Opinion

Romeo v. Antero Resources Corporation

Court: District Court, N.D. West Virginia
Filed: Mar 23, 2020
Cited by: 0 cases
Authority: More cited than 32.7%

noting that these subsections are “guidelines”

How later courts described this case

noting that these subsections are “guidelines”
“[E]ven if just a fraction of the class members were to bring individual suits, the adjudication of the common issues in a single proceeding would be more efficient than the separate adjudication of individual claims.” (citation omitted)
finding expert’s technical violation of Rule 26(a)(2)(B) by failing to sign expert report was harmless
striking attorney declarations in support of a motion for class certification as evidence, but considering the declarations as legal arguments

Written by the judges who cited it.

The opinion

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 DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

In this breach of contract case, 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). The Plaintiffs moved to certify this case as a class

action pursuant to Federal Rule of Civil Procedure 23(b)(3) (Dkt.

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

No. 100), which Antero opposes. Antero also moved to exclude expert

witnesses and to strike certain declarations and exhibits filed by

the Plaintiffs in support of their motion for class certification

(Dkt. No. 142).

After careful review, and for the reasons that follow, the

Court DENIES Antero’s motions to exclude (Dkt. Nos. 96, 97), DENIES

Antero’s motion to strike (Dkt. No. 142), and GRANTS the

Plaintiff’s motion for class certification (Dkt. No. 100). The

Court further DEFINES the certified class, APPOINTS class

representatives and counsel, DIRECTS class counsel to submit a

proposed Notice of Certification, and SCHEDULES a status

conference.

I. BACKGROUND

A. Factual Background1

Romeo is the assignee of a portion of the lessors’ interest

under a March 14, 1984 lease agreement between lessors Jessie J.

1 The Court takes these facts from the second amended

complaint and construes them in the light most favorable to the

Plaintiffs. See De’Lonta v. Johnson, 708 F.3d 520, 524 (4th Cir.

2013).

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

Nixon, Betty Nixon, Mary Alice Vincent, and Hubert L. Vincent, and

lessee Clarence W. Mutschelknaus (“the Mutschelknaus Lease”).

Antero acquired the lessee’s rights and obligations sometime prior

to January 1, 2009 (Dkt. No. 31 at 6). The royalty provision of the

Mutschelknaus Lease, which is attached to the second amended

complaint, contains the following language:

In consideration of the premises, 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 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. at 6.

Rine and Miller are assignees of portions of the lessors’

interest under an October 19, 1979 lease between lessors Lee H.

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

Snyder, and Olive W. Snyder, and lessee Robert L. Matthey, Jr.

(“the Matthey Lease”). Id. at 6-7. Ultimately, Matthey’s interest

in the lease was assigned to Antero sometime prior to July 17,

2012. Id. at 7-8. The royalty provision of the Matthey Lease, which

is also attached to the second amended complaint, 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.

According to the Plaintiffs, gas produced under the agreements

consists of “wet gas” saturated with liquid hydrocarbons and water

that must be treated and processed to obtain marketable “residue

gas.” Likewise, the gas contains valuable liquid hydrocarbon

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

components that must be extracted and fractionated prior to sale.

Id. at 9-10.

Because neither royalty provision at issue expressly permits

the deduction of post-production costs, the Plaintiffs contend that

West Virginia law imposes a duty on Antero to calculate royalties

based on the price it receives from third parties for the residue

gas and natural gas liquids (“NGLs”) without deductions. The

Plaintiffs further allege that, despite this duty, Antero has

failed to pay a full 1/8th royalty on the sale price for residue

gas and NGLs, and instead have been deducting various

post-production costs. Id. at 11-13.

B. Procedural History

After the Court denied Antero’s motion to dismiss the second

amended complaint, it limited the first phase of discovery to class

certification. In July 2019, Antero filed motions to exclude the

expert testimony of Daniel T. Reineke, P.E. (“Reineke”), and Donald

A. Phend, C.P.A. (“Phend”). After the Plaintiffs moved to certify

this case as a class action in August 2019, the Court held a

hearing on the motions to exclude on September 27, 2019, and on the

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

motion for class certification on October 15, 2019, following which

it ordered supplemental briefing on various issues. Antero then

moved to strike certain declarations and exhibits filed by the

Plaintiffs in support of their motion for class certification.

II. DISCUSSION

The Court turns first to Antero’s motions to exclude and

strike various testimony and evidence.

A. Motions to Exclude

Pursuant to Federal Rule of Evidence 702, Antero moves to

exclude Reineke and Phend because their expert testimony “do[es]

not help the trier of fact to understand the evidence or to

determine a fact at issue, are not based on sufficient facts or

data, and are not the product of reliable principles and methods

reliably applied to the facts of this action” (Dkt. Nos. 96 at 1,

97 at 1). This is so, Antero insists, because their opinions are

not based on the language of the leases in question, but assert

numerous false premises or speculation, offer impermissible legal

conclusions, or are contrary to the facts of this case (Dkt. Nos.

96, 97). Antero’s motions amount to little more than a veiled

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

attempt to defeat class certification.

i. Applicable Law

Rule 702 governs the admissibility of expert witness

testimony. An expert must be “qualified . . . by knowledge, skill,

experience, training, or education.” Fed. R. Evid. 702. “In

assessing a proffered expert’s qualifications, the district court

must consider the proposed expert’s full range of experience and

training, not just his professional qualifications.” Good v. Am.

Water Works Co., Inc., 310 F.R.D. 274, 282 (S.D. W. Va. 2015)

(cleaned up) (citations omitted). “While relevant qualifications

are crucial, an expert need not be precisely informed about all

details of the issues raised in order to offer an opinion.” Id.

