted view” were sold at the reduced price of $600, regardless of the extent of the obstruction. Further, even if the extent of the obstruction was relevant, it could be proved by common evidence in the form of sightline projections and analysis performed by Populous and Seating Solutions.

We are not persuaded. The fact that the NFL sold all tickets marked “restricted view” at the same price does not by itself establish that any obstruction constituted a material breach of the ticket contract. Under Texas law, materiality of a party’s breach of contract is determined by considering five factors, including “the extent to which the injured party will be deprived of the benefit which he reasonably expected.” Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 199 (Tex. 2004) (quoting Restatement (Second) of Contracts § 241 (1981)). In this case, a jury could reasonably find that a minor obstruction, while a breach of the ticket contract, was not material because the ticketholder could still fully enjoy the game.

The district court rejected Appellants’ contention that they could use computer modeling and sightline studies to establish the existence and extent of any obstruction; we agree. The court observed that while it may be possible for such a program to identify seats with obstructed views, this does not eliminate the need to evaluate the extent of obstruction actually experienced by individual class members; even if Appellants hired an expert to present the models, the jury would still need to determine if every identified seat was obstructed.

With respect to the fraudulent inducement claim, Appellants contend that the district court erred in holding that reliance was an individual issue. Appellants rely on Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972), a case involving primarily a failure to disclose under the Securities Exchange Act, where the court held that proof of reliance was not a prerequisite to recovery. The court stated: “[a]ll 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 [a] decision.” Id. Recognizing this fact, this court has confined the presumption to SEC Rule 10b-5 claims based on fraudulent omission. No Texas eases appear to cite Affiliated Ute or to apply the Ute presumption.

Moreover, as the NFL notes, presuming class-wide reliance would be particularly inappropriate under the circumstances of this case. The district court found, and Appellants do not dispute, that the evidence suggested that different tickethold-ers had different expectations regarding their seats — some likely relied on a lack of notice that their views would be restricted when they purchased their seats, but others purchased seats without obtaining any information about them. Because expectations varied, the materiality of the omission may have significantly differed from person to person, undermining the very premise of the Ute presumption.

Because the Ute presumption does not apply, the only issues common to the Obstructed-View Class were breach of contract and whether the NFL had a duty to disclose any obstructed views of the field or the video board. The district court held these issues were outweighed by individual issues of materiality, damages, and reliance. The court did not abuse its discretion in determining that individual issues predominated and that class certification was inappropriate. See Crutchfield v. Sewerage & Water Bd. Of New Orleans, No. 15-30709, 829 F.3d 370, 375, 2016 WL 3769303 (5th Cir. July 13, 2016) (“[A] district court’s expertise in. ease management and overseeing trials is particularly useful in making the predominance and superiority inquiries of Rule 23(b)(3), which require envisioning what a class trial would look like”).

D. Jury Instruction

This court reviews under the abuse of discretion standard a district court’s refusal to provide a requested jury instruction. Cooper Indus., Inc. v. Tarmac Roofing Sys., Inc., 276 F.3d 704, 714 (5th Cir. 2002). This court will reverse the district court’s decision “only if the requested instruction (1) was a substantially correct statement of the law, (2) was not substantially covered in the charge as a whole, and (3) concerned an important point in the trial such that the failure to instruct the jury on the issue seriously impaired the defendant’s ability to present a given defense.” Id.

“A promise to do an act in the future is actionable fraud when made with the intention, design and purpose of deceiving, and with no intention of performing the act.” Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986). In other words, a breach of contract is only actionable as fraudulent inducement if it is “coupled with a showing that the promisor never intended to perform under the contract.” Kevin M. Ehringer Enters., Inc. v. McData Servs. Corp., 646 F.3d 321, 325 (5th Cir. 2011).

The district court gave a jury instruction stating, the elements of fraudulent inducements as pronounced by the Texas Supreme Court in DeSantis, 793 S.W.2d at 688. Appellants do not challenge that instruction. Rather, they challenge the district court’s refusal to give an additional instruction on fraud through failure to disclose. Appellants assert that by refusing to give' the proposed instruction, the district court prevented the jury from considering whether the NFL committed fraud by failing to disclose material facts concerning the obstructed view of the playing field.

