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govinfo:USCOURTS-wvnd-1_17-cv-00088-5
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JACKLIN ROMEO,
Individually and on behalf
of others similarly situated;
SUSAN S. RINE,
Individually and on behalf
of others similarly situated;
DEBRA SNYDER MILLER,
Individually and on behalf
of others similarly situated,
Plaintiffs,
v. CIVIL ACTION NO. 1:17CV88
(Judge Keeley)
ANTERO RESOURCES CORP.,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
In this breach of contract class action, the plaintiffs,
Jacklin Romeo (“Romeo”), Susan S. Rine (“Rine”), and Debra Snyder
Miller (“Miller”) (collectively, “the Plaintiffs”), individually
and on behalf of others similarly situated, allege that the
defendant, Antero Resources Corporation (“Antero”), breached its
obligations under the royalty provisions of two types of lease
agreements by improperly deducting post-production costs and
failing to pay royalties based upon the price received at the point
of sale (Dkt. No. 31).
Case 1:17-cv-00088-TSK Document 367 Filed 06/16/21 Page 1 of 24 PageID #:
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ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
2
Pending is the Plaintiffs’ motion to approve sending the Class
Notice to additional class members (Dkt. No. 342). For the reasons
discussed, the Court GRANTS-IN-PART and DENIES-IN-PART the motion.
I. BACKGROUND
A. Factual Background
Each of the Plaintiffs alleges ownership of an oil and gas
interest in Harrison County, West Virginia, subject to an existing
oil and gas lease under which the lessee’s interest has been
assigned to Antero (Dkt. No. 31 at 2).
Romeo is the assignee of a portion of the lessors’ interest
under a March 14, 1984 lease agreement between lessors Jessie J.
Nixon, Betty Nixon, Mary Alice Vincent, and Hubert L. Vincent, and
lessee Clarence W. Mutschelknaus (“the Mutschelknaus Lease”). Id.
at 6. Antero acquired the lessee’s rights and obligations sometime
prior to January 1, 2009. The royalty provision of the
Mutschelknaus Lease contains the following language:
In consideration of the premi ses, the said [Lessee]
covenants and agrees: First, to deliver monthly to the
credit of the Lessors, their heirs or assigns, free of
costs, in a pipeline, to which Lessee may connect its
wells, Lessors’ proportionate share of the equal one-
eighth (1/8) part of all oil produced and saved from the
leased premises; and second, to pay monthly Lessor’s
proportionate share of the one-eighth (1/8) of the value
at the well of the gas from each and every gas well
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ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
3
drilled on said premises, the product from which is
marketed and used off the premises, said gas to be
measured at a meter set on the farm, and to pay monthly
Lessors’ proportionate share of the one-eighth (1/8) of
the net value at the factory of the gasoline and other
gasoline products manufactured from casinghead gas.
Id.
Rine and Miller are assignees of portions of the lessors’
interest under an October 19, 1979 lease between lessors Lee H.
Snyder, and Olive W. Snyder, and lessee Robert L. Matthey, Jr.
(“the Matthey Lease”). Id. at 6-7. Antero was assigned the lessee’s
interest sometime prior to July 17, 2012. Id. at 7-8. The royalty
provision of the Matthey Lease contains the following language:
(a) Lessee covenants and agrees to deliver to the
credit of the Lessor, his heirs or assigns, free of cost,
in the pipe line to which said Lessee may connect its
wells, a royalty of one-eighth (1/8) of native oil
produced and saved from the leased premises.
(b) Lessee covenants and agrees to pay Lessor as
royalty for the native gas from each and every well
drilled on said premises producing native gas, an amount
equal to one-eighth (1/8) of the gross proceeds received
from the sale of the same at the prevailing price for
gas sold at the well, for all native gas saved and
marketed from the said premises, payable quarterly.
Id. at 8-9.
On May 15, 2017, the Plaintiffs filed a class action complaint
asserting a breach of contract claim related to Antero’s alleged
Case 1:17-cv-00088-TSK Document 367 Filed 06/16/21 Page 3 of 24 PageID #:
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ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
4
failure to pay them a full 1/8th royalty payment for their natural
gas interests. Gas produced under the leases at issue (the “Class
Leases”) consists of “wet gas” (saturated with liquid hydrocarbons
and water) that may be processed to obtain marketable “residue
gas.” This wet gas also contains valuable liquid hydrocarbon
components (ethane, butane, isobutane, propane, and natural gas)
(“NGLs”) that may be extracted and fractionated prior to sale.