(internal quotations and citation omitted).

“Once qualified, an expert’s testimony is admissible if it

will assist the trier of fact and is (1) ‘based on sufficient facts

or data,’ (2) ‘the product of reliable principles and methods,’ and

(3) ‘the principles and methods [have been applied] reliably to the

facts of the case.’” Id. (quoting Fed. R. Evid. 702).

“Admissibility of such testimony is governed by a two-part test:

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

the evidence is admitted if ‘it rests on a reliable foundation and

is relevant.’” Id. (quoting Daubert v. Merrell Dow Pharm., 509 U.S.

579, 597 (1993)). Relevance and reliability are guided by, among

other things:

(1) whether the particular scientific theory

“can be (and has been) tested”; (2) whether

the theory “has been subjected to peer review

and publication”; (3) the “known or potential

rate of error”; (4) the “existence and

maintenance of standards controlling the

technique’s operation”; and (5) whether the

technique has achieved “general acceptance” in

the relevant scientific or expert community.

United States v. Crisp, 324 F.3d 261, 266 (4th Cir. 2003) (quoting

Daubert, 509 U.S. at 593–94).

“The court need not, however, consider all of the factors in

lockstep fashion.” Good, 310 F.R.D. at 282. “Neither Rule 702 nor

case law establish a mechanistic test for determining the

reliability of an expert’s proffered testimony.” Id. Rather, “‘the

test of reliability is flexible’ and ‘the law grants a district

court the same broad latitude when it decides how to determine

reliability as it enjoys in respect to its ultimate reliability

determination.’” United States v. Wilson, 484 F.3d 267, 274 (4th

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

Cir. 2007) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137,

141-42 (1999)).

“The gatekeeping role exercised by the district court is a

critical one.” Good, 310 F.R.D. at 283. “Inasmuch as expert

witnesses have the potential to be both powerful and quite

misleading, the court must ensure that any and all scientific

testimony is not only relevant, but reliable.” Id. (cleaned up)

(citations omitted). But the “inquiry to be undertaken by the

district court is ‘a flexible one’ focusing on the ‘principles and

methodology’ employed by the expert, not on the conclusions

reached.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th

Cir. 1999) (quoting Daubert, 509 U.S. at 594–95). “The court is not

obliged to determine that the proffered expert testimony is

irrefutable or certainly correct——as with all other admissible

evidence, expert testimony is subject to testing by vigorous

cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof.” Good, 310 F.R.D. at 283

(cleaned up) (citations omitted).

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

ii. Daniel T. Reineke, P.E.

Antero seeks to exclude Reineke’s proposed expert testimony

for a litany of reasons. In particular, it emphasizes that Reineke

never reviewed the leases or modifications that are the subject of

this litigation, and that his report is based on no more than one

common question of law or fact derived from the second amended

complaint (Dkt. Nos. 96, 96-1 at 4, 8-9). These arguments are

unavailing.

For example, Antero’s argument emphasizes how fact intensive

its royalty calculations are. It notes that its gas is sometimes

unprocessed, sold at different points of sale, and its post-

production expenses are sometimes deducted from royalties,

depending on a variety of circumstances that could vary from month

to month (Dkt. No. 96-1 at 11-19). While these facts are important

to whether this case should be certified as a class action, they do

not compel Reineke’s exclusion at this stage of the litigation.

This is especially so because the Court need not rely on Reineke’s

testimony when addressing the question of class certification.

Accordingly, the Court denies Antero’s motion to exclude Reineke

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

(Dkt. No. 96).2

iii. Donald A. Phend, C.P.A.

Similarly, in attempting to exclude Phend’s proposed expert

testimony, Antero recycles many of its earlier arguments, making

much of the fact that Phend was not asked to opine on the leases

and modifications in question, and that his testimony is based not

on facts but rather allegations contained in the second amended

complaint (Dkt. No. 97-1 at 8-12).

Antero further complains that Phend’s expert opinion

constitutes inadmissible legal opinion because it merely reiterates

the Plaintiffs’ theory of the case. Id. at 12. Next, it insists

that Phend’s opinion “that a common method was used to pay all

putative class members is not based on sufficient facts or data.”

Id. This is so, Antero argues, because its royalty calculations

depend on numerous factors, including whether the gas is processed

or unprocessed, where it is sold, and a variety of other factors

2 In denying this motion, the Court takes no position on the

ultimate admissibility of Reineke’s expert testimony.

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

that vary from well to well and month to month.3 Id. at 12-23.

These arguments lack merit. In practical effect, Phend is a

damages expert. For him to testify about damages, it matters not

whether he has reviewed the leases or has assumed Antero has the

legal obligation the Plaintiffs have alleged.4 Indeed, Phend is an

expert in oil and gas industry accounting, not interpreting the

language in oil and gas leases. While the Court in due course will

address the questions of law vigorously contested by Antero, it

3 Antero also contends that the Court should exclude Phend’s

testimony because his expert report and his supplemental and

rebuttal expert report are not sworn or signed under penalty of

perjury, and his supplemental report is improper rebuttal (Dkt. No.

111 at 13). The Court views this argument as waived, however,

because Antero failed to raise it in its opening brief. Mew

Sporting Goods, LLC v. Johansen, 992 F. Supp. 2d 665, 671 n.2 (N.D.