The sole tort claim remaining when the case went to trial was a claim of fraudulent inducement, and the district court gave a correct, complete instruction on that claim. Appellants cite to Kajima Int’l, Inc. v. Formosa Plastics Corp., USA, 15 S.W.3d 289 (Tex. App.—Corpus Christi 2000, no pet.), to argue that their fraudulent inducement claim can be proven with fraudulent conduct occurring after the execution of a contract. The court in Kajima, however, made clear that the consideration of post-execution fraud evidence was necessary because the defendant made post-execution promises- in order to induce the plaintiff into continuing its performance. Id.

Conversely here, there was no continued performance induced by post-execution fraud; there was only the single ticket contract — a promise of future performance given in exchange for the ticket price. Texas law is clear that a promise of future performance is actionable as fraudulent inducement when it is “made with the intention, design and purpose of deceiving and with no intention of performing the act.” Spoljaric, 708 S.W.2d at 434. Because the district court gave a correct instruction on fraudulent inducement, the court did not abuse its discretion in declining to give the proposed jury instruction.

CONCLUSION

We find no error in the district court’s 12(b)(6), Rule 56, and directed verdict rulings. We also hold that the district court did not abuse its discretion in denying to give Appellants’ proposed jury instruction. Finally, in denying class certification, the district court carefully applied the class certification principles to each class, and we agree with its conclusions. Accordingly, we AFFIRM.

      . Presently known as AT&T Stadium.

      . According to the NFL, approximately 90% of the displaced fans and 70% of the relocated or delayed fans ultimately accepted the NFL’s settlement offers and signed a release of all claims,

      . Additionally, the court dismissed the named ticketholders' DTPA claims with prejudice because, as members of the Displaced Class, they lacked standing to assert claims for failure to disclose that certain seats had obstructed views. The district court, however, dismissed without prejudice claims for failure to disclose as to other potential ticketholders who had an obstructed view seat.

      . The negligence claims against the NFL were pleaded in the alternative to Appellants’ breach of contract claims.

      . Hawkins v. Frick-Reid Supply Corp., 154 F.2d 88, 88-89 (5th Cir. 1946); Chesapeake Operating, Inc. v. Whitehead, No. C-10-301, 2011 WL 4372486, at *5 (S.D. Tex. Sept. 19, 2011).

      . The Appellants also argue that the Cowboys and the NFL were agents of one another, and thus Appellants were free to sue either or both of them for breach of contract. This argument was not presented to the district court. Appellants urge the court to infer from their complaint a breach of contract agency theory. We decline to do so and thus consider Appellants agency argument waived. See Celanese Corp. v. Martin K. Eby Const. Co., 620 F.3d 529, 531 (5th Cir. 2010) (“Review of a Rule 12(b)(6) dismissal is, by its very nature, limited to the allegations and theories set forth in the complaint that the district court had before it when granting the motion to dismiss.”); Hogan v. City of Hous., 819 F.2d 604 (5th Cir. 1987) (reviewing dismissal under Rule 12(b)(6), “we consider only the pleadings and accept them as true”)

      . Appellants make no new arguments to defend their fraud-based DTPA claims, which are infirm for the reasons detailed in reference to the other fraud-related claims.

      . See Griffin v. Box, 85 F.3d 625, 1996 WL 255296, at *16 n. 17 (5th Cir.1996) (“Ute presumption applies only to rule 10b-5 actions based primarily upon omissions rather than misrepresentations.”) (internal quotations and citations omitted); Smith v. Ayres, 845 F.2d 1360, 1363 (5th Cir. 1988) ("[T]he first step in determining whether the Affiliated Ute presumption applies is to identify whether the plaintiff's claim is founded on a fraudulent omission. This in turn depends upon which of the three subsections in Rule 10b-5 forms the basis for the plaintiff’s complaint.”); Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 359 (5th Cir. 1987) (in Affiliated Ute, "the Supreme Court held that the 10b-5 plaintiff does not have to present positive proof of reliance in all securities fraud settings.”).