The Plaintiffs contend that, because neither of the Class
Leases royalty provisions expressly permits post-production
deductions, West Virginia law imposes a duty upon Antero to
calculate royalties based on the price it receives from third
parties for the residue gas and NGLs without deductions. They
assert that despite this duty Antero has deducted various post-
production costs for residue gas and NGLs from their royalties.
B. Relevant Procedural History
After Antero produced 394 redacted leases that potentially
met the Class definition, the Plaintiffs moved to certify this
case as a class action (Dkt. Nos. 100, 212 at 14-15). To establish
that their proposed class met the numerosity requirement of Federal
Rule of Civil Procedure 23, they attached a list of 268 leases
Case 1:17-cv-00088-TSK Document 367 Filed 06/16/21 Page 4 of 24 PageID #:
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ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
5
meeting the Class definition (“the Plaintiffs’ lease schedule”)
(Dkt. No. 101-2).
On March 23, 2020, pursuant to Federal Rule of Civil Procedure
23(b)(3), the Court entered a Class Certification Order, which
defined the following Class:
Persons and entities, including their respective
successors and assigns, to whom Antero has paid
royalties (“Royalties”) on Natural Gas, including
natural gas liquids, produced by Antero from wells
located in West Virginia at any time since January 1,
2009, pursuant to Leases which contain either of the
following gas royalty provisions: (a) [Lessee] covenants
and agrees “to pay monthly Lessors’ proportionate share
of the one-eighth (1/8) of the value at the well of the
gas from each and every gas well drilled on said
premises, the product from which is marketed and used
off the premises, said gas to be measured at a meter set
on the farm”; or (b) “Lessee covenants and agrees to pay
Lessor as royalty for the native gas from each and every
well drilled on said premised producing native gas, as
amount equal to one-eighth (1/8) of the gross proceeds
received from the sale of the same at the prevailing
price for gas sold at the well, for all native gas saved
and marketed from the said premises, payable quarterly.”
The Class excludes: (1) agencies, departments, or
instrumentalities of the United State of America; (2)
publicly traded oil and gas exploration companies; (3)
any person who is or has been a working interest owner
in a well produced by Antero in West Virginia; and (4)
Antero.
(Dkt. No. 152 at 42-43).
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ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
6
On April 1, 2020, the Plaintiffs moved to compel Antero to
produce any lease meeting the Class definition (Dkt. No. 155).
Based on Antero’s interlocutory appeal of its Class Certification
Order, however, the Court denied the Plaintiffs’ motion without
prejudice (Dkt. No. 170). After the Fourth Circuit denied its
appeal, Antero moved to amend the Class Certification Order, which
the Court denied (Dkt. Nos. 171; 173; 176-1; 195).
Antero subsequently reviewed the 394 leases it had previously
produced, determined that 283 of those leases met the Class
definition and, on May 15, 2020, provided unredacted copies of
those leases to the Plaintiffs (Dkt. Nos. 212 at 15; 342-1 at 1-
2). But it excluded from its production the remaining 111 lease
which, in its view, did not satisfy the Class definition or were
otherwise removed from the Class (Dkt. No. 342-1 at 2).
The Plaintiffs renewed their motion to compel Antero to
produce any lease meeting the Class definition (Dkt. No. 179).
Upon referral, Magistrate Judge Aloi denied the Plaintiffs’
motion, but ordered Antero to submit an affidavit from a witness
with knowledge outlining the reasons why the disputed leases were
Case 1:17-cv-00088-TSK Document 367 Filed 06/16/21 Page 6 of 24 PageID #:
<pageID>
ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
7
not part of the Class. He also ordered Antero to make that witness
available for a deposition (Dkt. No. 215 at 9).1
On June 26, 2020, Antero produced an additional 165 leases
meeting the Class definition but still did not include any of the
111 disputed leases. Id. Following approval of the Class Notice
and the Class Notice administrator, the Class Notice administrator
mailed that notice to 1,047 Class Members on July 30, 2020 (Dkt.
