                      REVISED, OCTOBER 5, 2000

                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT


                      _______________________

                            No. 99-40533
                      _______________________


STAN SPENCE, Individually and on behalf of others similarly
situated; WILLIAM HATFIELD, Individually and on behalf of others
similarly situated; JOHN JOHNSON, Lieutenant, Individually and on
behalf of others similarly situated,

                                                Plaintiffs-Appellees,

JOHN P. KELLOGG,

                                    Intervenor/Plaintiff-Appellee,

                               versus

GLOCK, GES.m.b.H., an Austrian limited liability company, GLOCK,
INC., a Georgia Corporation

                                            Defendants-Appellants.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
_________________________________________________________________
                         September 27, 2000


Before JONES, DUHÉ, and WIENER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

          Defendants appeal the district court’s certification of

a nationwide class of owners of Glock pistols who allege that their

pistols are defective in several respects.        The district court

certified the class after concluding that Georgia law should be
applied to all the class members’ claims.             Because the district

court erred in its choice of law analysis, and thus abused its

discretion on the issue of predominance under Rule 23(b)(3), we

reverse the certification.

                       FACTS & PROCEDURAL HISTORY

            In this class action case, purchasers of particular

models of Glock handguns manufactured between 1986 and 1997 assert

multiple causes of action alleging that Glock guns suffer from an

alleged design defect that causes the guns to jam and/or discharge

accidentally.1      Plaintiffs’ theories of liability include: 1)

design defect; 2) failure to warn; 3) fraud, deceit and material

misrepresentations of fact; 4) negligence; 5) breach of express and

implied warranties; and 6) negligent misrepresentation.2                    The

plaintiffs seek damages for economic loss, based on the diminished

value of their pistols and the need for repairs, as well as

punitive damages and attorneys’ fees.

            Putative class members number, at a minimum, 50,000, and

reside in all fifty states and the District of Columbia.             The named

plaintiffs are all residents of Texas who own various Glock model

handguns. Defendant-appellant Glock Ges.m.b.H. (“Glock Europe”) is

the Austrian corporation that manufactures Glock model pistols.


      1
            The alleged design defects concern the firing pin safety system and
the ejection port of the gun. Plaintiffs-appellees claim that both defects
increase the likelihood that the gun will jam. The firing pin safety defect can
allegedly also cause accidental discharges.
      2
            The parties agree that these claims sound both in tort and contract.

                                       2
Glock, Inc. (“Glock USA”) is a Georgia corporation that assembles

and distributes Glock pistols in the United States and Canada.

Glock Austria designs the guns in Austria and manufactures the

parts there.     The parts are then shipped to Glock USA in Georgia,

where they are assembled, tested for quality control and sent to

distributors     across      the   United       States.    Glock   USA   sells   its

products to law enforcement dealers and wholesale distributors

throughout the United States, who then sell the products to retail

handgun dealers for sale to the public.

            In    the     district     court,        plaintiffs     sought     class

certification     of    an   opt-out   class       under   Rule    23(b)(3).     The

district court referred Plaintiffs’ Motion for Class Certification

to a magistrate judge who issued a recommendation to certify the

class. The district court accepted the recommendation and rejected

the defendants’ objections, reasoning that Georgia law applied by

virtue of Glock USA’s contacts with that state and Georgia’s

regulation of Glock USA, and that therefore the class satisfied

Rule 23(b)(3)’s predominance requirement. The Glock defendants now

appeal, arguing principally that the district court’s choice of

Georgia law was incorrect and that the class should not have been

certified because the proper choice of law precludes a finding that

common questions of law predominate.3


      3
            Appellants also appeal the certification on the grounds that
individual factual issues defeat predominance and that class certification is not
superior to individual adjudication in this case. Because we decide the appeal
on choice of law grounds, we decline to address these contentions.

                                            3
                                   DISCUSSION

            A   district   court    must   rigorously    analyze   Rule    23's

prerequisites before certifying a class.           See General Tel. Co. v.

Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740

(1982); Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir.

1996). The district court has broad discretion to certify a class,

which it must exercise within the confines of Rule 23.                See Gulf

Oil Co. v. Bernard, 452 U.S. 89, 100, 101 S.Ct. 2193, 2200, 68

L.Ed.2d 693 (1981); Castano, 84 F.3d at 740.              The party seeking

certification bears the burden of proof.           See Castano, 84 F.3d at

740; Horton v. Goose Creek Ind. Sch. Dist., 690 F.2d 470, 486 (5th

Cir. 1982), cert. denied, 463 U.S. 1207, 103 S.Ct. 3536, 77 L.Ed.2d

1387 (1983). This court reviews a class certification for abuse of

discretion, but if the district court has committed legal error in

the predominance inquiry, reversal is required.             Castano, 84 F.3d

at 740.

            Rule 23 of the Federal Rules of Civil Procedure sets

forth several conditions that must be met for a proposed class of

plaintiffs to be certified.         Appellants do not focus on whether or

not the proposed class has met the initial requirements of Rule

23(a).4   Instead, they contend that the proposed class has not met



      4
             Rule 23(a) requires that a class: 1) be so numerous that joinder is
impractical; 2) have common questions of law or fact; 3) have representative
parties with typical claims or defenses; and 4) have representative parties that
will fairly and adequately protect the class’s interest. See Fed.R.Civ.P. 23(a).

                                       4
the requirements of Rule 23(b)(3).            Rule 23(b)(3) requires that

questions of law or fact common to the members of the class

predominate over any questions affecting only individual members,

and that a class action is superior to the individual adjudication

of claims.    See Fed.R.Civ.P. 23(b)(3).

            The district court’s predominance finding depends on its

choice of law analysis that held Georgia law applicable to all the

claims of all the plaintiffs.              Appellants assert that, to the

contrary, the laws of 51 jurisdictions apply in this class action.

If appellants are correct, the variations in the laws of the states

and District of Columbia “may swamp any common issues and defeat

predominance.”      Castano, 84 F.3d at 741.5        The threshold question

for this court, therefore, is whether the district court conducted

a proper choice of law analysis and correctly decided that Georgia

law controlled.      See Castano, 84 F.3d at 741.

            In diversity cases, federal courts are obliged to apply

the choice of law rules of the forum state.                See Klaxon Co. v.

Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-

22, 85 L.Ed. 1477 (1941).        Texas courts use the ALI Restatement’s

“most significant relationship test” for all choice of law cases


      5
            See also Georgine v. Amchem Products, Inc., 83 F.3d 610, 627 (3d Cir.
1996) (“Because we must apply an individualized choice of law analysis to each
plaintiff’s claims ... the proliferation of disparate factual and legal issues
is compounded exponentially”) aff’d 521 U.S. 591-117 S.Ct. 2231 (1997); In re Am.
Med. Sys., 75 F.3d 1069, 1085 (6th Cir. 1996) (“If more than a few of the laws
of the fifty states differ, the district judge would face an impossible task of
instructing a jury on the relevant law, yet another reason why class
certification would not be the appropriate course of action”).

                                       5
except those contract cases in which the parties have agreed to a

valid choice of law clause.        See Duncan v. Cessna Aircraft Co., 665

S.W.2d 414, 421 (Tex. 1984); Gutierrez v. Collins, 583 S.W.2d 312,

318   (Tex.    1979)   (adopting    the    most   significant    relationship

methodology for tort choice of law issues).            This Court reviews a

district court’s choice of law determination de novo.               See In re

Air Disaster at Ramstein Air Base, Germany, 81 F.3d 570, 576 (5th

Cir. 1996).6

              Section 6 of the ALI Restatement (Second) of Conflict of

Laws delineates the general principles that inform a choice of law

determination.      Section 6 states:

      (1) A court, subject to constitutional restrictions, will
      follow a statutory directive of its own state on choice of
      law.
      (2) When there is no such directive, the factors relevant to
      the choice of the applicable rule of law include
           (a) the needs of the interstate and international
      systems,
           (b) the relevant policies of the forum,
           (c) the relevant policies of other interested states and
      the relative interests of those states in the determination of
      the particular issue,
           (d) the protection of justified expectations,
           (e) the basic policies underlying the particular field of
      law,
           (f) certainty, predictability and uniformity of result,
      and
           (g) ease in the determination and application of the law
      to be applied.