W. Va. 2014). And even if not waived, failure to sign an expert

report alone does not warrant exclusion. See, e.g., Ind. Ins. Co.

v. Hussey Seating Co., 176 F.R.D. 291, 294 (S.D. Ind. 1997)

(finding expert’s technical violation of Rule 26(a)(2)(B) by

failing to sign expert report was harmless). Moreover, as explained

below, because the Court will not consider Phend’s testimony for

purposes of class certification, it need not consider whether his

rebuttal report was improper.

4 Although Phend does not have the necessary information to

calculate damages (which is not surprising given that discovery,

thus far, has been limited to class certification), as Antero

itself recognizes “an estimate of potential damages is not relevant

at the class certification stage” (Dkt. No. 111 at 12).

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

need not consider Phend’s proposed expert testimony to rule on the

Plaintiffs’ motion for class certification. It therefore denies

Antero’s motion to exclude Phend (Dkt. No. 97).5

B. Motion to Strike

Antero also moves to strike certain declarations and exhibits

attached to the Plaintiffs’ motion for class certification (Dkt.

No. 142). It first moves to strike two paragraphs contained in the

declaration of attorney George A. Barton (“Barton”), arguing the

declaration contains improper legal conclusions and violates the

“witness-advocate rule.” Id. at 1-3. It further moves to strike the

declaration of attorney Taylor P. Foye (“Foye”) for the same

reasons, and also because it first appeared as an attachment to the

Plaintiffs’ reply brief. Id. Finally, Antero seeks to strike

Exhibit 3 because it contains improper legal conclusions, and

Exhibits 7, 8, 22, and 23 because they lack a proper foundation and

are unreliable. Id.

Antero’s motion to strike fails for two reasons. In the first

5 Again, in denying this motion, the Court takes no position

on the ultimate admissibility of Phend’s expert testimony.

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

place, it is untimely under the Scheduling Order. Cf. Fed. R. Evid.

103(a)(1)(A) (requiring a party to “timely . . . move[] to strike”

evidence to preserve appellate review (emphasis added)). Indeed,

although the declarations and exhibits Antero seeks to strike were

filed on August 2, 2019 (Dkt. Nos. 100, 101), Antero inexplicably

failed to move to strike them until November 18, 2019 (Dkt. No.

142). Cf. Spivey v. United States, 912 F.2d 80, 85 (4th Cir. 1990)

(concluding motion to strike affidavits was timely under Rule

103(a)(1)(A) when it was filed only nine days after they were

offered into evidence). Notably, this was over a month after the

Court’s class certification hearing on October 15, 2019 (Dkt. No.

134). See also id. In the second place, Antero’s motion is plainly

beyond the scope of the Court’s October 28, 2019 Order, which

directed the parties to submit memoranda of law addressing three

distinct questions, none of which bears a relationship to the

factual or legal basis for the motion to strike (Dkt. No. 141).

And even if timely filed, Antero’s motion lacks merit.

Although the Federal Rules of Civil Procedure do not provide

criteria for the admissibility of affidavits or declarations used

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

to address questions of class certification, personal knowledge is

important to the requisite analysis. See Soutter v. Equifax Info.

Servs. LLC, 299 F.R.D. 126, 129-131 (E.D. Va. 2014) (discussing why

evidence used at the class certification stage must be based on

personal knowledge). Additionally, courts have consistently

distinguished between testimony requiring “specialized knowledge”

within the purview of Rule 702, and “particularized knowledge that

the witness ha[s] by virtue of his position,” which is a

permissible foundation for lay witness testimony. Henderson v.

Corelogic Nat’l Background Data, LLC, No. 3:12CV97, 2016 WL 354751,

at *2-3 (E.D. Va. Jan. 27, 2016) (citing United States v. Chapman,

209 F. App’x. 253, 265 (4th Cir. 2006)) (explaining that a witness

who does nothing more than review and summarize data is not an

expert).

Here, neither attorney declaration falls within the purview of

expert testimony. Each merely identify and explain certain

information about which Barton and Foye have personal knowledge

based on their legal experience and review of the discovery in the

case. Such information is relevant to the class certification

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

questions of numerosity, commonality, predominance, and adequacy of

representation.

Nor does the witness-advocate rule prohibit consideration of

these attorney declarations. In Spivey v. United States, 912 F.2d

80, 84 (4th Cir. 1990), the Fourth Circuit upheld a decision to

strike an attorney affidavit submitted post trial to resolve a

factual dispute. There, our circuit court explained that the

factual dispute at issue “should not have been resolved by

affidavits in any case, and the submission of a post-trial

affidavit to counter defendants’ pre-trial motion in limine was

clearly not authorized by [Federal] Rule [of Evidence] 43(e).” The

court also explained that, “by offering his affidavit on a factual

issue, [the attorney] acted as a witness,” violating the

“elementary [rule] that counsel may not participate both as an

advocate and as a witness . . . .” Id.

Here, Barton and Foye’s affidavits were not submitted post

trial or to resolve a factual dispute, but rather to identify and

explain information relevant to the elements of numerosity,

commonality, predominance, and adequacy of representation. Nor does

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

the holding in International Woodworkers for America v. Chesapeake

Bay Plywood Corp., 659 F.2d 1259 (4th Cir. 1981), compel a

different conclusion. The issue in that case was not whether to

strike an attorney’s declaration, but rather whether the district

court properly disqualified an attorney as a Rule 30(b)(6) witness

on behalf of his client. Id. at 1272-73.

Unlike the testimony of a Rule 30(b)(6) witness, a declaration

is not the testimony of a party. Instead, it “‘reflects . . . the

personal knowledge of the declarant.’” Soutter v. Equifax Info.