No. 233-1 at 1-2).
On August 28, 2020, the Plaintiffs filed a second motion to
compel (Dkt. No. 251), seeking information related to the 111
excluded leases in the following categories: (1) the “Removed”
leases which the Plaintiffs did not include in the lease schedule
attached to their class certification motion; (2) the “No Payee”
leases for which Antero has been unable to identify a proper
royalty payee; and (3) the “No Payment” leases involving 143 payees
to whom Antero has made no payment (Dkt. No. 288 at 6). Magistrate
Judge Aloi granted part of this motion and ordered Antero to
1 After Antero provided the Affidavit of Alvyn Schopp (“Schopp”),
its Chief Administrative Officer and Regional Senior Vice
President, the Plaintiffs deposed him on July 30, 2020 (Dkt. No.
251 at 6).
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ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
8
produce unredacted copies of all 111 disputed leases (Dkt. No. 288
at 11-12).
II. DISCUSSION
The Plaintiffs now seek an order declaring that the 111 leases
identified as the Removed leases, the No Payee leases, and the No
Payment leases are part of the Class (Dkt. No. 342 at 1). They
also seek authorization to send the Class Notice to the 3 payees
that receive royalties under the Removed leases and the 175 payees
associated with the No Payee and the No Payment leases. Id. at 2.
Antero contends the Plaintiffs are impermissibly attempting
to redefine the Class (Dkt. No. 345). It asserts that royalty
payees under the Removed leases are not Class Members because the
Plaintiffs themselves omitted those leases from the schedule
attached to their motion for class certification. Id. at 1, 13-
14. It also asserts that, because Antero holds their interests in
suspense, the royalty payees under the No Payee or No Payment
leases are not Class Members “to whom Antero has paid royalties.”
Id. at 1, 8-12.
A. Applicable Law
Federal Rule of Civil Procedure 23 provides that, after
determining that a class should be certified, the court must, by
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ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
9
order, “define the class and the class claims, issues, or
defenses.” Fed. R. Civ. Pro. 23(c)(1)(A)–(B). However, the court
may alter or amend the class certification order before final
judgment. Fed. R. Civ. Pro. 23(c)(1)(C). The court also retains
discretion to issue orders to “giv[e] appropriate notice to some
or all class members . . . of their opportunity to come into the
action” or “deal with similar procedural matters.” Fed. R. Civ.
Pro. 23(d)(1).
The Court issued its Class Certification Order on March 23,
2020 (Dkt. No. 152). The Plaintiffs now seek “an Order finding
that certain categories of royalty owner payees excluded by . . .
Antero . . . should be found to be included in the Class and
receive the class certification notice” (Dkt. No. 248 at 1). They
contend that, pursuant to Rule 23(d), the Court retains discretion
to clarify the Class definition on this point (Dkt. No. 342 at 8
(citing N
EWBERG ON CLASS ACTIONS § 7:28)). Antero, on the other hand,
contends the Plaintiffs are really seeking to expand the Class
definition, which would require a wholesale reanalysis of the class
action prerequisites in Rule 23(a) (Dkt. No. 345 at 7).
To resolve this dispute, the Court first must determine
whether the Plaintiffs actually seek to expand the Class
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ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
10
definition. The Plaintiffs claim they seek only to clarify whether
the payees entitled to receive royalties under the three (3)
categories of leases at issue are Class Members who must receive
the Class Notice. Specifically, they seek (1) a determination that
the Removed leases are included in the Class, and (2) a resolution
of the parties’ conflicting interpretations of the phrase “to whom
Antero has paid royalties.”
The record reflects that the parties have always anticipated
additional Class Members might be identified and that a
supplemental Class Notice may be necessary (Dkt. No. 234 at 26-
32). Indeed, on July 9, 2020, they agreed to send an initial Class
Notice to then-identified Class Members and to supplement that
notice if they identified additional Class Members. Id. In light
of that, the Court requested that they advise it of any need for
a subsequent mailing. Id. at 32. That is precisely what the
Plaintiffs have now done.
