      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                              ON MOTION FOR REHEARING



                                     NO. 03-17-00722-CV



Appellants, Raymond Boytim, Hugh Duncan, Walter Schwimmer, the Edward J. Goodman
   Life Income Trust and the Edward J. Goodman Generation Skipping Trust, Jeffrey
Whalen, and Howard Weissberg // Cross-Appellants, Brigham Exploration Company, Ben
   M. Brigham, David T. Brigham, Harold D. Carter, Stephen P. Reynolds, Stephen C.
   Hurley, Hobart A. Smith, Scott W. Tinker, Statoil ASA, and Fargo Acquisition, Inc.

                                               v.

Appellees, Brigham Exploration Company, Ben M. Brigham, David T. Brigham, Harold D.
Carter, Stephen C. Hurley, Stephen P. Reynolds, Hobart A. Smith, Scott W. Tinker, Statoil
 ASA, and Fargo Acquisition, Inc. // Cross-Appellees, Raymond Boytim, Hugh Duncan,
   Walter Schwimmer, the Edward J. Goodman Life Income Trust and the Edward J.
     Goodman Generation Skipping Trust, Jeffrey Whalen, and Howard Weissberg


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
     NO. D-1-GN-11-003205, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                           MEMORANDUM OPINION


              We withdraw our opinion and judgment dated November 20, 2018 and substitute the

following opinion and judgment in their place, and we overrule appellants’ motion for rehearing.

              This is an interlocutory appeal of an order of the trial court denying a motion to

certify a class filed by Plaintiffs—Raymond Boytim, Hugh Duncan, Walter Schwimmer, the Edward

J. Goodman Life Income Trust, the Edward J. Goodman Generation Skipping Trust, Jeffrey Whalen,
and Howard Weissberg (collectively, appellants). See Tex. Civ. Prac. & Rem. Code § 51.014(a)(3)

(permitting interlocutory appeal of order refusing to certify class); Tex. R. Civ. P. 42 (outlining

procedures and requirements for class certification). Appellants filed suit against appellees Brigham

Exploration Company, Ben M. Brigham, David T. Brigham, Harold D. Carter, Stephen C. Hurley,

Stephen P. Reynolds, Hobart A. Smith, Scott W. Tinker, Statoil ASA, and Fargo Acquisition, Inc.

for breach of fiduciary duty in connection with the sale of Brigham Exploration Company (Brigham).

Appellees have filed a conditional cross-appeal “to the extent necessary to preserve all arguments

for affirming the trial court’s order” in the event that this Court disagrees with the particular grounds

reflected in the trial court’s order. For the following reasons, we will affirm the trial court’s order

denying class certification.


                                            BACKGROUND

                This appeal is the third time that the issue of class certification in this dispute has

been before this Court, and because the factual background is summarized in those opinions, we

will recite it only briefly here. See Brigham Expl. Co. v. Boytim, No. 03-15-00248-CV, 2016 WL

3390287 (Tex. App.—Austin June 15, 2016, no pet.) (mem. op.) (Brigham II); Brigham Expl. Co.

v. Boytim, No. 03-13-00191-CV, 2014 WL 4058965 (Tex. App.—Austin Aug. 15, 2014, no pet.)

(mem. op.) (Brigham I); see also Tex. R. App. P. 47.4 (“If the issues are settled, the court should

write a brief memorandum opinion no longer than necessary to advise the parties of the court’s

decision and the basic reasons for it.”).

                The dispute underlying this lawsuit stems from the sale of Brigham, a Delaware

public corporation headquartered in Texas, to Statoil ASA, a Norwegian multinational oil and gas

                                                   2
company, via a cash tender offer of $36.50 per share. Appellants, who allegedly continuously held

some amount of Brigham stock from before the announcement of the acquisition through the close

of the deal, allege that the now-former members of Brigham’s board of directors breached their

fiduciary duties under Delaware law by agreeing to and effectuating the cash-out merger—specifically

by engaging in self-dealing, “consciously disregarding” the company’s value, agreeing to inadequate

consideration for the company, and taking “unreasonable steps to ensure consummation” of the deal

by agreeing to a number of “problematic deal protection devices” in the acquisition agreement.