      . Appellants point to one district court case purporting to extend the application of the Ute presumption outside of the federal securities context. In In re Great S. Life Ins. Co. Sales Practices Litig., 192 F.R.D. 212, 220 (N.D. Tex. 2000), the court acknowledged that “Ute involved an interpretation of a federal securities statute.” The court, however, cited another district court decision for the general proposition that, in Ute, "the 'Supreme Court held that positive proof of reliance is unnecessary in cases involving primarily a failure to disclose.' ” Id. (quoting Steiner v. Southmark Corp., 734 F.Supp. 269, 275 (N.D. Tex. 1990)). Importantly, Steiner is itself a federal securities case involving a claim brought under Rule 10b-5, and thus does not support the extension of the Ute presumption to claims of-common law fraud. Id. at 272.

      . Proposed Jury Instruction No. 18 read: As to plaintiffs [INSERT PLAINTIFFS' NAMES HERE], you may also conclude that the NFL committed fraud through a failure to disclose. The elements of fraud through a failure to disclose must be proven by a preponderance of the evidence: First, the NFL failed to disclose a material fact within the knowledge of the NFL; Second, the NFL knew that the plaintiff at issue is ignorant of the fact and does not have an equal opportunity to discover the truth; Third, the NFL intended to induce the plaintiff at issue to take some action by failing to disclose the fact, and Fourth, the plaintiff at issue suffered some injury as a result of acting without knowledge of the undisclosed fact.

      . Appellants briefly argue that the district court erred in granting a directed verdict on their punitive damages request (based on their obstructed view of the video board fraud claim). Because the court properly dismissed the fraud claim on summary judgment, this argument is meritless.
      The district court did grant in part the NFL's Rule 50 Motion for Judgment as a Matter of Law, holding that no reasonable jury could find fraud by clear and convincing evidence and thus Appellants were not entitled to exemplary damages as a matter of law. That ruling, however, is not expressly appealed, and any challenge to it is waived. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).


author: PATRICK E. HIGGINBOTHAM, Circuit Judge:

text:
    Jeffery WOOD; Rolando Ruiz; Robert Jennings; Terry Edwards; and Ramiro Gonzales, Plaintiffs-Appellants v. Bryan COLLIER, Executive Director, Texas Department of Criminal Justice; Lorie Davis, Director, Correctional Institutions Division, Texas Department of Criminal Justice; James Jones, Senior Warden; and Unknown Executioners, Defendants-Appellees
    No. 16-20556
    United States Court of Appeals, Fifth Circuit.
    FILED September 12, 2016

      Michael John Biles, Esq., Attorney, Jill Rickershauser Carvalho, King & Spalding, L.L.P., Austin, TX, Maurie Levin, Philadelphia, PA, for Plaintiffs-Appellants.
    Jeremy Craig Greenwell, Esq., Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Prerak Shah, Senior Counsel, Office of the Attorney General for the State of Texas, Austin, TX, for Defendants-Appel-lees.
    Before HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.
   PATRICK E. HIGGINBOTHAM, Circuit Judge:

In 2012, Texas adopted its current execution protocol: a single, five-gram dose of pentobarbital to induce death. Five men convicted of murder and sentenced to die by lethal injection ask this Court to stay their impending executions based on an earlier and separate case between Texas and two death row prisoners. Three of the five received stays from the Texas Court of Criminal Appeals on state habeas petitions presenting claims not at issue here. The remaining two argue that Texas is obliged by the Eighth Amendment’s prohibition on cruel and unusual punishment and the Fourteenth Amendment’s guarantee of equal protection under the law to retest the execution drug to assure it does not present a high risk of unnecessary pain. We are not persuaded these prisoners have made the showing required for a stay pending appeal and DENY their motion for a stay of execution.

I.

A.