After considering the parties’ arguments, the Court is
convinced the Plaintiffs seek only to clarify the Class definition,
and consequently turns its attention to determining whether the
three (3) disputed categories of leases and their royalty payees
fall within the scope of that definition. If they do, the Court
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<pageID>
ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
11
may enter an Order giving the Class Members “appropriate notice .
. . of their opportunity to come into the action.” Fed. R. Civ.
Pro. 23(d)(1).
B. Removed leases
It is undisputed that the Removed leases contain one of the
Class Lease royalty provisions. But because the Plaintiffs did not
include these leases on the schedule supporting their class
certification motion, Antero claims they are beyond the Court’s
consideration (Dkt. No. 345 at 13). The Court disagrees.
At the May 11, 2020 hearing on Antero’s motion to amend the
Class Certification Order, Antero sought to limit the scope of the
Class to those leases previously disclosed (Dkt. No. 198 at 20).
The Plaintiffs opposed any such limitation, arguing that the Class
must include “all of the leases that have the [Class Lease royalty
provisions], so that there can be complete relief to persons who
are paid under th[ose] royalty provision[s].” Id. at 25. The Court
agreed, stating:
The class definition, as certified, does not mention any
particular lease by name, but it talks only about the
language in the lease . . . Antero has to produce leases
that contain the lease language of either [Class Lease
royalty provision] . . . I understand why [Antero is]
concerned about an expansion beyond the original number
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ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
12
of leases, but it has to include the leases that have
either [Class Lease royalty provision].
Id. at 27.
Thus, the Class definition is not limited solely to either
the leases produced by Antero in class certification discovery or
those included by the Plaintiffs on their lease schedule, but also
includes any lease containing either of the Class Lease royalty
provisions. Because the payees under the Removed leases have
received royalties from Antero since January 1, 2009 pursuant to
leases containing the Class Lease royalty provisions, they are
Class Members.
Antero’s next argument, that the Plaintiffs have judicially
admitted that the Removed leases are “outside of the scope of the
class definition,” is unavailing (Dkt. No. 345 at 14). A “judicial
admission” is a representation that “unless allowed by the court
to be withdrawn, is conclusive in the case.” Meyer v. Berkshire
Life Ins. Co., 372 F.3d 261, 264 (4th Cir. 2004) (citing Keller v.
United States, 58 F.3d 1194, 1199 n. 8 (7th Cir. 1995)). To qualify
as a judicial admission, an attorney's statement must be
“deliberate, clear and unambiguous.” Meyer, 372 F.3d at 265 (citing
MacDonald v. Gen. Motors Corp., 110 F.3d 337, 340 (6th Cir. 1997)).
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<pageID>
ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
13
According to Antero, the Plaintiffs admitted that the Removed
leases are not part of the Class when they omitted them from their
lease schedule and stated the following in support of their motion
for class certification:
Attached as Exhibit 3] is a list of 368 Leases which
meet the above-referenced Class definition.
1
. . .
[FN 1] – [Plaintiffs’ lease schedule] does not include
certain leases which have been produced by Antero in
this litigation, but which, due to the gas royalty
provision itself, a modification of the royalty
provision, or an addendum to the royalty provision, are
outside the scope of the Class definition. All but one
of the Leases identified in Exhibit 3 is a Lease produced
by Antero in this litigation. If Plaintiffs’ attorneys
discover additional Leases which meet the Class
definition, the list of C lass Leases will be
supplemented.
(Dkt. No. 100-1 at 3 n.1).
This statement, however, does not deliberately, clearly, or
unambiguously state that any lease containing the Class Lease
royalty provisions produced prior to the Class being certified
2
but not included on the Plaintiffs’ lease schedule is excluded
from the Class. Notably, the Plaintiffs specifically reserved the
2 The Plaintiffs assert that the Removed leases were not included
in their lease schedule because Antero did not produce them until
the day they moved for class certification, at the earliest (Dkt.
No. 348 at 4-5).
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<pageID>
ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
14
right to supplement their list of leases meeting the Class
definition. Furthermore, they did not intend that lease schedule
to be an exhaustive list of leases meeting the Class definition,
but rather as evidence that their proposed class met the numerosity
requirement of Rule 23(a).
3 Thus, in the Court’s opinion, the
omission of these leases from the Plaintiffs’ lease schedule does
not constitute a judicial admission that they do not meet the Class
definition.