Servs. LLC, 299 F.R.D. 126, 132 (E.D. Va. 2014) (emphasis omitted)

(citation omitted) (distinguishing between Rule 30(b)(6) testimony

and attorney declarations); see also Lott v. Westinghouse Savannah

River Co., Inc., 200 F.R.D. 539, 548-49 (D.S.C. 2000) (striking

attorney declarations in support of a motion for class

certification as evidence, but considering the declarations as

legal arguments). Thus, under the witness-advocate rule, proper

consideration of the declarations turns on personal knowledge,

which both Barton and Foye have.

This case is distinguishable from Bond v. Antero, 328 F.R.D.

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

187 (S.D. Ohio 2018), on which Antero relies. In that case, which

also involved class certification based on the language contained

in oil and gas leases, the district court held that summary

spreadsheets were not sufficient to support a finding of numerosity

because they listed all leaseholders in an entire gathering system

without identifying the specific type of lease to which each

leaseholder was a party. Id. at 194. Here, in stark contrast,

Exhibit 3 is limited to leases with gas royalty provisions matching

the Mutschelknaus or Matthey Leases that fall within the proposed

class definition (Dkt. No. 101-3 at 5). Moreover, the decision in

Bond was related to credibility, not admissibility.

Much of Antero’s argument turns on its contention that the

contested declarations and exhibits are inaccurate or unreliable.6

6 In particular, Antero argues that Exhibit 3 does not include

all of the relevant lease forms produced by Antero in discovery and

does not account for relevant lease modifications (Dkt. No. 142 at

2). It argues that Exhibits 22 and 23 are unreliable because they

assume that if one payee signs a lease modification, the entire

lease is modified and not simply that individual payee’s interest.

Id. It further argues that the contested exhibits improperly

include a lease to which Rine and Miller are a party that does not

form the basis of their breach of contract claim, thirteen leases

that Antero inadvertently produced in discovery, and eight

duplicated Mutschelknaus leases (Dkt. No. 145 at 7, 8).

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

Because these arguments speak to credibility, not admissibility,

the Court may weigh the information in these documents, as well as

the entire record and the arguments of both parties, when reviewing

the Plaintiffs’ motion for class certification.

Finally, Antero concedes that the Court may consider exhibits

in support of a reply, whether or not they rebut testimony, if it

chooses to do so based on good cause (Dkt. No. 142 at 3).7 Good

cause exists here because the contested exhibits, based on

documents prepared by Antero, do not present new information or

raise foundational issues,8 but rather rebut points in the motion

for class certification (Dkt. No. 114 at 8). As such, they are

relevant and need not be excluded.

C. Motion for Class Certification

Before turning to the merits of the Plaintiffs’ motion for

7 Notably, Antero’s argument that Exhibits 22 and 23 should be

stricken as untimely because they were attached to the Plaintiffs’

reply was first made in Antero’s own reply brief (Dkt. No. 145 at

10).

8 The fact that Antero provided Exhibits 7, 8, 22, and 23 in

discovery undermines any argument that the exhibits lack sufficient

foundation. Moreover, Antero does not argue that the exhibits are

not what they purport to be.

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

class certification, the Court first addresses a threshold question

that Antero has raised in numerous motions and memoranda of law

throughout this litigation. Antero has urged this Court to reject

the Plaintiffs’ primary contention that, based on the leases and

modifications at issue, it has an obligation under West Virginia

law to pay royalties without deducting post-production expenses

(Dkt. Nos. 96-1 at 3, 10 at n.3; 110 at 6-8, 7 at n.6; 97-1 at 3,

12 at n.5; 111 at 4-5, 5 n.1; 130 at 1, 4-5; 133 at 2-3, 114 at 12-

14, 14 n.10; 136 at 24-30, 59; 143 at 2). Indeed, it has

specifically asserted that “the Court must first resolve the

implications of Wellman and Tawney for commonality purposes” (Dkt.

No. 114 at 13).

Antero now advocates that “this deep dive into the merits is

premature” and violates the rule against one-way intervention (Dkt.

No. 143 at 1, 5-7). The Court agrees that it need not answer this

question at this stage in the litigation. Manuel v. Wells Fargo

Bank, Nat. Ass’n, No. 3:14CV238, 2015 WL 4994549, at *1 n.1 (E.D.

Va. Aug. 19, 2015) (noting that “class certification does not ask

about the merits of plaintiff’s claims, but rather determines

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

whether class certification is appropriate”); see also Good, 310

F.R.D. at 284 (noting that “[t]he likelihood of the plaintiffs’

success on the merits . . . is not relevant to the issue of whether

certification is proper” (alteration in original) (citation

omitted)).

Antero’s argument, however, serves to underscore that this

case presents two common questions of law and two common questions

of fact, including whether Wellman v. Energy Resources, Inc., 557

S.E.2d 254 (W. Va. 2001), and Estate of Tawney v. Columbia Natural

Resources, LLC, 633 S.E.2d 22 (W. Va. 2006), apply to market value

and proceed leases alike. And despite Antero’s contention

otherwise, this question and the others that are discussed in

detail below not only are common to the proposed class, but also

predominate over the fact-intensive question of damages.

With this perspective in mind, the Court turns to the merits

of class certification.

i. The Proposed Class

The Plaintiffs limit the proposed class to lessors with leases

containing language identical to the Mutschelknaus and Matthey

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

Leases, as follows:

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. 100-1 at 2-3).

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

ii. Applicable Law

The Plaintiffs have the burden of demonstrating that the

requirements for class-wide adjudication under Rule 23(b)(3) have

been met. Krakauer v. Dish Network, LLC, 925 F.3d 643, 654 (4th Cir

2019) (citing Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)).