They also allege that Brigham and Statoil aided and abetted the board members’ breaches of

fiduciary duties in connection with the buyout and that Brigham failed to disclose material

information and disclosed materially false and misleading information to the stockholders in its

required SEC filings issued in conjunction with the merger. Appellees (Defendants below) assert

numerous affirmative defenses including, relevant here, ratification, acquiescence, estoppel, waiver,

and accord and satisfaction.

               Shortly after filing suit, Plaintiffs moved, for the first time, for class certification.

The trial court signed an order granting class certification, but this Court reversed the order on

appeal, determining that the trial plan was insufficient. See Brigham I, 2014 WL 4058965, at *4.

After remand, Plaintiffs renewed their motion, and the trial court entered a subsequent order granting

class certification. This Court again reversed, holding that the class was not sufficiently defined

because it included members who lack standing. See Brigham II, 2016 WL 3390287, at *7. After

a second remand, Plaintiffs again renewed their motion.

               In support of their renewed motion, Plaintiffs submitted a proposed trial plan with

a revised class definition: “All holders of Brigham common stock who held continuously from 7:00

                                                  3
p.m. CST on October 16, 2011 through the effective time of the merger with Statoil.” They also

proposed a subclass: “All holders of Brigham common stock who held continuously from 7:00 p.m.

CST on October 16, 2011 through the effective time of the merger with Statoil and did not

tender their shares in Statoil’s offer, but who were automatically cashed out when the merger was

consummated.” Other than this change to the class definition, Plaintiff’s proposed trial plan

remained largely unchanged from their previous one.

               This third time, however, the trial court denied the motion to certify, on the following

grounds: (1) “the Court cannot determine that the common issues predominate over the individual

issues” and (2) “the Court cannot determine whether class action is superior to individual actions

to achieve a fair and efficient adjudication of the controversy.” See Tex. R. Civ. P. 42(b)(3).

The trial court’s Order Denying Plaintiffs’ Renewed Motion for Certification (Order) recited in

relevant portions:


       The Court cannot determine that the issues common to class members predominate
       over individual issues. . . . [T]he most-effort intensive issues identified . . . cover
       issues both in common among the proposed class members and issues unique to each
       proposed class member. The intentions and actions of the individual class members
       may become a focus of the controversy as many of Defendants’ defenses turn on
       certain actions made by a class member, which could demonstrate agreement or
       ratification of the merger. Because the case may focus on issues individual to the
       class members, the Court cannot determine that the common issues predominate
       over the individual issues.

       The Court cannot determine that class action is the superior method for fair and
       efficient adjudication of the controversy. Plaintiffs argue that, for many class members,
       class action would be the only mechanism to resolve their controversy, given the
       small amount of damages at issue for these class members. Plaintiffs additionally
       attempt to quantify the class members by analyzing the number of shares that may
       qualify the shareholders as class members. Defendants argue that Plaintiffs have not
       shown that the number of potential class members would render traditional litigation

                                                  4
        inefficient or unfair. They also argue that the number of potential shares that would
        qualify shareholders as a class member does not correspond to a number of potential
        class members.

        The number of shares that would fit under the proposed class definition does not
        necessarily correspond to the number of potential class members. Also, in situations
        where class members are holders of large amounts of shares, the value of the class
        action versus individual action is minimized as the potential damages at issue
        become larger. Because the Court cannot determine the estimated number of potential
        class members or the estimated value of a class members’ damages claim, the Court
        cannot determine whether class action is superior to individual actions to achieve a
        fair and efficient adjudication of the controversy.


Appellants contend on appeal that the trial court abused its discretion in denying their motion

to certify.


                                    STANDARD OF REVIEW

                Appellate courts review a class-certification order for abuse of discretion. Bowden

v. Phillips Petrol. Co., 247 S.W.3d 690, 696 (Tex. 2008); Compaq Comput. Corp. v. Lapray, 135

S.W.3d 657, 671 (Tex. 2004). A trial court abuses its discretion if it acts arbitrarily, unreasonably,

or without reference to any guiding principles. Bowden, 247 S.W.3d at 696. A trial court has no

discretion in determining what the law is or in applying the law to the facts, and a clear failure by

the court to correctly analyze or apply the law will constitute an abuse of discretion. Walker v.

Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).

                A party seeking to reverse an order denying class certification must demonstrate that

Rule 42’s requirements are satisfied and that the “trial court’s refusal to certify the class was legally

unreasonable under the facts and circumstances of the case.” Ridgeway v. Burlington N. Santa Fe

Corp., 205 S.W.3d 577, 581 (Tex. App.—Fort Worth 2006, pet. denied). “Actual conformance

                                                   5
with Rule 42 is indispensable, and compliance with the rule must be demonstrated, not presumed.”

Stonebridge Life Ins. Co. v. Pitts, 236 S.W.3d 201, 205 (Tex. 2007).

               “Even if certification would have been proper, a denial may still not be an abuse of

discretion,” see Vinson v. Texas Commerce Bank-Hous., Nat’l Ass’n, 880 S.W.2d 820, 824 (Tex.

App.—Dallas 1994, no writ), because “[s]o long as the trial court acted rationally in the exercise of

its discretion, [a Texas court of appeals] will uphold its ruling denying certification,” City of Aledo

v. Brennan, No. 02-14-00147-CV, 2016 WL 3157354, at *5 (Tex. App.—Fort Worth June 2, 2016,

pet. denied) (mem. op.). The Texas Supreme Court has rejected a “certify now and worry later”

approach. Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 435 (Tex. 2000).


                                           DISCUSSION

               It is undisputed in this case that while Delaware substantive law governs Plaintiffs’

claims, Texas procedural law governs class certification. Brigham II, 2016 WL 3390287, at *5.

Under Texas law, “there is no right to litigate a claim as a class action.” Bernal, 22 S.W.3d at 439.

“Rather, Rule 42 provides only that the court may certify a class action if the plaintiff satisfies

the requirements of the rule.” Id. For this reason, a party seeking to reverse an order denying

class certification faces a “formidable task.” Ridgeway, 205 S.W.3d at 581; see Solotko v.

LegalZoom.com, Inc., No. 03-10-00755-CV, 2013 WL 3724770, at *3 (Tex. App.—Austin July 11,

2013, pet. denied) (mem. op.). Plaintiffs bore the burden of establishing the prerequisites for class

treatment. Lapray, 135 S.W.3d at 672.

               All class actions must satisfy the four threshold requirements contained within Rule

42(a) of the Texas Rules of Civil Procedure: (1) numerosity (“the class is so numerous that joinder

                                                  6
of all members is impracticable”); (2) commonality (“there are questions of law or fact common to

the class”); (3) typicality (“the claims or defenses of the representative parties are typical of the

claims or defenses of the class”); and (4) adequacy of representation (“the representative parties will

fairly and adequately protect the interests of the class”). Tex. R. Civ. P. 42(a)(1)–(4); see Bernal,

22 S.W.3d at 433. In addition to the subsection (a) prerequisites, class actions also must satisfy at

least one of the subdivisions of Rule 42(b). See Tex. R. Civ. P. 42(b) (directing that only certain

kinds of actions can be class actions); Bernal, 22 S.W.3d at 433.

               Appellants assert that, contrary to the determinations made in the trial court’s

Order, this class action satisfies Rule 42(b)(3), which requires (1) common questions of law or fact

to predominate over questions affecting only individual members and (2) class treatment to be

“superior to other available methods for the fair and efficient adjudication of the controversy.”

Tex. R. Civ. P. 42(b)(3); Bernal, 22 S.W.3d at 432. Because it was Plaintiffs’ burden to satisfy each

prerequisite, to prevail on appeal they must show that the trial court’s ruling was erroneous as to

each one. We begin by considering whether the trial court abused its discretion in determining that

Plaintiffs did not meet their burden to establish predominance.


Predominance

               Courts determine whether common issues predominate by identifying the substantive

issues of the case that will control the outcome of the litigation, assessing which issues will

predominate, and determining if the predominating issues are, in fact, those common to the class.