Appellants filed this 42 U.S.C. § 1983 civil suit on August 12, 2016 in the United States District Court for the Southern District of Texas, alleging violations of the First, Eighth, and Fourteenth Amendments, and sought a preliminary injunction that would have granted the ultimate relief requested in the complaint. They asserted that: (1) Texas’s use of compounded pento-barbital absent re-testing shortly before execution violates the Eighth and Fourteenth Amendments by creating a substantial risk of severe pain; (2) Texas’s refusal to disclose elements of its execution protocol violated Appellants’ First, Eighth, and Fourteenth Amendment rights to be free from cruel and unusual punishment, due process, notice, an opportunity to be heard, and access to the courts; (3) voluntary re-testing of the pentobarbital that will be used to execute plaintiffs in another suit created a constitutional right to such re-testing for all prisoners; and (4) the lack of a requirement that Texas notify the Appellants of any changes to the drugs or to the lethal injection protocol that will be used to carry out their sentences impairs protection of their right to be free from cruel and unusual punishment and to due process under the Eighth and Fourteenth amendments.

The State moved to dismiss the complaint on August 15, 2016, arguing that all except the equal protection claim were time-barred and all claims failed as a matter of law. At a hearing the following day, the district court denied the request for a preliminary injunction and dismissed the complaint for failure to state a claim. The next day the district court denied a stay pending appeal.

B.

The prisoners’ suit now before us presents as the latest in a series of cases targeting capital punishment. In the recent case before this court of Jordan v. Fisher, a group of Mississippi death row inmates challenged that state’s use of pentobarbital as the first drug in a so-called “three-drug cocktail.” There, the Jordan prisoners complained to the district court that pento-barbital was not a sufficiently fast acting barbiturate to guarantee anesthetization prior to the introduction of vecuronium bromide and potassium chloride, urging as the alternative a single, lethal dose of a barbiturate.

Since 2012 the State of Texas has done just that — execution via a single-drug protocol utilizing a five-gram dose of pento-barbital. Texas originally used pentobarbi-tal purchased from a pharmaceutical firm in its executions. However in 2011, Lund-beck, the Danish pharmaceutical firm that produces manufactured pentobarbital, refused to supply the drug to states that execute by lethal injection. In response, in September 2013, Texas began purchasing pentobarbital compounded by pharmacies. Texas alleges, and Appellants do not dispute, that Texas has used compounded pentobarbital to execute thirty-two prisoners since 2013 without issue. Even so, Appellants’ primary contention is that Texas’s use. of compounded pentobarbital creates significant risks of unnecessary pain, and thus the state should be compelled to retest the drug shortly before execution.

II.

A.

Appellants request a stay of execution pending review in this Court of the district court’s dismissal of their suit and denial of a stay pending appeal. A stay of execution is an equitable remedy that is not available as a matter of right. In determining whether to grant a stay pending appeal, this Court weighs:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

B.

“[Bjecause it is settled that capital punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means of carrying it- out.’ ” The Court has repeatedly held that lethal injection is a permissible method of execution. While the Eighth Amendment does not require that execution be painless, it does prohibit “serious illness and needless suffering” where there exists an alternative that is “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” The Amendment secures a right to be free from methods of execution that create “a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.” Stated differently, “there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading they were subjectively blameless for purposes of the Eighth Amendment.”

C.

The Equal Protection Clause of the Fourteenth Amendment is “essentially a direction that all persons similarly situated should be treated alike.” Its basics are rote: “[e]qual protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.” In assessing an equal protection claim, “[s]trict scrutiny is appropriate only where a government classification implicates a suspect class or a fundamental right.” “In cases that do not implicate suspect classes or fundamental rights, ‘[t]he appropriate standard of review is whether the difference in treatment between [classes] rationally furthers a legitimate state interest.’ ” “Under rational basis review, differential treatment must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”

An equal protection claim that is premised on differential treatment but not based on membership in a suspect class or the infringement of a fundamental right may be cognizable as a so-called “class of one.” “We review such claims under a two-prong test: the plaintiff must show that (1) he or she was intentionally treated differently from others similarly situated and (2) there was no rational basis for the difference in treatment.”

III.