      6
            Texas also requires that a choice of law determination be done on an
issue by issue basis. See Duncan, 665 S.W.2d at 421. The district court erred
in not conducting a complete issue by issue analysis. But overarching this error
is its fundamentally incorrect method of choice of law determination for each
issue that it considered. Therefore, this opinion will not proceed on a strict
issue by issue basis.

                                       6
In later sections, the Restatement individually addresses choice of

law analysis for a variety of issues.

          Section 145 concerns choice of law for issues in tort and

states that:

     (1) The rights and liabilities of the parties with respect to
     an issue in tort are determined by the local law of the state
     which, with respect to that issue, has the most significant
     relationship to the occurrence and the parties under the
     principles in § 6.
     (2) Contacts to be taken into account in applying the
     principles of § 6 to determine the law applicable to an issue
     include:
          (a) the place where the injury occurred,
          (b) the place where the conduct causing the injury
     occurred,
          (c) the domicile, residence, nationality, place of
     incorporation and place of business of the parties, and
          (d) the place where the relationship, if any, between the
     parties is centered.
     These contacts are to be evaluated according to their relative
     importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws §145.       Courts should

evaluate these contacts for their quality, not their quantity. See

Gutierrez, 583 S.W.2d at 319.

          Georgia’s contacts with the case are as follows.   First,

the guns at issue are imported, assembled, and tested for quality

control in Georgia.   Second, Glock USA is incorporated and has its

principal place of business in Georgia and is regulated under

Georgia firearm law in order to comply with BATF certification.

Third, Glock distributes its products from Georgia and receives

warranty cards there.   Fourth, the alleged ejection port defect is

corrected in Georgia.   Of these contacts, only one is mentioned in


                                 7
Section 145 -- Glock USA’s domicile in Georgia -- and it is offset

by the fact that the plaintiffs are domiciled all over the country.

          The district court also counted Georgia as the place of

injury and the place where the conduct causing the injury occurred.

In regard to its description of Georgia as the place of injury, the

district court was clearly wrong.      Plaintiffs allege that they

suffered economic loss because of the defective design of the guns

they bought.   The manufacture of allegedly defective goods is no

wrong unto itself.   See Crisman v. Cooper Ind., 748 S.W.2d 273, 277

(Tex. App. 1988).    Instead, the economic injury occurred when and

where plaintiffs bought the guns.       Furthermore, the district

court’s conclusion that Georgia is the place where the conduct

causing the injury occurred is also suspect.   The plaintiffs claim

that the defect is a design defect, making it more logical to

conclude that the conduct causing the injury occurred in Austria,

where the gun was designed and its parts manufactured, than in

Georgia, where the guns were merely assembled.    The argument that

Georgia is the locus of the conduct causing the injury is more

plausible in regard to plaintiffs’ fraud-related claims.

          In short, while the actual contacts with Georgia are

certainly enough to suggest that Georgia has more than a negligible

relationship to the tort issues in this case, they are not so

overwhelming that it is clear that Georgia has the most significant

relationship to those issues.    To answer that question, one must



                                  8
compare Georgia’s contacts and the state policies those contacts

implicate with those of the 50 other interested jurisdictions.

            The central problem with the district court’s opinion is

its failure to make this comparison.         Instead, the district court

essentially counted the contacts Glock had with Georgia, considered

Georgia’s regulation of Glock and concluded from those factors that

Georgia had the most significant relationship to the tort issues.