Under Rule 23(a), the Plaintiffs must first demonstrate that:

(1) the class is so numerous that joinder of all members is

impracticable; (2) there are questions of law or fact common to the

class; (3) the claims or defenses of the representative parties are

typical of the claims or defenses of the class; and (4) the

representative parties will fairly and adequately protect the

interests of the class. Fed. R. Civ. R. 23(a).

Second, in order to obtain class certification under Rule

23(b)(3), the Plaintiffs must also demonstrate that questions of

law or fact common to the class members predominate over any

questions affecting only individual class members, and that a class

action is superior to other available methods for fairly and

efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3).

Finally, the Plaintiffs must demonstrate that the members of the

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

class are readily identifiable. EQT Prod. Co. v. Adair, 764 F.3d

347, 358 (4th Cir. 2014).

District courts must perform a “rigorous” analysis to

determine whether the class requirements are met. Gen. Tel. Co. of

Sw. v. Falcon, 457 U.S. 147, 161 (1982). This rigorous analysis

frequently requires an evaluation of the merits of the underlying

claims presented. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

2551-52 (2001).

iii. Rule 23(a) Requirements

The Court next analyzes whether the Plaintiffs have satisfied

the four requirements of Rule 23(a).

1. Numerosity

“[N]umerosity requires that a class be so large that ‘joinder

of all members is impracticable.’” Kay Co., LLC v. EQT Prod. Co.,

No. 1:13-CV-151, 2017 WL 10436074, at *6 (N.D. W. Va. Sept. 6,

2017) (alteration in original) (quoting Fed. R. Civ. P. 23(a)(1)).

“Impracticable does not mean impossible.” Robidoux v. Celani, 987

F.2d 931, 935 (2d Cir. 1993). Rather than relying on numbers alone,

courts should examine the specific facts of the case. Gen. Tel. Co.

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

of the Nw., Inc. v. EEOC, 446 US. 318, 330 (1980). Relevant factors

include “the estimated size of the class, the geographic diversity

of class members, the difficulty of identifying class members, and

the negative impact of judicial economy if individual suits were

required.” Christman v. Am. Cyanamid Co., 92 F.R.D. 441, 451 (N.D.

W. Va. 1981); see also In re Serzone Prods. Liab. Litig., 231

F.R.D. 221, 237 (S.D. W. Va. 2005) (listing same factors).

“No specified number is needed to maintain a class action

under [Rule] 23 . . . .” Cypress v. Newport News Gen. &

Nonsectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967). “When

a class is extremely large, the numbers alone may allow the court

to presume impracticability of joinder.” Hewlett v. Premier Salons,

Int’l, Inc., 185 F.R.D. 211, 215 (D. Md. 1997). Moreover, the

Plaintiffs need not “know precisely the size of the class, rather

it is necessary only to show that the class is so large as to make

joinder impracticable.” McGlothlin v. Connors, 142 F.R.D. 626, 632

(W.D. Va. 1992) (citations omitted).

Here, the Court readily concludes that the Plaintiffs have

satisfied their burden of demonstrating that the proposed class is

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

so numerous that “joinder of all members is impracticable.” Fed. R.

Civ. P. 23(a)(1). They have identified approximately 700 proposed

class members whose royalty interests are based on language

identical to the Mutschelknaus and Matthey Leases. Should the Court

later exclude leaseholders who were paid only royalties for

unprocessed gas, there undoubtedly will remain class members so

numerous that joinder is impracticable.

2. Commonality

Rule 23 next requires that “there are questions of law or fact

common to the class.” Fed. R. Civ. P. 23(a)(2). Rule 23(a)(2)’s

commonality requirement, however, “is subsumed under, or superseded

by, the more stringent Rule 23(b)(3) requirement that questions

common to the class ‘predominate over’ other questions.” Amchem

Prods., Inc. v. Windsor, 521 U.S. 591, 609 (1997). Accordingly, the

Court will consider commonality in its discussion of predominance

in Section II.C.iv.1.

3. Typicality

Rule 23 also requires that “the claims . . . of the

representative parties are typical of the claims or defenses of the

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

class.” Fed. R. Civ. P. 23(a)(3). In other words, “‘a class

representative must be part of the class and possess the same

interest and suffer the same injury as the class members.’”

Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001)

(quoting Falcon, 457 U.S. at 156). But “[t]he class representatives

and class members need not have suffered identical injuries or

damages.” In re Serzone Prods. Liab. Litig., 231 F.R.D. at 238

(emphasis added) (citing United Bhd. of Carpenters & Joiners of

Am., Local 899 v. Phoenix Assocs., Inc., 152 F.R.D. 518, 522 (S.D.

W. Va. 1994)). “A plaintiff’s claim may differ factually and still

be typical if ‘it arises from the same event or practice or course

of conduct that gives rise to the claims of other class members,

and if his or her claims are based on the same legal theory.’” Kay

Co., LLC, 2017 WL 10436074, at *9 (quoting Zapata v. IBP, Inc., 167

F.R.D. 147, 160 (D. Kan. 1996)).

Here, the Plaintiffs have satisfied their burden of

demonstrating that the representative parties, Romeo, Rine, and

Miller, are asserting breach of contract claims typical of the

proposed class. Although their claims may differ factually because

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

gas was extracted from different wells, gas was sold at different

points of sale, gas was transported to different locations, gas was

processed or unprocessed, or Antero took different types of

deductions for post-production expenses, the representative

Plaintiffs’ claims all arise from the same practice or course of

conduct and are based on the same legal theory. Indeed, all of the

breach of contract claims are based on the theory that Antero has

been unlawfully deducting post-production expenses from the

Plaintiffs’ royalty payments. And although the Plaintiffs’ damages

may vary based on the amount and frequency of Antero’s allegedly

unlawful deductions, “[t]he class representatives and class members

need not have suffered identical injuries or damages.” In re

Serzone Prods. Liab. Litig., 231 F.R.D. at 238 (citing Phoenix

Assocs., Inc., 152 F.R.D. at 522).