Bernal, 22 S.W.3d at 433–34 (noting that predominance requirement is “one of the most stringent

prerequisites to certification” and is “far more demanding than the commonality requirement”)


                                                  7
(internal quotes omitted); see also Stonebridge Life Ins., 236 S.W.3d at 205 (“Because predominance

is one of the most stringent prerequisites to class-action certification, it is considered first in our

review and must be rigorously applied.”). “The test for predominance is not whether common

issues outnumber uncommon issues but . . . whether common or individual issues will be the object

of most of the efforts of the litigants and the court.” Bernal, 22 S.W.3d at 434 (quoting Central

Power & Light Co. v. City of San Juan, 962 S.W.2d 602, 610 (Tex. App.—Corpus Christi 1998,

pet. dism’d w.o.j.)).

               Significantly here, in its Order the trial court determined that the following are “issues

of law or fact affecting only individual class members”


       •       whether any class members ratified the transaction at issue after the fact and
               whether any such ratification was fairly accomplished;

       •       whether any class members assented to the transaction at issue, by words or
               conduct, during the progress of the transaction;

       •       whether any class members intended their acceptance of the tender or cash-
               out price to be in total satisfaction of their claims relating to the transaction
               at issue;

       •       whether any class members were aware of their claims relating to the
               transaction at issue and intended to waive those claims;

       •       whether any class members engaged in conduct that intentionally or
               unintentionally led Brigham or Statoil to change their position to their
               detriment; and

       •       what damages, if any, each class member suffered as a result of any such
               breach of fiduciary duty or aiding and abetting of any such breach of fiduciary
               duty.




                                                   8
The trial court further determined that the above issues, as well as those relating to whether

Defendants breached their fiduciary duties and aided and abetted such breaches, “will be the object

of most of the efforts of the litigants and the court.” In considering whether the common issues “do

or do not predominate over individual issues,” the court concluded that it “cannot determine that the

issues common to class members predominate over individual ones” because “[t]he intentions and

actions of the individual class members may become a focus of the controversy as many of

Defendants’ defenses turn on certain actions made by a class member, which could demonstrate

agreement or ratification of the merger.”

               The trial court’s Order cited the elements of each of appellees’ affirmative

defenses under Delaware law. See Klaassen v. Allegro Dev. Corp., 106 A.3d 1035, 1047 (Del. 2014)

(acquiescence); Amirsaleh v. Board of Trade, 27 A.3d 522, 529–30 (Del. 2011) (waiver); Nevins v.

Bryan, 885 A.2d 233, 249 (Del. Ch. 2005), aff’d, 884 A.2d 512 (Del. 2005) (equitable estoppel);

CitiSteel USA, Inc. v. Connell Ltd. P’ship, 758 A.2d 928, 931 (Del. 2000) (accord and satisfaction);

O’Malley v. Boris, No. Civ.A-15735-NC, 2002 WL 453928, at *5 n.28 (Del. Ch. Mar. 18, 2002)

(ratification). Common to two of the defenses (waiver and accord and satisfaction) is the element

of the claimant’s intent to waive or satisfy a debt or a claim. See Amirsaleh, 27 A.3d at 529–30;

CitiSteel USA, 758 A.2d at 931. Common to all of the defenses is the element that the claimant

took some action justifying application of the defense or abrogating the claimant’s right to make a

claim. See Klaassen, 106 A.3d at 1047; Amirsaleh, 27 A.3d at 529–30; Nevins, 885 A.2d at 249;

CitiSteel USA, 758 A.2d at 931; O’Malley, 2002 WL 453928, at *5 n.28. It is largely due to these

stockholder-specific elements that the trial court determined that “[t]he intentions and actions of the



                                                  9
individual class members may become a focus of the controversy,” to be determined by the evidence

at trial.

               We begin by noting that the supreme court has specifically condoned the analysis of

the trial court here: “If it is not determinable from the outset that the individual issues can be

considered in a manageable, time-efficient, yet fair manner, then certification is not appropriate.”