Critically, the court did not examine the relationship of other

interested states -- for example, the states where class members

bought their guns -- to the tort issues, as Section 6 requires.           If

it had, it would have recognized that this case implicates the tort

policies of all 51 jurisdictions of the United States, where

proposed class members live and bought Glock pistols.

            This Court finds instructive the opinion in In re Ford

Motor Co. Bronco II Product Liability Litigation, 177 F.R.D. 360

(E.D.La. 1997).    In that case, plaintiffs argued that Michigan law

controlled    their   claims   that   Ford   had   knowingly   marketed   a

defective automobile and fraudulently concealed the truth from the

public, thereby causing plaintiffs economic loss as owners of the

car.    The court rejected this contention, stating:

       [T]he choice of law determination is a function of the
       individual defendant, plaintiff, and the circumstances of the
       claim. What is required is a comparative analysis of Michigan
       law and the law and policies of each state with which the
       claim has contacts. As far as can be discerned at this time,
       all 51 jurisdictions have some contact with the claims.... The
       policies of each state with contacts must be examined.
       Plaintiff has not undertaken this analysis.

                                      9
Id. at 370 - 71.          Although that case was decided under Louisiana

law, Louisiana follows similar comparative choice of law principles

to those in the Restatement.               Oliver v. Davis, 679 So.2d 462, 468

(La. Ct. App. 1996).              Texas’s adoption of the most significant

relationship test requires that the policies of each state with

contacts be examined,7 yet the plaintiffs have not undertaken this

analysis.

               The burden of proof lies with the plaintiffs; in not

presenting a sufficient choice of law analysis they have failed to

meet       their   burden    of     showing   that   common   questions   of    law

predominate.        See Castano, 84 F.3d at 741.          The district court is

required      to   know     which    law   will   apply   before   it   makes   its

predominance determination. See id. The district court here could

not discharge its duty because plaintiffs did not supply adequate

information on the policies of other interested states relevant to

the choice of law.          Nor did the plaintiffs provide the court with

a sub-class plan in case the court disagreed that Georgia law

controlled.        See Allison v. Citgo Petroleum Corp., 151 F.3d 402,

420 n. 15 (5th Cir. 1998) (where plaintiffs did not offer a




       7
         See Restatement (Second) of Conflict of Laws §6 cmt. f (“In determining
a question of choice of law, the forum should give consideration not only to its
own relevant policies ... but also to the relevant policies of all other
interested states.”); Restatement (Second) of Conflict of Laws §145 cmt. e
(“[T]he forum should give consideration to the relevant policies of all
potentially interested states.”).

                                            10
workable subclass plan they failed to meet their certification

burden).

            The plaintiffs’ attempt to finesse the choice of law by

omitting comparison of laws other than Georgia’s is surprising in

light of governing authority.          Castano is predicated squarely on

the court’s duty to determine whether the plaintiffs have borne

their burden where a class will involve multiple jurisdictions and

variations in state law.        84 F.3d at 744.       Before Castano, then-

Judge Ginsburg wrote that class action plaintiffs must provide an

“extensive analysis” of state law variations to reveal whether

these pose “insuperable obstacles” to certification. Walsh v. Ford

Motor Co., 807 F.2d 1000, 1017 (D.C. Cir. 1986), cert. denied, 107

S.Ct. 3188 (1987).      Plaintiffs’ failure to carry their burden, and

the district court’s unwillingness to hold plaintiffs to their

proof, have resulted in a critical legal deficiency -- insufficient

evidence of predominant common legal issues.8




      8
             The insuperability of this problem, if plaintiffs had met their
burden, is suggested in another recent case, where a district court refused to
certify a class action case against Ford Motor company based on claims arising
in 51 jurisdictions: “Defendants have provided a comprehensive appendix detailing
the variations among the states’ laws on strict liability, breach of express and
implied warranty, fraud, and consumer protection acts. . . . For example,
regarding plaintiffs’ strict liability claim, alone, defendants point to at least
five different approaches to defining a “design defect;” differing positions as
to whether the “economic loss doctrine” precludes strict liability actions;
differing views as to whether physical harm is a prerequisite to bringing a cause
of action; different warning requirements; and different affirmative defenses.
Defendants have likewise demonstrated a multitude of different standards and
burdens of proof with regard to plaintiffs’ warranty, fraud and consumer
protection claims.” In re: Ford Motor Company Ignition Switch Products Liability
Litigation, 174 F.R.D. 332, 350-51 (D.N.J. 1997).