Each of these men was sentenced to death over a decade ago — two more than twenty years ago — and each has known he will be executed using compounded pento-barbital since at least 2013. In moving for a stay, the prisoners assert only their equal protection claim; other claims in the complaint are not before us.

A.

The first requirement for a stay of execution is “a strong showing that [the mov-ant] is likely to succeed on the merits.” We examine the alleged errors of the district court for a substantia] likelihood of success before this Court.

i.

The prisoners first argue that the Eighth Amendment right to be free from cruel and unusual punishment is burdened by Texas’s denial of re-testing shortly before execution. They urge that the district court erred by evaluating their claim under rational basis review; that the correct standard of review is strict scrutiny, with a shift of the burden to the State to demonstrate that its classification was narrowly tailored to achieve a compelling government interest.

This argument relies on the contention that Texas’s decision to re-test the pento-barbital in the Whitaker case and not here denies them equal protection. In Whitaker, the plaintiffs, as here, alleged that Texas does not provide all of the procedural safeguards they believed necessary for the use of compounded pento-barbital. While all agreed that Texas’s decision to re-test mooted the case, the district court dismissed the suit for other reasons. The prisoners’ primary conten'tion now is that re-testing in Whitaker created a right to re-testing for all prisoners, a novel and flawed invocation of equal protection doctrine.

The Eighth Amendment guarantees a right to be free from methods of execution that present a substantial risk óf unnecessary pain. That right is enjoyed by all persons. It rests on text, not on episodic differential treatment. In Glossip, the Court held that a method of execution does not violate the Eighth Amendment unless it “presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.” The Court held that, to qualify for a stay of execution, plaintiffs must demonstrate “that the State’s lethal injection protocol creates a demonstrated risk of severe pain.” These are substantial hurdles, necessarily so.

Appellants assert that there is a risk that the drug might fail, and thus retesting for one and not another impinges upon the Eighth Amendment. That said, under Glossip, the prisoners must establish that not re-testing the drug presents a sure or very likely risk of pain.

The reality is that pentobarbital, when used as the sole drug in a single-drug protocol, has realized no such risk. The prisoners cannot avoid the facts that: (1) the district court found that at least thirty-two executions in Texas have utilized the single-drug compounded pento-barbital protocol without incident and, (2) when pentobarbital is the sole drug used to execute, unconsciousness necessarily precedes death, effectively obviating the problem of conscious pain and suffering that was oft cited as a risk of the “three-drug cocktail.” Rather, relying on conjecture regarding the drugs’ beyond-use dates and compounding, the prisoners urge only that “[t]esting the compounded pentobarbital shortly before its use ensures the prisoner will not suffer severe pain.... ” But this assertion fails to reach the Eighth Amendment bar on unnecessarily severe pain that is sure, very likely, and imminent. The effort to draw upon equal protection works no change in the reach of the Eighth Amendment.

However one kneads the protean language of equal protection jurisprudence, the inescapable reality is that these prisoners have not demonstrated that a failure to retest brings the risk of unnecessary pain forbidden by the Eighth Amendment. Attempting to bridge this shortfall in their submission with equal protection language, while creative, brings an argument that is ultimately no more than word play.

ii.

The prisoners do not allege membership in a protected class, and despite efforts to reframe the issues, their claims present at bar as a futile effort to assert a “class of one.”

Typically, a class of one involves a discrete group of people, who do not themselves qualify as a suspect class, alleging the government has singled them out for differential treatment absent a rational reason. Olech involved just those facts, with a municipality demanding a 33-foot easement from the plaintiff where it required only a 15-foot easement from other similarly situated property owners. Here, the prisoners allege that the Whitaker plaintiffs were singled out to receive a benefit denied to them, turning the Olech analysis on its head.

