govinfo:USCOURTS-wvnd-1_17-cv-00088-9

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA 
JACKLIN ROMEO et al., 
Plaintiffs, 
v. CIVIL NO. 1:17-CV-88 
(KLEEH) 
ANTERO RESOURCES CORPORATION, 
Defendant. 
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
Pending is the Class Members’ Motion for Summary Judgment 
on Each of Defendant’s Eighteen Affirmative Defenses [ECF No. 
437]. For the reasons discussed herein, the motion is GRANTED 
IN PART and DENIED IN PART.  For good cause, the class members’ 
motion for leave to submit an additional exhibit is also 
GRANTED [ECF No. 454], and said exhibit is deemed FILED [ECF No. 
454-1]. 
I. PROCEDURAL HISTORY
On October 2, 2017, the plaintiffs, Jacklin Romeo, Susan S. 
Rine, and Debra Snyder Miller, individually and on behalf of 
all others similarly situated (together, “Plaintiffs”), filed a 
second amended class action complaint, which is the governing 
complaint in this case.  See ECF No. 31.  On September 19, 
2018, Defendant Antero Resources Corporation (“Antero”) filed an 
answer.  See ECF No. 39.  On March 23, 2020, this Court 
certified the proposed 
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ROMEO V. ANTERO 1:17-CV-88 
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
2 
class.  See ECF No. 152.  On June 11, 2025, the Supreme Court of 
Appeals of West Virginia answered certified questions.  See Romeo 
v. Antero Res. Corp, 917 S.E.2d 26 (W. Va. June 11, 2025).  After
the parties could not agree on a schedule to govern the case moving 
forward, the Court entered a schedule on July 30, 2025.  See ECF 
No. 436.  Plaintiffs filed a motion for summary judgment with 
respect to all affirmative defenses asserted by Antero.  The motion 
is fully briefed and ripe for review. 
II. STANDARD OF REVIEW
Summary judgment is appropriate if “there is no genuine 
dispute as to any material fact and the movant is entitled to 
judgment as a matter of law.”  Fed. R. Civ. P. 56(a).  The movant 
“bears the initial responsibility of informing the district court 
of the basis for its motion, and identifying those portions of the 
pleadings, depositions, answers to interrogatories, and admissions 
on file, together with the affidavits, if any, which it believes 
demonstrate the absence of a genuine issue of material fact.” 
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal 
quotation marks omitted).  The burden then shifts to the nonmoving 
party to present “specific facts showing that there is a genuine 
issue for trial.”  Blair v. Defender Servs., Inc., 386 F.3d 623, 
625 (4th Cir. 2004) (citations omitted). 
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ROMEO V. ANTERO 1:17-CV-88 
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
3 
“When the moving party has carried its burden 
. . . , its 
opponent must do more than simply show that there is some 
metaphysical doubt as to the material facts.”  Matsushita Elec. 
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) 
(citations omitted).  Rather, the Court must ask “whether the 
evidence presents a sufficient disagreement to require submission 
to a jury or whether it is so one-sided that one party must prevail 
as a matter of law.”  Anderson v. Liberty Lobby, Inc., 477 U.S. 
242, 251–52 (1986).  At its core, the summary-judgment process 
examines whether a trial is needed.  See id. at 250.  “Where the 
record taken as a whole could not lead a rational trier of fact to 
find for the non-moving party, there is no genuine issue for 
trial.”  Matsushita, 475 U.S. at 587 (citation and internal 
quotation marks omitted). 
III. DISCUSSION
As a preliminary matter, in its response, Antero moves to 
withdraw, and asks the Court to strike, all but four of its 
affirmative defenses.  Plaintiffs reply that granting summary 
judgment in their favor, as opposed to withdrawing or striking, is 
more appropriate.  Given the timing of Antero’s attempt to withdraw 
the affirmative defenses, the Court agrees with Plaintiffs that 
they are entitled to summary judgment on the affirmative defenses 
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ROMEO V. ANTERO 1:17-CV-88 
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
4 
that Antero attempts to withdraw: Affirmative Defenses 1–8, 12, 
13, 15, and 16
–18.  The only affirmative defenses at issue are 
Affirmative Defenses 9, 10, 11, and 14.  See ECF Nos. 31, 39.  For 
the reasons discussed below, the Court finds that Plaintiffs are 
entitled to summary judgment on those affirmative defenses as well. 
A. Affirmative Defenses 9 (Payment and Release), 10 (Accord
and Satisfaction), and 11 (Res Judicata)
In Affirmative Defense 9, Antero asserts that “Plaintiffs’ 
and/or putative class members’ claims may be barred by the 
doctrines of payment and/or release.”  ECF No
. 39.  Under West 
Virginia law, to prevail on an affirmative defense of payment and 
release, Antero must prove that one or more members of the 
certified class released their royalty underpayment breach of 
contract claims against Antero, as alleged in Plaintiffs’ 
operative second amended class action complaint.  See McDaniel v. 