                                       11
            If the district court had performed a proper choice of

law   analysis,     it   likely     would     not    have    found      Georgia    law

controlling on the tort issues in this nationwide class action.9

As was discussed earlier, the place of injury was not Georgia, but

the place of purchase.         The place where the conduct causing the

injury occurred is more likely to be Austria than Georgia, at least

for the non-fraud claims.          Also, the class members are domiciled

and likely bought their guns in all 50 states and the District of

Columbia.     All these 51 relevant jurisdictions are likely to be

interested    in    ensuring      that   their      consumers     are     adequately

compensated    in   cases   of    economic     loss,10      but   many    will    have

different conceptions of what adequate compensation is.                    Georgia’s

laws may not provide sufficient consumer protection in the view of




      9
             The district court also may well not have found Georgia law applied
if it had performed an adequate choice of law analysis for the contracts issue.
Section 188 of the Restatement sets forth contacts to consider in regard to a
contract issue. They include: 1) the place of contracting; 2) the place of
negotiation; 3) the place of performance; 4) the location of the contract’s
subject matter; and 5) the domicile, residence, place of incorporation and place
of business of the parties. See Restatement (Second) of Conflict of Laws §188.
Glock USA is incorporated and has its principal place of business in Georgia, but
plaintiffs are domiciled in the 50 states and the District of Columbia. The
place of contracting would presumably be the place of purchase; the location of
performance and the location of the subject matter of the contract would be the
place where the gun is used; and the place of negotiation would not apply.
Related state policies of all the interested states would also, of course, need
to be examined for a thorough approach to this issue.
      10
            See, e.g., In re Ford Motor Co. Ignition Switch Products Liability
Litigation, 174 F.R.D. 332, 348 (D.N.J. 1997) (“Each plaintiff’s home state has
an interest in protecting its consumers from in-state injuries caused by foreign
corporations and in delineating the scope of recovery for its citizens under its
own laws.”).

                                         12
other       states.11       Indeed,    as      the   home     state    of     the

assembler/distributor, Georgia’s policies might tend to favor those

interests over consumers’.         For such reasons, several courts that

have    confronted      similar   situations    in   other   multistate     class

actions have refused to find a single state’s law controlling.12

              Appellees argue that, in design defect cases, the most

important factors are where the product was manufactured and where

it was placed in the stream of commerce, and that those factors

point toward Georgia.        This argument has several problems.          First,

in most of the cases that appellees cite for support, the location

of the accident was either fortuitous or the sole connection with

a particular state, so the place of injury was not given the weight

it normally would have in a choice of law issue in tort.                      See

Mitchell v. Lone Star Ammunition, 913 F.2d 242, 249-50 (5th Cir.

1990) (recognizing that North Carolina’s only contact with the case

was as the place of injury); In re Air Disaster at Ramstein Air

Base, Germany, 81 F.3d 570, 577 (5th Cir. 1996) (stating that the

place of injury is fortuitous in this air crash case); In re Air

Crash Disaster at Mannheim, Germany, 769 F.2d 115 (3d Cir. 1985)



      11
            In fact, defendants-appellants point out several doctrines that might
limit recovery in Georgia in this case: the economic loss doctrine, lack of
privity, limits on punitive damages, among others.
       12
            See, e.g., In re Ford Motor Co. Ignition Switch Products, 174 F.R.D.
at 348; Feinstein v. Firestone Tire & Rubber Co., 535 F.Supp. 595 (S.D.N.Y.
1982); Poe v. Sears, Roebuck & Co., 1998 WL 113561 (N.D.Ga. 1998). But see Lerch
v. Citizens First Bancorp, Inc., 144 F.R.D. 247, 256-57 (D.N.J. 1992); Elkins v.
Equitable Life Ins. Co. of Iowa, 1998 WL 133741, *17 (M.D.Fla. 1998).