That problem aside, in Engquist, the Court discussed “forms of state action ... which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments.” Engquist dealt with a government employee who brought a class of one claim alleging that her termination violated the Equal Protection Clause. At trial, the jury returned a verdict for the plaintiff. The Ninth Circuit reversed, and the Supreme Court affirmed the Ninth Circuit’s reversal, holding that “ratifying a class-of-one theory of equal protection in the context of public employment would impermissibly ‘constitutionalize .the employee grievance.’ ”

The Court recognized that, in the core areas of equal protection, governmental discretion could be used as a cover for impermissible discrimination. But here, “treating like individuals differently is an accepted consequence of the discretion granted,” and allowing equal protection claims on such grounds “would be incompatible with the discretion inherent in the challenged action.” The strategic decision of the State of Texas to re-test in one case, in the context of an ever-changing array of suits attacking its use of capital punishment from all angles, is within the discretion inherent in the challenge made here.

The district court held that the Engquist exception to class of one claims controls regarding decisions made, here and in Whitaker, by Texas as a litigant; that, as a matter of law, Appellants’ equal protection claim fails as a class of one claim. We agree.

Hi.

The prisoners’ final contention in support of a stay is that the district court erred in two ways when granting the State’s motion to dismiss: procedurally by applying the wrong pleading standard and substantively by dismissing a complaint that “adequately plead an equal protection violation.” They argue that the district court “repeatedly challenged Appellants’ allegations and factual support” instead of applying the correct standard, under Twombly and Iqbal, which accepts factual allegations in the complaint as true and evaluates the complaint for plausibility. The prisoners relied upon two affidavits of proffered expert opinion in support of their motion for a preliminary injunction and then their request for a stay. The district court dispatched them as “junk science.” That aside, the affidavits do not themselves move beyond speculation and do not confront the success of pentobarbi-tal as the sole-drug used to execute.

As we earlier explained, the district court found that counts one, two, and four in the complaint are time barred, and that holding is not challenged. Count three, the equal protection claim, fails as a matter of law for the reasons we have stated here' — • essentially the same reasons offered by the district court. Accepting the facts as pled, all claims still fail. Any error committed is harmless.

B.

Again, of course, “[i]n a capital case, the possibility of irreparable injury weighs heavily in the movant’s favor.” The prisoners argue the injury they will face is the possibility of severe pain during their executions, but they do not demonstrate that they are nigh sure to suffer unnecessary pain. Texas, on the other hand, proffers that compounded pentobar-bital has been used in thirty-two executions ,in the state without issue. We cannot say that Appellants have demonstrated that they are likely to suffer an irreparable injury absent a stay.

C.

Texas has a strong interest in enforcing the judgments of its courts in criminal cases, but the public interest writ large takes no sides here. The finality of a death sentence and, with it, the inherent risk of uncertainty demand diligent effort by all. These prisoners have enjoyed that effort— with two of them residing on death row in excess of twenty years. That reality may give pause to the entire enterprise, but does not bespeak neglect of bench and bar. To these eyes, a system that leaves persons on death row for over two decades more surely taxes the Eighth Amendment’s prohibition of undue suffering than does the elusive search for minimum pain for those brief moments of passage across the river.

Appellants do not contest their convictions or their sentences. Instead they argue that the Eighth and Fourteenth Amendments require the State of Texas to re-test the pentobarbital that will be used to execute them. The district court determined that Appellants’ claims are merit-less. Appellants have not made the requisite showing that would justify a stay pending appeal. Appellants’ motion for a stay is DENIED.

Concurrence:

JAMES L. DENNIS, Circuit Judge, concurs in denying the motion for a stay.

      . 823 F.3d 805 (5th Cir.2016).

      . Josh Sanburn, The Hidden Hand Squeezing Texas' Supply of Execution Drugs, Time (August 7, 2013), http://nation.time.com/2013/08/ 07/the-hidden-hand-squeezing-texas-supply-of-execution-drugs/.

      . In an effort to protect its suppliers, Texas does not disclose its sources of pentobarbital.

      . Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006).

      . Nken v. Holder, 556 U.S. 418, 426, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). See also Battaglia v. Stephens, 824 F.3d 470, 475 (5th Cir. 2016). In assessing these factors, while not dispositive, "[i]n a capital case, the possibility of irreparable injury weighs heavily in the movant's favor.” O'Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir. 1982).