Bernal, 22 S.W.3d at 436; see General Motors Corp. v. Bloyed, 916 S.W.2d 949, 959 (Tex. 1996)

(“[T]he trial court [found] that ‘there is uncertainty as to whether a class action could be properly

certified and maintained through trial because there are potentially substantial individual questions

of fact and law and obstacles to the manageability of the action on a class basis.’ If the trial court

believed this to be the case, it should not have certified the class . . . .”). We therefore consider

whether the trial court reasonably concluded that there are potentially substantial individual

questions of law or fact that precluded it from determining whether common issues predominate.

See Ridgeway, 205 S.W.3d at 581.

               Appellants contend that the trial court abused its discretion in making the erroneous

“legal determination” that appellees’ affirmative defenses under Delaware substantive law

“create the need for individual inquiries at trial.” See In re Labatt Food Serv., L.P., 279 S.W.3d 640,

643 (Tex. 2009) (“Under an abuse of discretion standard, we defer to the trial court’s factual

determinations if they are supported by evidence, but we review the trial court’s legal determinations

de novo.”); Walker, 827 S.W.2d at 840 (noting that trial court has no discretion in determining “what

the law is or applying the law to the facts”); see also Lapray, 135 S.W.3d at 672 (noting that trial

courts must determine underlying substantive law prior to certification “as courts can hardly evaluate



                                                  10
the claims, defenses or applicable law without knowing what the law is”). Appellants support their

argument on this issue by asserting that “all individualized affirmative defenses are necessarily

subsumed within their claim for nondisclosure in SEC filings informing stockholders of the proposed

merger” and that Delaware law forecloses any inquiry into individual intent or action of the

stockholders.

                Specifically, appellants argue that if Brigham’s SEC filings adequately disclosed all

material facts, “plaintiffs’ claims for breach of duty fail and defendants are entitled to judgment on

all of plaintiffs’ claims” under Delaware’s business-judgment rule because a majority of disinterested

stockholders approved the merger by tendering their shares. See Corwin v. KKR Fin. Holdings LLC,

125 A.3d 304, 312–13 (Del. 2015) (noting that, “when a transaction is not subject to the entire

fairness standard, the long-standing policy of [Delaware] law has been to avoid the uncertainties

and costs of judicial second-guessing when the disinterested stockholders have had the free and

informed chance to decide on the economic merits of a transaction for themselves”); In re Volcano

Corp. Stockholder Litig., 143 A.3d 727, 746–47 (Del. Ch. 2016) (applying business-judgment rule

presumption to tender offers and holding that acceptance of tender by fully informed, disinterested,

uncoerced majority of stockholders had same “cleansing” effect under Corwin as vote in favor of

merger by fully informed, disinterested stockholder majority); see also In re KKR Fin. Holdings LLC

S’holder Litig., 101 A.3d 980, 1003 (Del. Ch. 2014) (holding that “business judgment standard of

review” applied to merger because it was approved by majority of disinterested shareholders in fully

informed vote, insulating transaction from all claims except ground of waste). On the other hand,

if Brigham’s SEC filings did not disclose all material facts, appellants contend that “Plaintiffs will



                                                 11
prevail on their non-disclosure claims and will negate an essential element of [all of Defendants’]

affirmative defenses—i.e., that Brigham’s shareholders had full knowledge of all material facts

surrounding the acquisition.” Either way, appellants continue, there would be no need to inquire into

individual class members’ “actions and intentions” with respect to appellees’ affirmative defenses.

               However, appellants’ argument presumes that the business-judgement rule is the

applicable standard by which the court will scrutinize Defendants’ actions, but there are other

possible “standards of review” that may apply, depending on development of the facts at trial. See

ACP Master, Ltd. v. Sprint Corp., No. Civ.A-8508–VCL, 2017 WL 3421142, at *16 (Del. Ch.