                                       13
(concerning a helicopter crash).         Generally, the place of injury

(i.e., the place of purchase) in this class action case will

neither be fortuitous nor the only contact with a particular state.

For example, many class members will have bought their guns where

they live, and the guns will have been shipped for sale in the same

state.

          Second, the products in this case were designed in

Austria, and all component parts were manufactured there, and,

following assembly in Georgia, each gun entered the stream of

commerce in the state where it was shipped to be sold.                     See

Crisman, 748 S.W.2d at 277 (finding that a trailer manufactured in

Illinois entered the stream of commerce in Florida).                Thus, even

the place of manufacture and the place where the product entered

the stream of commerce do not point unmistakably to Georgia.

          Third, appellees’ argument understates the importance

that place of injury plays in a tort choice of law analysis.               The

comment to Section 145 emphasizes this:

     In the case of personal injuries or injuries to tangible
     things, the place where the injury occurred is a contact that,
     as to most issues, plays an important role in the selection of
     the state of the applicable law.... This contact likewise
     plays an important role in the selection of the state of the
     applicable law in the case of other kinds of torts.


Restatement   (Second)   of   Conflict    of   Laws   §145   cmt.    e.    The

exception to this guideline comes where the place of injury is

fortuitous or bears little relation to the occurrence and the


                                   14
particular issue.      See id.    In an economic loss case, that cannot

be said to be true.          Furthermore, in a Texas case in which

plaintiffs claimed tortious financial harm, the El Paso Court of

Appeals considered the place of injury an important factor.                See

CPS Int’l Inc. v. Dresser Ind., Inc., 911 S.W.2d 18, 29 (Tex. App.

1995).     Here, the fact that the place of injury was the place of

purchase points to all 51 jurisdictions.

            Nevertheless, the class’s contract claims (breach of

express and implied warranty) would still be controlled by Georgia

law if the district court correctly interpreted a choice of law

provision in Glock USA’s instruction manual.13 Under Texas law, the

parties’ choice of law provision governs contract claims within its

scope;14 where such a provision exists, courts are not obliged to

perform a most significant relationship test.                In this case,

however, the instruction manual’s choice of law provision does not

reach the contract issues.          The manual states: “For all sales

contracts with GLOCK Inc., place of jurisdiction shall be Atlanta,

GA and Georgia State Law shall be applicable.”          By its terms, class

members are not parties to this choice of law provision, for they

had no sales contracts with Glock USA.         Instead, they bought their

guns from distributors who had bought them from Glock USA.                 The



      13
            The court also stated perfunctorily that even if it used the
Restatement Sections 187 and 188, the provisions for choice of law for contract
issues, to determine the applicable law, it would still apply Georgia law.
      14
            See Duncan, 665 S.W.2d at 421.

                                      15
language    on   the   warranty     registration   card    to   some   degree

buttresses this conclusion:         Glock’s limited warranty states that

some of its provisions may not apply in some states.

            Since the putative class members are not parties to the

choice of    law   provision   in    the   instruction    manual,   the   most

significant relationship analysis determines the controlling law.

As with the tort claims, the district court did not perform an

adequate choice of law analysis, and the plaintiffs did not supply

adequate information with which to conclude that the predominance

requirement of Rule 23(b)(3) was satisfied.

                                  CONCLUSION

            By not providing the district court with a sufficient

basis for a proper choice of law analysis or a workable sub-class

plan, the plaintiffs failed to meet their burden of demonstrating

that common questions of law predominate.          Therefore, the district

court abused its discretion in certifying the class and the class

is hereby decertified.

            REVERSED and RENDERED.




                                      16
17