4. Adequacy of Representation

Rule 23 requires that “the representative parties will fairly

and adequately protect the interests of the class.” Fed. R. Civ. P.

23(a)(4). This determination involves a two-pronged inquiry: “(1)

whether class counsel are qualified, experienced, and generally

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

able to conduct the proposed litigation; and (2) whether the

representative’s claims are sufficiently interrelated to and not

antagonistic with the class’s claims as to ensure fair and adequate

representation.” Hewlett, 185 F.R.D. at 218 (citing Buford v. H &

R Block, Inc., 168 F.R.D. 340, 352 (S.D. Ga. 1996)). The latter

inquiry “serves to uncover conflicts of interest between named

parties and the class they seek to represent.” Windsor, 521 U.S. at

625.

Here, the Plaintiffs have satisfied their burden of

demonstrating adequacy for two reasons. First, because Antero did

not challenge the competency of Plaintiffs’ counsel, the Court

presumes they are “competent and sufficiently experienced to

prosecute vigorously the action on behalf of the class.” Hewlett,

185 F.R.D. at 218 (citing Zapata, 167 F.R.D. at 161).

Second, the interests of the proposed class representatives,

Romeo, Rine, and Miller, do not conflict with those of the proposed

class members. Despite Antero’s claim that Rine and Miller have

conflicting remedial interests because they have environmental

concerns and “are not interested in maximizing royalties” (Dkt. No.

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

114 at 23 n.23), the proposed class representatives seek the same

type of relief based on the same theory of the case. They seek

compensatory damages, plus interest, for their breach of contract

claims (Dkt. No. 31 at 13-14). Indeed, they seek no environmental

relief. Id. Accordingly, the proposed class representatives’ claims

are “sufficiently interrelated to . . . ensure fair and adequate

representation.” Hewlett, 185 F.R.D. at 218 (citing Buford, 168

F.R.D. at 352).

iv. Rule 23(b) Requirements

The Court turns now to whether the Plaintiffs have satisfied

the requirements of Rule 23(b)(3).

1. Predominance

A class action can be maintained under Rule 23(b)(3) if “the

court finds that the questions of law or fact common to class

members predominate over any questions affecting only individual

members, and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.”

Fed. R. Civ. P. 23(b)(3). “The predominance inquiry ‘tests whether

proposed classes are sufficiently cohesive to warrant adjudication

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

by representation.’” Lienhart, 255 F.3d at 147 (quoting Amchem

Prods., Inc., 521 U.S. at 623). Thus it “focuses on whether

liability issues are subject to class-wide proof or require

individualized and fact-intensive determinations.” Singleton v.

Domino’s Pizza, LLC, 976 F. Supp. 2d 665, 677 (D. Md. 2013) (citing

Cuthie v. Fleet Reserve Ass’n, 743 F. Supp. 2d 486, 499 (D. Md.

2010)).

“Deciding whether common questions predominate over individual

ones involves a qualitative, rather than quantitative, inquiry.”

Id. (citing Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 429

(4th Cir. 2003)). Critically, “[c]ommon liability issues may still

predominate even when individualized inquiry is required in other

areas.” Good, 310 F.R.D. at 296 (citing Gunnells, 348 F.3d at 429).

“At bottom, the inquiry requires a district court to balance common

questions among class members with any dissimilarities between

class members.” Id. (citing Gunnells, 348 F.3d at 427-30).

Conducting the requisite balancing test here, the Court

readily concludes that the common questions of law and fact

presented in this case far outweigh the dissimilarities in damages

among class members that likely will require individualized

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

inquiries. Indeed, this case presents four common questions of law

and fact:

(1) Do Wellman and Tawney apply to both market value

and proceed leases?

(2) If so, do the leases at issue, as modified by any

subsequent modifications (if any), have the

specific language required by Wellman and Tawney

that would allow Antero to deduct post-production

expenses from the Plaintiffs’ royalty payments?

(3) If not, did Antero unlawfully deduct post-

production expenses from the Plaintiffs’ royalty

payments?

(4) If so, how did Antero calculate these deductions?

Of these common questions, the first three are strictly

limited to liability. If the answer to the first question is no, as

Antero has repeatedly insisted, it may not be liable for unlawfully

deducting post-production expenses. But if the answer is yes, the

next common question is whether the leases at issue include the

specific language required by Wellman and Tawney that would allow

Antero to lawfully deduct post-production expenses from the

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

Plaintiffs’ royalties. If they do, no liability would follow. But

if they do not, the next common question is whether Antero took

deductions; if it did not, no liability would follow. But if Antero

took deductions impermissibly, the next question is how did it

calculate these deductions, and what damages has each class member

suffered?

Antero has effectively conceded that it uses the same method

to calculate its deductions for post-production expenses: “Antero

states that the method for calculating the value of the gas at the

well and the net value at the factory of the manufactured products,

includings NGLs, is the same for [the] Plaintiffs and all

Mutschelknaus/Matthey Putative Class Members . . . .” (Dkt. No.