Kleiss, 503 S.E.2d 840, 847 (W. Va. 1998) (recognizing that a 
release is “the giving up or abandoning a claim or right to the 
person against whom the claim exists or the right is to be 
exercised and enforced”).  Plaintiffs assert that Antero has not 
produced any evidence that it reimbursed any of the class members 
for the royalty underpayments at issue or that any of the class 
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
5 
members released their claims against Antero for the royalty 
underpayments at issue. 
In Affirmative Defense 10, Antero asserts that “Plaintiffs’ 
and/or putative class members’ claims may be barred by the doctrine 
of accord and satisfaction.”  ECF No. 39.  To show an accord and 
satisfaction, the person asserting the defense must prove the 
following:  
(1) [c]onsideration to support an accord and
satisfaction; (2) an offer of partial payment
in full satisfaction of a disputed claim; and
(3) acceptance of the partial payment by the
creditor with full knowledge that the debtor
offered it only upon the condition that the
creditor accept the payment in full
satisfaction of the disputed claim or not at
all.
Richards v. Kees, 572 S.E.2d 898, 899 (W. Va. 2002) (citation 
omitted).  Plaintiffs assert that Antero has not produced any 
evidence that it reached an accord and satisfaction with any class 
member regarding the royalty underpayment claims at issue.  
In Affirmative Defense 11, Antero asserts that “Plaintiffs’ 
and/or putative class members’ claims may be barred by the doctrine 
of res judicata.”  ECF No. 39.  The doctrine of res judicata “bars 
a party from suing on a claim that has already been litigated to 
final judgment by the party or such party’s privies and precludes 
the assertion by such parties of any legal theory, cause of action, 
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ROMEO V. ANTERO 1:17-CV-88 
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
6 
or defense which could have been asserted in that action.”  See 
Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., 803 S.E.2d 
519, 530 (W. Va. 2017).  Plaintiffs assert that Antero has not 
identified or produced any final judgment that adjudicated any 
class member’s royalty underpayment claims against Antero in this 
case.   
In response, Antero provides information regarding 
settlements in two cases: Cather v. Seneca-Upshur Petroleum, Inc., 
1:09-CV-139 (N.D.W. Va.), and Antero Resources Corporation v. 
Bridge, No. 13-C-305-3 (Cir. Ct. Harrison Cnty.).  Antero asserts 
that these settlements impact the claims of Plaintiff Rine and 
Plaintiff Miller, as well as several other members of the certified 
class.  The Cather settlement resolved and released certain royalty 
owners’ claims relating to the calculation and payment of oil and 
gas royalties, including breach of contract for the deduction of 
post-production costs.  See Cather Final Order, No. 1:09-CV-139, 
ECF No. 178, at 5.  The Cather settlement agreement, Antero argues, 
presented settlement class members with two settlement options and 
released Seneca-Upshur Petroleum, Inc. (“Seneca-Upshur”) and its 
successors.  See Cather Settlement Agreement, ECF No. 139-1, at 
29-31.  Antero is a successor to Seneca-Upshur Petroleum, LLC. 
See Answer, ECF No. 39, at (¶ 23 (admitting same).   
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
7 
Antero argues that the certified class members on leases for 
which “Option A” was chosen include Plaintiff Rine, Plaintiff 
Miller, and 28 additional Romeo class members.  See ECF No. 446-
5. This Court’s approval of the class action settlement and the
leases subject thereto are a matter of public record.  See Cather 
Final Order, No. 1:09-CV-139, ECF No. 178; see also Cather Order 
Granting Approval, No. 1:09-CV-139, ECF No. 190 (approving 
recordation of the list of leases subject to Option A in each 
county in which the properties subject thereto are located).  
Finally, Antero argues that another certified class member 
has entered into a confidential settlement agreement with Antero 
that likely affects her claims here.  See Bridge Dismissal Order, 
ECF No. 443-1.  For all of these reasons, Antero argues that there 
are genuine issues of material fact regarding Antero’s affirmative 
defenses of payment and release, accord and satisfaction, and res 
judicata, so Plaintiffs are not entitled to summary judgment on 
Affirmative Defenses 9, 10, and 11. 
In sum, Antero relies on the following evidence to argue that 
summary judgment is improper: 
(1) The final order approving the Cather class
settlement, dated May 31, 2012, No. 1:09-CV-
139, ECF No. 178 (the “Cather Final Order”);
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ROMEO V. ANTERO 1:17-CV-88 
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
8 
(2) The Cather class settlement agreement, dated
July 1, 2011, No. 1:09-CV-139, ECF No. 139-1
(the “Cather Settlement Agreement”);
(3) The Cather defendants’ motion for approval of
attached Exhibit 1, and directing recordation
of Exhibit 1, dated J anuary 16, 2014, No.