      . Glossip v. Gross, - U.S. -, 135 S.Ct. 2726, 2732-33, 192 L.Ed.2d 761 (quoting Baze v. Rees, 553 U.S. 35, 47, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality)). See also Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir.2013).

      . See Glossip, 135 S.Ct. at 2739-40 (approving of Oklahoma’s three-drug lethal injection protocol); see also Baze, 553 U.S. at 54-56, 128-S.Ct. 1520 (plurality) (approving of Kentucky’s three-drug lethal injection protocol). While Glossip and Baze both dealt with three-drug execution protocols, this Court has held that " 'a one drug protocol [is] also acceptable under the flexible Baze standard ....’” Sepulvado, 729 F.3d at 417 (quoting Thorson v. Epps [Thorson II], 701 F.3d 444, 447 n.3 (5th Cir.2012)).

      . Glossip, 135 S.Ct. at 2733,

      . Id. at 2737 (quoting Baze, 553 U.S. at 50, 52, 128 S.Ct. 1520).

      . Glossip, 135 S.Ct. at 2737 (citations omitted) (internal quotation marks omitted).

      . Id. (quoting Baze, 553 U.S. at 50, 128 S.Ct. 1520) (internal quotation marks omitted).

      . City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).

      . Baxstrom v. Herald, 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).

      . Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir.2012) (quoting Rublee v. Fleming, 160 F.3d 213, 217 (5th Cir. 1998)).

      . Harris v. Hahn, 827 F.3d 359, 365 (5th Cir.2016) (alterations in original) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)).

      . Hines v. Aldredge, 783 F.3d 197, 202-03 (5th Cir.2015) (internal quotation marks omitted) (quoting Madriz-Alvarado v. Ashcroft, 383 F.3d 321, 332 (5th Cir.2004)).

      . Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).

      . Lindquist v. City of Pasadena, 669 F.3d 225, 233 (2012) (citing Olech, 528 U.S. at 564, 120 S.Ct. 1073).

      . Nken, 556 U.S. at 426, 129 S.Ct. 1749.

      . Whitaker v. Livingston, Civil Action H-13-2901, 2016 WL 3199532 (S.D. Tex. June 6, 2016), appeal filed.

      . Id. at *4.

      . Id. at *9.

      . Glossip, 135 S.Ct. at 2737 (citations omitted) (internal quotation marks omitted).

      . Id. (citing Baze, 553 U.S. at 61, 1-28 S.Ct. 1520).

      . Whitaker, 2016 WL 3199532, at *1. The widely represented figure is 80 plus executions nationwide using pentobarbital as the sole drug.

      .We are pointed to no contrary views. The prisoners aver that, because the drug is produced by compounding pharmacies, it could . be contaminated or perhaps be some drug other than pentobarbital. This argument does not close the distance between a mere possibility and a sure or very likely risk that contamination will occur and will bring extreme pain.

      . Appellants contend in their motion that they are not bringing a “class of one” claim. However Appellants assert that, even under rational basis, their claim succeeds. For this reason, and because it received considerable attention in the district court, we examine Appellants' claim for likelihood of success under the "class of one” framework.

      . Olech, 528 U.S. at 565, 120 S.Ct. 1073.

      . Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 603, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008).

      . Id. at 595, 128 S.Ct. 2146.

      . Id. at 596, 128 S.Ct. 2146.

      . Id. at 609, 128 S.Ct. 2146 (quoting Connick v. Myers, 461 U.S. 138, 154, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).

      . "Of course, an allegation that speeding tickets are given out on the basis of race or sex would state an equal protection claim, because such discriminatory classifications implicate basic equal protection concerns. But allowing an equal protection claim on the ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action.” Engquist, 553 U.S. at 604, 128 S.Ct. 2146.

      . Id. at 604, 128 S.Ct. 2146.

        .See Ashcroft v. Iqbal, 556 U.S. 662, 677-84, 129 S.Ct 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.2009).

      . O'Bryan, 691 F.2d at 708.

      . Whitaker, 2016 WL 3199532, at * 1.