101-16 at 7). Indeed, it describes the “method,” not methods, and

states that it is “the same” for the named plaintiffs and putative

class members. Id. Antero’s subsequent qualification demonstrates

only that, while it uses the same method to calculate deductions

for post-production expenses, “the calculation itself is

individualized and does not yield the same results for each

Plaintiff or Mutschelknaus/Matthey Putative Class Member because

there are a number of variables integral to the methodology that

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

make each calculation unique.” Id. at 7-8. In other words, although

Antero employs the same method to calculate its deductions, that

method produces different results (i.e., damages).

But “[c]ourts in every circuit have uniformly held that the

[Rule] 23(b)(3) predominance requirement is satisfied despite the

need to make individualized damage determinations . . . .” Kay Co.,

LLC, 2017 WL 10436074, at *11 (citations omitted). And conducting

the necessary balancing test, it is clear that “[t]he common

questions discussed above predominate” and answering these

questions “will largely dispose of this litigation.” Id. at 12.

Tellingly, “[n]umerous courts in [this and] other jurisdictions

have certified class actions involving claims arising from natural

gas leases, the royalties paid under such leases, and/or the

deductions taken from such royalty payments, among other related

issues.” Id. (compiling cases).

Although Antero contends different modifications affect the

leases at issue, the Court need only address the specific lease

language if it answers the first common question in the

affirmative. If there are various lease modifications, these leases

can be divided and evaluated in subclasses. See id. at 13 (noting

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

that, if necessary, the court can evaluate different leases in

subclasses). If the Court proceeds to the second common question,

the leases, even as modified, “[e]ither . . . satisf[y] the Tawney

standard or [they] do[] not,” which is strictly a question of law.

Id. In sum, the four common questions of law and fact listed above

predominate over the uncommon question of damages suffered by the

Plaintiffs.

2. Superiority

Rule 23(b)(3) also requires that the proposed class action be

superior to other methods of adjudication so that the class action

will “‘achieve economies of time, effort, and expense, and promote

. . . uniformity of decision as to persons similarly situated,

without sacrificing procedural fairness or bringing about other

undesirable results.’” Windsor, 521 U.S. at 615 (quotation

omitted). When determining whether a class action is superior under

Rule 23(b)(3), courts consider four relevant guidelines:

(A) the class members’ interests in

individually controlling the prosecution or

defense of separate actions;

(B) the extent and nature of any litigation

concerning the controversy already begun by or

against class members;

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

concentrating the litigation of the claims in

the particular forum; and

(D) the likely difficulties in managing a

class action.

Fed. R. Civ. P. 23(b)(3)(A)-(D); see also Hewlett, 185 F.R.D. at

220 (noting that these subsections are “guidelines”).

Here, Antero contends that the Plaintiffs have not established

superiority because (1) they have not demonstrated that anyone else

wants to join this class action; (2) there are no barriers to

individual litigation; (3) other plaintiffs are already pursuing

the same breach of contract claims involving the same leases; (4)

this is a local matter governed by West Virginia substantive law;

and (5) a class action would be unmanageable (Dkt. No. 114 at 24-

25). Each claim is unavailing.

First, Rule 23 does not require the Plaintiffs to

affirmatively show that proposed class members want to join the

class action. See Fed. R. Civ. P. 23. Nor does Rule 23 require

barriers to individual litigation. Id. Rather, it requires only

that the class be “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). As discussed earlier,

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

that requirement is easily satisfied here. See supra Section

II.C.iii.1.

Second, “the interest in personal control of the litigation is

minimal in this context.” Soutter v. Equifax Info. Servs., LLC, 307

F.R.D. 183, 218 (E.D. Va. Apr. 15, 2015) (citation omitted). This

is particularly so where, as here, the alleged injuries stem from

the same course of conduct and raise the same legal and factual

questions. See White v. Imperial Adjustment Corp., No. 99–CV–3804,

2002 WL 1809084, at *14 (E.D. La. Aug. 6, 2002) (“Where, as here,

the focus of the proceeding will be the alleged course of conduct

of the defendants in conscious disregard of the consumers’ rights,

the purpose of which is to determine whether statutory and punitive

damages are due, the interest in personally controlling the

litigation is small.”). Moreover, the fact that only 11 of

approximately 700 class members have already pursued their own

breach of contract claims against Antero supports the conclusion

that there is little interest in individual litigation. See

Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 425 (4th Cir.

2003) (noting that there was no great deal of interest in

individual litigation when, of 1400 potential class members, “there

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

was a ‘dearth of individual cases filed until now’”). In addition,

“[t]o the extent any individual does wish to retain control, . . .

the opt-out mechanism will be available.” Soutter, 307 F.R.D. at

218.

Third, although 11 proposed class members have already elected

to individually pursue their breach of contract claims against

Antero, this fact, alone, does not weigh against class

certification when the proposed class includes approximately 700

members. See Fed. R. Civ. P. 23(b)(3)(B) (requiring court to

consider “the extent and nature of any litigation concerning the

controversy already begun by or against class members”). Indeed,

these cases have already been consolidated for discovery purposes

because they “involve common questions of law and fact” (Civil

Action No. 1:18cv30, Dkt. No. 32 at 1).

Fourth, allowing the remaining members of the proposed class

to pursue a class action “serves the interest of judicial economy.”