July 21, 2017) (“To determine whether a corporate fiduciary has breached its duties, a court

examines the fiduciary’s conduct through the lens of a standard of review.”); Calesa Assocs., L.P.

v. American Capital, Ltd., No. Civ.A-10557–VCG, 2016 WL 770251, at *9-11 (Del. Ch. Feb. 29,

2016) (“[A] plaintiff can overcome [the business-judgment rule presumption] by adequately alleging

facts to support a reasonable inference that ‘(1) a controlling stockholder stands on both sides of a

transaction or (2) at least half of the directors who approved the transaction were not disinterested

or independent.’”) (quoting In re KKR, 101 A.3d at 990)). The “entire fairness” standard and the

“gross negligence” standard would hold Defendants to a higher standard than the business-judgment

rule and would not extinguish all of Plaintiffs’ claims even if the SEC filings had disclosed all

material facts. See In re Zale Corp. Stockholders Litig., No. Civ.A-9388–VCP, 2015 WL 6551418,

at *3 (Del. Ch. Oct. 29, 2015) (holding, post-Corwin, that “when reviewing a board of director’s

actions during a merger process after the merger has been approved by a majority of disinterested

stockholders in a fully informed vote, the standard for finding a breach of the duty of care under [the



                                                  12
business-judgment rule] is gross negligence”); In re Orchard Enters., Inc. Stockholder Litig.,

88 A.3d 1, 24 (Del. Ch. 2014) (“When a transaction involving self-dealing by a controlling shareholder

is challenged, the applicable standard of judicial review is entire fairness, with the defendants

having the burden of persuasion.”) (quoting Americas Mining Corp. v. Theriault, 51 A.3d 1213,

1239 (Del. 2012)); see also In re TIBCO Software, Inc. Stockholders Litig., No. Civ.A-10319–CB,

2015 WL 6155894, at *23–24 (Del. Ch. Oct. 20, 2015) (denying defendants’ motion to dismiss after

finding it “reasonably conceivable” that directors had breached duty of care by acting in grossly

negligent manner, despite absence of any indication that merger was not approved of by majority

of disinterested stockholders in fully informed vote); Benihana of Tokyo, Inc. v. Benihana, Inc.,

891 A.2d 150, 192 (Del. Ch. 2005) (noting that when analyzing claim for breach of duty of care,

Delaware courts apply standard of “gross negligence,” which has been defined as “reckless

indifference to or a deliberate disregard of the whole body of stockholders or actions which are

without the bounds of reason”). Whether the entire-fairness standard or the gross-negligence

standard would apply depends on, respectively, whether the challenged actions were taken by

controlling stockholders or were taken in reckless indifference to the body of stockholders. See

In re Orchard Enters., 88 A.3d at 24; Benihana, 891 A.2d at 192; see also Calesa Assocs., 2016

WL 770251 at *9-11 (noting that stockholder is “controlling” if it “owns a majority interest in or

exercises control over the business affairs of the corporation” and that determination of whether

party is controlling is “a highly fact specific inquiry”).

                Plaintiffs’ petition alleges that Defendants have breached their duties of care and

other fiduciary obligations by acting in a “willful, wanton and reckless manner” and engaging in

self-dealing, financially benefitting themselves personally at the expense of stockholders generally

                                                  13
by approving the merger and, thus, operating as “interested” parties. See In re Trados Inc. S’holder

Litig., 73 A.3d 17, 44–45 (Del. Ch. 2013) (noting that entire-fairness standard is Delaware’s “most

onerous” standard and applies when “board labors under actual conflicts of interest,” requiring

defendants to “establish ‘to the court’s satisfaction that the transaction was the product of both fair

dealing and fair price’”) (quoting Cinerama, Inc. v. Technicolor, Inc., 663 A.2d 1156, 1163 (Del.

1995))); see also Rales v. Blasband, 634 A.2d 927, 936 (Del. 1993) (“A director is considered

interested where he or she will receive a personal financial benefit from a transaction that is not

equally shared by the stockholders.”). Plaintiffs’ petition also alleges that Defendants—directors

and corporate officers who approved the challenged transaction—were “controlling” in that they

exercised control over the corporation’s business affairs and, specifically, the structuring and

approval of this transaction. Yet, at this relatively early stage in the proceedings—when the facts

have not yet been tried—we cannot determine which Delaware “standard of review” will apply to

Defendants’ alleged conduct, which determination will affect whether Plaintiffs may proceed on

their claims other than non-disclosure.