Because each of the Removed leases contains one of the Class
Lease royalty provisions and the Plaintiffs are not barred from
arguing that they are part of the Class, the Court concludes that
these leases meet the Class definition and that the corresponding
royalty payees are Class Members.
C. No Payee and No Payment Leases
It is also undisputed that the No Payee and No Payment leases
contain one of the Class Lease royalty provisions and that Antero
calculates royalties owed under those leases in the same manner as
it calculates royalties owed under the Class Leases. Whether these
leases are part of the Class therefore depends on the impact, if
3 As a prerequisite to class certification, Federal Rule of Civil
Procedure 23(a)(1) requires that the proposed class be “so numerous
that joinder of all members is impracticable.”
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ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
15
any, of Antero’s use of suspense accounts to hold payments rather
than transfer royalties directly to a payee. The Plaintiffs contend
that, regardless of Antero’s use of suspense accounts, the 40 No
Payee leases and an unknown number of No Payment leases
4 impacting
143 royalty payees are part of the Class. Conversely, Antero argues
that including these leases within the scope of the Class
definition would render the Class unascertainable. It also asserts
that these leases do not meet the Class definition because payees
under these leases have not received a payment from Antero.
The Fourth Circuit has “repeatedly recognized that Rule 23
contains an implicit threshold requirement that the members of a
proposed class be ‘readily identifiable.’” EQT Prod. Co. v. Adair,
764 F.3d 347, 358 (4th Cir. 2014) (citations omitted). This has
regularly been described as an “ascertainability requirement.” Id.
However phrased, the requirement is the same. A class
cannot be certified unless a court can readily identify
the class members in reference to objective criteria .
. . The plaintiffs need not be able to identify every
class member at the time of certification. But if class
members are impossible to identify without extensive and
individualized fact-finding or mini-trials, then a class
action is inappropriate.
4 The number of No Payment leases is uncertain because, although
Antero identified 143 payees that have not been paid, there may be
more than one payee per lease.
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ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
16
Id. (cleaned up) (citations omitted).
At bottom, then, even if Antero may readily identify the No
Payee and No Payment leases and accounts from its recordkeeping,
it cannot as easily identify the proper owners of the funds held
in suspense. Indeed, it holds funds in suspense for “various
reasons, including but not limited to instances in which tittle
issues cast doubt on a person’s or entity’s right to royalties or
an owner cannot be found or identified” (Dkt. No. 345 at 11).
5
Because ownership of these accounts is disputed or unknown,
discovery of the proper owner’s identity may require extensive
individualized inquiry. Therefore, it appears that the implicit
ascertainability requirement of Rule 23 would not be satisfied if
the No Payee and No Payment leases were included in the Class.
And even if these Class Members could readily be identified,
the No Payee and No Payment leases do not meet the Class definition
of “[p]ersons and entities, including their respective successors
and assigns, to whom Antero has paid royalties . . . at any time
since January 1, 2009, pursuant to Leases which contain either of
5 The Plaintiffs agree that suspense accounts are used in the oil
and gas industry when royalty ownership is in question or the payor
is unable to disburse proceeds to the proper owner at that time
(Dkt. No. 342 at 11-12).
Case 1:17-cv-00088-TSK Document 367 Filed 06/16/21 Page 16 of 24 PageID #:
<pageID>
ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
17
the [Class Lease royalty provisions].” The Plaintiffs assert that
these leases meet the Class definition because Antero has
identified the proper payees by unique payee numbers and has
calculated the amount of royalties owed to each (Dkt. No. 342 at
11). And to the extent Antero has improperly deducted post-
production costs from these royalties, the Plaintiffs further
contend the proper owners are entitled to the same damages sought
by the Class. Id.
Antero, however, does not pay royalties generated under the
No Payee or No Payment leases to a payee or to a bank account for
the proper owner’s benefit (Dkt. No. 345 at 10).
6 Therefore, payees
entitled to receive royalties under the No Payee or No Payment
leases cannot be Class Members because Antero has not issued any
funds to them; consequently, they are not persons “to whom Antero
has paid royalties.”