1:09-CV-139, ECF No. 187 (the “Cather Motion
for Approval”);
(4) The Cather order granting the defendants’
motion for approval and recordation of Exhibit
1, dated April 9, 2014, No. 1:09-CV-139, ECF
No. 190 (the “Cather Order Granting
Approval”);
(5) Antero’s supplemental response to
Interrogatory No. 11 of Plaintiffs’ second
interrogatories, ECF No. 446-5; and
(6) The agreed dismissal order in Bridge, dated
September 14, 2015, ECF No. 443-1 (the “Bridge
Dismissal Order”).
In reply, Plaintiffs argue that Antero was not a defendant in 
Cather, that Cather resolved the royalty underpayment claims of 
designated class members against the named defendants only through 
November 4, 2010, and that Cather did not resolve the royalty 
underpayment claims of any of the Romeo class members against 
Antero.  Plaintiffs argue that the Cather Final Order and the 
Cather Settlement Agreement do not set forth any facts that 
establish any of the required elements of Antero’s affirmative 
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ROMEO V. ANTERO 1:17-CV-88 
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
9 
defenses 9, 10, and 11.  Plaintiffs also argue that the Bridge 
Dismissal Order contains no proof that class member Kimberly Smith 
released any part of the royalty underpayment claims against Antero 
which are at issue in this litigation.  Plaintiffs argue that 
Antero has not identified any statement in any of the Cather 
exhibits that constitutes a release by any members of the Romeo 
certified class.   
Plaintiffs assert that the Cather class members who selected 
Option A were limited to those identified in the “Owner Name” 
column in an exhibit attached to the Cather Motion for Approval. 
See Cather Motion for Approval, No. 1:09-CV-139, ECF No. 187.  In 
their motion, the Cather defendants stated, in pertinent part, 
Seneca-Upshur prepared the attached Exhibit 1 
identifying each Covered Lease for which the 
Class Member selected Settlement Option A. 
The Class Members who elected Settlement 
Option A and their respective royalty interest 
is set forth under the columns entitled “Owner 
Name” and “Interest.”  In those instances 
where all Class Members entitled to royalties 
under a given Covered Lease did not elect 
Option A, only those royalty owners who made 
the election are identified on Exhibit 1. 
Id. at 3.  The same information was also set forth in the Cather 
Order Granting Approval.  Cather Order Granting Approval, No. 1:09-
CV-139, ECF No. 190.  Plaintiffs argue that a comparison of the
“Owner Name” column to the Romeo certified class confirms that 
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ROMEO V. ANTERO 1:17-CV-88 
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
10 
only five members of the Romeo certified class selected Option A: 
Nicholas Ward Stone, Donald Brooks Fox, Emma M. Lamb, Dennis 
Powell, and Megan Campbell Deem.   
Plaintiffs further argue that the selection of Option A did 
not alter Antero’s royalty payment obligations to the five Romeo 
class members who selected it.  Rather, they argue, the five class 
members agreed that from and after November 3, 2010, (1) their 
royalties “may be calculated on volumes actually sold for which 
Seneca-Upshur receives proceeds” (Cather Motion for Approval, No. 
1:09-CV-139, ECF No. 187); (2) Seneca-Upshur was obligated to pay 
them royalties based upon prices it received on its sale of natural 
gas products at its Point of Sale (id. at  3); and (3) “point of 
sale” was defined as “that point where the gas, produced from a 
well on a Covered Lease, enters the receipt meter of an 
unaffiliated third-party gathering, transmission, or pipeline 
system, and at which time title and ownership to such gas passes 
to an unaffiliated third party buyer (id.).  Plaintiffs argue that 
the five Romeo class members’ selection of Option A did not alter 
Antero’s royalty payment obligations to them under the applicable 
Mutschelknaus or Matthew royalty provisions in their class leases 
because (1) under the applicable Mutschelknaus and Matthew royalty 
provisions set forth in the five class members’ leases, Antero 
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ROMEO V. ANTERO 1:17-CV-88 
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
11 
“may not deduct” from Plaintiffs’ royalties “a proportionate share 
of the costs incurred in processing, fractionating, and 
transporting residue gas and natural gas liquids to the point of 
sale,” see Syl. Pt. 8, Romeo, 917 S.E.2d 26 (citation omitted); 
(2) Option A did not alter that obligation, particularly because
Antero’s title to the residue gas and natural gas liquids that 
Antero produced from class wells and sold to third-party purchasers 
transferred at Antero’s point of sale of the residue gas and 
natural gas liquids to such purchasers, Schopp Dep., ECF No. 446-
8, at 21:24-23:18, 46:5-48:15; and (3) all of the Romeo class 
members’ damages have been determined based upon the volumes of 
residue gas and natural gas liquids sold by Antero to purchasers 
of such natural gas products at the point of sale, Fifth Supp. to 
Phend Report, ECF No. 446-7, at ¶¶ 4 and 15 and Exh. A. 