               It is possible, under the pleaded facts, that a standard other than the business-

judgment rule will apply, in which case a factfinder could find that appellees’ SEC filings were

not misleading and adequately disclosed all material information and that appellees nonetheless

breached their duty of care or other fiduciary duties to stockholders, in which case appellees’

affirmative defenses would be at issue as to those claims. And in that event, under Delaware law,

the affirmative defenses of waiver and accord and satisfaction raised here would likely require

inquiries at trial as to individual stockholders’ intent when tendering or selling some or all of their

shares, which could potentially turn on a determination of the number of shares that each individual

                                                  14
stockholder tendered as opposed to retained or sold on the open market throughout the applicable

period.1 See Amirsaleh, 27 A.3d at 529–30 (noting that party’s intent to waive known right is element

of waiver); CitiSteel USA, 758 A.2d at 931 (noting that parties’ intent that payment constitute total

satisfaction of debt or claim is element of accord and satisfaction).

                Similarly, the affirmative defenses of acquiescence and ratification, raised here, would

likely require inquiry into individual stockholders’ actions or words—including but not limited to

the tendering of some number of shares and a determination of the number of shares tendered versus

those untendered—that might evidence ratification of or acquiescence in the merger. See Klaassen,

106 A.3d at 1047 (noting that element of acquiescence defense is that claimant freely does something

that amounts to recognition of complained-of act); O’Malley, 2002 WL 453928, at *5 n.28 (noting

that element of ratification defense is that plaintiff consented to complained-of act). Because the

proposed class members likely comprise a variety of shareholders exhibiting multiple combinations

of shares that were sold, retained, and tendered—in a variety of quantities and timelines—it is

probable that the different proposed class members’ intentions and actions with respect to their

shares would differ widely from one class member to another and, thus, require individual inquiries.2

       1
          The class definition proposed by Plaintiffs comprises stockholders who held at least one
share continuously throughout the period from the time of the merger announcement until the
effective time of the merger and who tendered (a) at least one of their shares (while retaining at least
one), (b) all but one of their shares, and (c) any proportion of their shares between those extremes;
the proposed sub-class comprises stockholders who held at least one share continuously but did not
tender any of their shares.
       2
          For instance, even just the six named plaintiffs appear to each have a unique shareholding
narrative, as best we can glean from their affidavits: one of the plaintiffs may have sold some or
tendered some of its shares, one of the plaintiffs neither sold nor tendered any of his shares, three of
the plaintiffs tendered none of their shares but may have sold some of their shares, and one of the
plaintiffs tendered none of his shares but sold some shares.

                                                  15
Moreover, trial of appellees’ affirmative defenses will likely require individual inquiries into other

actions taken by shareholders—apart from selling, retaining, or tendering shares—that might

demonstrate acquiescence, ratification, waiver, accord and satisfaction, or the application of

equitable estoppel.

                If the factfinder finds that the SEC filings did not disclose all material facts, such

finding does not necessarily obviate Defendants’ ability to assert their affirmative defenses because

any individual plaintiff may have obtained material facts or knowledge about the transaction

through other sources, requiring individual inquiries into potential class members’ knowledge and

intentions. On this record, and given the deferential standard by which we must review orders

denying certification, we cannot say that the trial court acted unreasonably in concluding that the

proposed subclass did not meet the predominance requirement and in refusing to certify the class

on that ground. See Ridgeway, 205 S.W.3d at 581 (noting that appellant seeking to reverse order

denying certification must demonstrate that Rule 42’s requirements are met and that trial court’s

refusal to certify was “legally unreasonable” under facts and circumstances); Domizio v. Progressive

Cty. Mut. Ins. Co., 54 S.W.3d at 867, 876 (Tex. App.—Austin 2001, pet. denied) (“The grant or

denial of class certification will be upheld on appeal so long as the trial court acted rationally in

the exercise of its discretion.”).


Superiority

                In addition to Plaintiffs’ failure to satisfy the predominance prerequisite, we

additionally conclude that the trial court did not abuse its discretion in finding that it “cannot

determine whether class action is superior to individual actions to achieve a fair and efficient

                                                 16
adjudication of the controversy.” See Tex. R. Civ. P. 42(b)(3); Union Pac. Res. Grp., Inc. v.