6 The Plaintiffs insist that, when Antero places funds in suspense,
it deposits these funds into individual bank accounts for the
proper owner (Dkt. No. 342 at 11-12). Antero has refuted this,
stating that a suspense account is only a bookkeeping mechanism by
which funds are earmarked for a specific purpose but never actually
deposited into a separate bank account and that, even if it did
deposit suspended funds into separate accounts, the payees still
have never received any payment from Antero (Dkt. No. 345 at 11).
Case 1:17-cv-00088-TSK Document 367 Filed 06/16/21 Page 17 of 24 PageID #:
<pageID>
ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
18
The Plaintiffs’ reliance on Antero’s summary royalty reports
to establish that Antero has in fact paid royalties to payees
associated with the No Payee and No Payment leases is misplaced.
When Antero previously produced reports listing its leases “in pay
status” as of November 2018, as well as the amount of royalties
calculated for production under each lease, it included the No
Payee and No Payment leases with assigned unique payee numbers
(Dkt. No. 348 at 7-9). According to the Plaintiffs, because Antero
included the No Payee and No Payment leases on its summary royalty
report, it must have paid royalties to the corresponding payees in
November 2018. Id. But Antero’s Rule 30(b)(6) witness, Alvyn
Schopp, refuted this contention explaining why Antero’s inclusion
of the No Payee and No Payment leases on its summary royalty
reports does not support an inference that Antero issued funds to
any payee under these leases.
Although payee numbers for the royalty owners associated
with [the No Payee and No Payment] leases previously
appeared on a [Summary Royalty Report] produced by
Antero during [class certification] discovery, in
compiling the data for the current certified class
member list and current certified class lease lists,
Antero subsequently determined that these royalty owners
were in suspense and have not received payments pursuant
to class leases and, therefore, these royalty owners
were not persons or entities “to whom Antero has paid
royalties.”
Case 1:17-cv-00088-TSK Document 367 Filed 06/16/21 Page 18 of 24 PageID #:
<pageID>
ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
19
(Dkt. No. 345 at 10-11).
Nor does the Plaintiffs’ reliance on Kay Company, LLC v. EQT
Production Company, 2017 WL 10436074 at *8 (N.D.W. Va. Sept. 6,
2017), and Elna Sefcovic, LLC, et al. v. TEP Rocky Mountain LLC,
No. 17-cv-01990-MSK-MEH (D. Colo.), support their argument. The
class defined in Kay included all “lessors that received or were
due to be paid royalties.” Kay, 2017 WL 10436074 at *1. The
defendant contested the plaintiffs’ ability to satisfy Rule 23’s
numerosity requirement, arguing that many leaseholders were not
sufficiently identifiable “as illustrated by the fact that there
[were] approximately 3,500 West Virginia lessors whose interests
[were] being held in suspense.” Kay, 2017 WL 10436074 at *8. The
court found that the suspended interests did not pose an
“insurmountable obstacle” to class certification because, should
the litigation result in additional royalties being owed, “those
payments [could be] added to whatever escrow accounts the
defendants maintain for the present leases.” Id.
But Kay addressed the propriety of certifying a class which
included future payees, which is not an issue in this case. The
class definition in Kay broadly included all “lessors that received
or were due to be paid royalties,” Kay, 2017 WL 10436074 at *1
Case 1:17-cv-00088-TSK Document 367 Filed 06/16/21 Page 19 of 24 PageID #:
<pageID>
ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
20
(emphasis added). Consequently, it included royalty payees whose
interests were held in suspense. The Class definition in this case
is significantly narrower, including only persons “to whom Antero
has paid royalties” (Dkt. No. 152 at 42-43 (emphasis added)). Nor
have the Plaintiffs attempted to expand the Class definition to
encompass future payees.
Elna is likewise distinguishable. There, the plaintiffs
included “all persons and entities to whom [the defendant] has
paid royalties.” Significantly, however, when the parties reached
a class-wide settlement they agreed to add as class members those
royalty owners whose funds had been held in suspense.
The parties here have reached no such agreement, and the Class
definition requires Class Members to have received at least one
royalty payment from Antero since January 1, 2009. Antero therefore
has established that, while certain payees may be entitled to
receive royalties held in suspense under the No Payee and No
Payment leases, they have not received any funds from Antero during
the relevant time and, thus, are not part of the Class.