Plaintiffs further argue that Antero has not submitted any 
evidence that the Bridge settlement agreement resolved any part of 
Kimberly Smith’s royalty underpayment claims against Antero that 
are at issue in this case.  Plaintiffs point out that the Bridge 
Dismissal Order does not set forth any of the terms of Antero’s 
settlement agreement with Kimberly Smith.  See Bridge Dismissal 
Order, ECF No. 443-1.  Plaintiffs argue that the evidence submitted 
regarding Cather and Bridge does not prove any of the required 
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ROMEO V. ANTERO 1:17-CV-88 
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
12 
elements of  Antero’s accord and satisfaction defense.  Finally, 
Plaintiffs argue that Antero’s evidence does not include any such 
judgment to prove res judicata.   
After considering the record and the parties’ arguments, the 
Court agrees with Antero that summary judgment is inappropriate 
with respect to Affirmative Defenses 9, 10, and 11.  Antero has 
produced evidence that Antero is a successor to Seneca-Upshur.  At 
least five Romeo class members have released claims against Seneca-
Upshur and its successors relating to the calculation and payment 
of oil and gas royalties, including breach of contract for the 
deduction of post-production costs.  Accordingly, at this stage, 
Plaintiffs are not entitled to summary judgment on Affirmative 
Defenses 9, 10, and 11. 
B. Affirmative Defense No. 14 – Treatment as a Class Action
In Affirmative Defense 14, Antero asserts that “Plaintiffs 
are not appropriate class representatives, and this action is not 
appropriate for treatment as a class action.”  ECF No. 39. 
Plaintiffs contend that this Court rejected those arguments when 
it granted the motion for class certification on March 23, 2020. 
See ECF No. 152.  Plaintiffs also point out that on April 15, 2020, 
the United States Court of Appeals for the Fourth Circuit denied 
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ROMEO V. ANTERO 1:17-CV-88 
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
13 
Antero’s petition for permission to appeal the order.  See ECF No. 
171. 
In response, Antero maintains its argument (which it has 
asserted throughout this case) that the case is unsuitable for 
class certification and that the class representatives are 
inappropriate.  Antero argues that payees holding subsequent 
modifications are not included in the class and that many class 
members were likely paid royalties at least as much as the actual 
sales price or even overpaid.  In other words, Antero argues that 
it has individualized defenses to each of those class members’ 
claims based on their actual payment history.  Accordingly, Antero 
argues, the predominance issues posed by the use of a universal 
damages theory as opposed to individualized analyses of harm 
underscores the impropriety of class treatment in this case. 
Upon review, the Court agrees with Plaintiffs’ position.  This 
Court has previously considered and rejected Antero’s arguments 
that class certification is inappropriate.  The class has been 
certified.  Plaintiffs are entitled to judgment as a matter of law 
with respect to Affirmative Defense 14.   
C. Plaintiffs’ Claim Relating to the 1983 Lease
In its response, Antero argues that because Plaintiffs have 
withdrawn their claims arising from the 1983 Lease and Antero has 
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ROMEO V. ANTERO 1:17-CV-88 
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN 
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON EACH OF  
DEFENDANT’S EIGHTEEN AFFIRMATIVE DEFENSES [ECF NO. 437] 
14 
withdrawn its affirmative defense regarding the same, the Court 
should also strike allegations pertaining to the 1983 Lease in the 
second amended complaint to avoid confusing the issues at trial. 
In reply, Plaintiffs oppose the request, asserting that the 
allegations provide relevant factual background to Plaintiff 
Romeo’s mineral interests and her lessor’s interests under the 
March 14, 1984 Lease referenced in Paragraph 4 of the second 
amended complaint.  At this stage, especially given the small 
amount of briefing dedicated to the issue, the Court finds that 
striking the information would be premature, and the request is 
denied. 
IV. CONCLUSION
For the reasons discussed above, the Class Members’ Motion 
for Summary Judgment on Each of Defendant’s Eighteen Affirmative 
Defenses [ECF No. 437] is GRANTED IN PART and DENIED IN PART. 
It is so ORDERED. 
The Clerk is directed to transmit copies of this Memorandum 
Opinion and Order to counsel of record. 
DATED: March 31, 2026 
____________________________ 
THOMAS S. KLEEH, CHIEF JUDGE 
NORTHERN DISTRICT OF WEST VIRGINIA 
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