Hankins, 51 S.W.3d 741, 754 (Tex. App.—El Paso 2001), rev’d on other grounds, 111 S.W.3d 69

(Tex. 2003) (noting that superiority analysis focuses on whether “the benefits of class-wide

resolution of common issues outweigh any difficulties that may arise in the management of the

class”). Appellants contend on appeal that the trial court “ignored pertinent superiority factors” in

making its determination, instead focusing solely on the factor of whether “class members have an

interest in resolving common issues by class action.” See Hankins, 51 S.W.3d at 754–55 (listing

factors that trial court “may” consider). The factors that appellants contend the trial court “ignored”

are (a) whether class members will benefit from the discovery that has already been completed,

thereby eliminating duplication of effort; (b) whether the trial court has already spent substantial time

and effort becoming familiar with the issues of the case, see id.; (c) the desirability of concentrating

the litigation in a particular forum; and (d) the difficulties to be encountered in the management of

the action, see Tex. R. Civ. P. 42(b)(3)(C), (D). However, Plaintiffs referenced only one factor in

their sole superiority argument before the trial court:


        Given the relatively small amount of dollars which may be at issue for many class
        members, the class action mechanism is the only means by which a claim challenging
        defendants’ actions will ever be adjudicated. In this case, pursuing individual actions
        would be prohibitively expensive for the vast majority of class and subclass members
        in the instant action.


Plaintiffs did not provide any specifics or cite to any evidence supporting this argument.3


       3
          Appellants refer to a one-page chart in the record purporting to show the number of
Brigham shares held by approximately 30 investment managers “continuously” from September 30,
2011, to December 31, 2011. However, the date range for the purported “continuous” holding of

                                                   17
                  On appeal, appellants cite to the record as indicating the “immense” amount of

discovery that has already occurred, the desirability of a Texas forum, and the familiarity of the trial

court with the facts and claims at issue. While some of these assertions may be true, the trial court

was within its discretion to weigh the sole factor on which Plaintiffs focused their effort below—

whether class members have an interest in resolving common issues by class action—against class

certification. There was a lack of evidence demonstrating the estimated number of potential class

members and the estimated value of potential class members’ damages. As the trial court observed,

Plaintiffs’ argument was premised on assumptions that Plaintiffs have not demonstrated to be true

or even likely.

                  For instance, evidence in the record shows that there was an extraordinarily high

trading volume during the tender period, which makes it unclear how many shareholders, if any, will

fall into the category of “holding continuously” throughout the tender period. The evidence also fails

to show how many of those continuously holding shareholders, if any, will be those who held only

a small number of shares and would, therefore, face prohibitively expensive individual lawsuits.

From the evidence in the record, it is equally possible that there are only a small number of

shareholders who meet the class definition and that those few potential class members owned a large

number of shares.4 Additionally, while Plaintiffs assert that no shareholders other than Plaintiffs


shares reflected in the chart is different from the date range provided in the class definition, and there
is no guarantee from the document that the shares were held on behalf of the same investor or were
not sold and then purchased later within the reflected period.
        4
          Evidence shows that there were approximately 117 million outstanding shares of Brigham
stock prior to announcement of the merger and that the total shares tendered numbered approximately
109 million, leaving approximately 8 million shares untendered. There is no evidence showing how
many potential class members owned those 8 million shares or how many of the shares sold on the

                                                   18
have filed suit, demonstrating that a number of potential class members are small shareholders for

whom litigation is too expensive, that fact is equally consistent with the possibility that most

shareholders are happy with the merger price. On this record, we cannot conclude that the trial court

acted unreasonably in concluding that “it cannot determine whether class action is superior to

individual actions to achieve a fair and efficient adjudication of the controversy,” which is a ground

independent of the predominance prerequisite on which we must affirm the trial court’s Order.


                                          CONCLUSION

               We conclude that the trial court did not abuse its discretion in denying appellants’

motion for class certification. Accordingly, we affirm the trial court’s Order denying Plaintiffs’

renewed motion for class certification.



                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Rose, Justices Puryear and Bourland

Affirmed on Motion for Rehearing

Filed: December 28, 2018




open market during the tender period, which would preclude a shareholder from meeting the
“holding stock continuously” class definition as to the sold shares.

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