D. Class Certification Notice
Because the Class in this case is certified under Rule
23(b)(3), “the court must direct to class members the best notice
Case 1:17-cv-00088-TSK Document 367 Filed 06/16/21 Page 20 of 24 PageID #:
<pageID>
ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
21
that is practicable under the circumstances.” Fed. R. Civ. P.
23(c)(2)(B). This includes “individual notice to all members who
can be identified through reasonable effort.” Id.; see also
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)
(explaining that due process is satisfied “where a fully
descriptive notice is sent first-class mail to each class member,
with an explanation of the right to ‘opt out[.]’”).
On July 9, 2020, the Court approved the Class Notice after
finding that its content and form satisfied the requirements set
forth in Rule 23(c)(2)(B)
7 (Dkt. Nos. 225; 233-1 at 1-2). Because
the three (3) payees receiving royalties under the Removed leases
are in fact Class Members, they must be notified of this
litigation. In order to provide these Class Members with the best
7 Rule 23(c)(2)(B) mandates that the class notice “clearly and
concisely state, in plain, easily understood language” the
following pieces of information:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through
an attorney if the member so desires;
(v) that the court will exclude from the class any member
who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members
under Rule 23(c)(3).
Case 1:17-cv-00088-TSK Document 367 Filed 06/16/21 Page 21 of 24 PageID #:
<pageID>
ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
22
notice practicable under the circumstances, the Court ORDERS as
follows: (1) Antero SHALL disclose their names and last known
addresses of the Removed Leases royalty payees to Rapazzini within
five (5) days following entry of this Order; and (2) Rapazzini
SHALL send the Class Notice to them in the manner prescribed in
the Class Notice Plan within ten (10) days following Antero’s
disclosure. These Class Members who wish to request exclusion from
the certified Class must do so in writing within thirty (30) days
following the mailing of the Class Notice.
III. CONCLUSION
For the reasons discussed, the Court:
GRANTS the Plaintiffs’ motion to send the Class Notice to
the payees receiving royalties under the Removed leases
(Dkt. No. 342);
DENIES the Plaintiffs’ motion to send the Class Notice to
the payees related to the No Payee or No Payment leases
(Dkt. No. 342);
ORDERS Antero to produce the names and the last known
addresses of the Plaintiffs Removed royalty payees within
five (5) days following entry of this Order;
Case 1:17-cv-00088-TSK Document 367 Filed 06/16/21 Page 22 of 24 PageID #:
<pageID>
ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
23
ORDERS Rapazzini to send the Class Notice to the added
Class Members in the manner prescribed under the Notice
Plan within ten (10) days following receipt of their
information from Antero;
SETS the new deadline for these Class Members to request
exclusion from the certified Class for thirty (30) days
following the mailing of the Class Notice;
ORDERS Class counsel to file a status report within three
(3) days after Rapazzini mails the Class Notice to the
additional Class Members, providing to the Court:
o the number of notices mailed, and
o the date of mailing; and
ORDERS Class counsel to file a status report within three
(3) days after the completion of the exclusion period,
providing to the Court:
o the number of notices re-mailed;
o the number of Class Members who have requested to be
excluded from the Class; and
o the number of Class Members remaining in the Class.
It is so ORDERED.
Case 1:17-cv-00088-TSK Document 367 Filed 06/16/21 Page 23 of 24 PageID #:
<pageID>
ROMEO, ET. AL V. ANTERO 1:17CV88
MEMORANDUM OPINION AND ORDER GRANTING-IN-
PART AND DENYING-IN-PART THE PLAINTIFFS’ MOTION
FOR AN ORDER APPROVING THE CLASS NOTICE TO BE SENT
TO ADDITIONAL CLASS MEMBERS, APPROVING THE NOTICE TO BE
SENT, AND SETTING A NEW DEADLINE FOR THOSE CLASS MEMBERS
TO REQUEST EXCLUSION FROM THE CERTIFIED CLASS [DKT. NO. 342]
24
The Clerk SHALL transmit copies of this Memorandum Opinion
and Order to counsel of record.
DATED: June 16, 2021
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
Case 1:17-cv-00088-TSK Document 367 Filed 06/16/21 Page 24 of 24 PageID #:
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