Thomas v. FTS USA, LLC, 312 F.R.D. 407, 426 (E.D. Va. Jan. 7,

2016). “It saves time and resources to resolve the issues presented

on a class-wide basis rather than to” resolve several hundred

motions for summary judgment “on the same issues.” Id. In other

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

words, there is a strong desirability to concentrate the litigation

of these claims in this Court for “consolidated resolution of the

common issues.” See Fed. R. Civ. P. 23(b)(3)(C) (requiring courts

to consider “the desirability or undesirability of concentrating

the litigation of the claims in the particular forum”); see also

Soutter, 307 F.R.D. at 218 (“[E]ven if just a fraction of the class

members were to bring individual suits, the adjudication of the

common issues in a single proceeding would be more efficient than

the separate adjudication of individual claims.” (citation

omitted)).

Finally, “the similarity of factual and legal issues indicates

that a class action would be manageable . . . .” See Fed. R. Civ.

P. 23(b)(3)(D) (requiring courts to consider “the likely

difficulties in managing a class action”). Tellingly, Antero does

not explain why this class action would be unmanageable under the

circumstances (Dkt. No. 114 at 25). Nor could it. As previously

discussed, this case presents four common questions of law and fact

that predominate over the individualized question of damages. See

supra Section II.C.iv.1. Answering these common questions in one

class action will not only be manageable, but also more efficient.

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

In sum, the Plaintiffs proposed class action is far superior to

individual litigation.

3. Ascertainability

Although not specifically required, the Fourth Circuit has

“repeatedly recognized that Rule 23 contains an implicit threshold

requirement that the members of a proposed class be ‘readily

identifiable.’” Adair, 764 F.3d at 358 (citations omitted). This

implied rule has regularly been described “as an ‘ascertainability’

requirement.” Id. (citations omitted). “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.” Id. (citations omitted). “The plaintiffs need not be

able to identify every class member at the time of certification.”

Id. “But if class members are impossible to identify without

extensive and individualized fact-finding or mini-trials, then a

class action is inappropriate.” Id. (cleaned up) (citations

omitted).

Here, the Plaintiffs’ proposed class is readily identifiable,

and Antero’s claims otherwise lack merit. To start, the proposed

class is limited to “[p]ersons and entities, including their

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

respective successors and assigns, to whom Antero has paid

royalties . . . on Natural Gas . . . .” (Dkt. No. 100-1 at 2-3

(emphasis added)). Although Antero claims that its “summary royalty

reports” are limited to current payees and that it cannot identify

former royalty owners “without resort[ing] to public title

records,” these claims are simply belied by the evidence (Dkt. No.

114 at 7).

Indeed, Antero’s Rule 30(b)(6) witness, Alvyn Schopp,

confirmed during his deposition that its summary royalty reports

are a summary of all payments from 2010 to 2018 (Dkt. No. 101-8 at

22). He also confirmed that the summary royalty reports identified

payees by payee number, and that Antero’s accounting system

maintains information about royalty calculations and payments. Id.

at 20-21. Moreover, Phil Yoo, an Antero employee in charge of its

accounting department, confirmed that Antero maintains electronic

information of all royalty payments it has made to payees since

2010, even though that information spans two different accounting

systems: Excalibur (2010 to 2013 or 2014) and Enertia (2013 or 2014

to present) (Dkt. No. 119-5 at 4). In other words, although Antero

has not yet identified the potential class members by name, it

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

maintains accounting information that makes them readily

identifiable, thereby satisfying Rule 23’s implicit requirement.

4. Definition and Appointments

For the reasons discussed, the Court will certify 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

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

or has been a working interest owner in a well

produced by Antero in West Virginia; and

(4) Antero.

(Dkt. No. 100-1 at 2-3). The Court further excludes from this class

any royalty interest owner who has never had their royalty payments

reduced by Antero for their related share of post-production

expenses. The Court also excludes any person involved in related

litigation, pursuing the same claim, against the same defendant,

based on the same facts and circumstances.

Next, the Court appoints Romeo, Rine, and Miller to serve as

class representatives because their claims are typical of the class

as required by Rule 23(a)(3), and they will fairly and adequately

protect the interests of the class as required by Rule 23(a)(4).

And considering the requirements of Rule 23(g)(1)(A), the Court

concludes that Larry Lee Javins, II, George A. Barton, and Howard

M. Persinger, III are knowledgeable and experienced in class action

litigation, making them well qualified to represent the Plaintiffs

(Dkt. Nos. 101-3, 101-17, 101-18). Accordingly, the Court appoints

Larry Lee Javins, II, George A. Barton, and Howard M. Persinger,

III as class counsel.

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

III. CONCLUSION

For the reasons discussed, the Court:

• DENIES Antero’s motions to exclude (Dkt. Nos. 96, 97);

• DENIES Antero’s motion to strike (Dkt. No. 142);

• GRANTS the Plaintiffs’ motion for class certification (Dkt.

No. 100);

• CERTIFIES this case as a class action pursuant to Rule

23(b)(3);

• APPOINTS Romeo, Rine, and Miller as class representatives;

• APPOINTS Larry Lee Javins, II, George A. Barton, and Howard M.

Persinger, III as class counsel pursuant to Rule 23(g);

• ORDERS class counsel to submit a proposed Notice of

Certification to the defined class to be mailed to members of

the class in accordance with Rule 23(c)(2)(B) within 30 days

of the date of this Order;

• SCHEDULES a status conference by telephone for Tuesday, April

21, 2020, at 12:15 P.M., to further schedule the case; and

• DIRECTS lead counsel for the Plaintiffs to arrange the

conference call and provide dial-in information to all parties

ROMEO, ET AL. V. ANTERO 1:17CV88

MEMORANDUM OPINION AND

ORDER DENYING MOTIONS TO EXCLUDE

[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE

[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION

[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS

REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE

and the Court, by email to candace_levitsky@wvnd.uscourts.gov,

by Friday, April 17, 2020.

It is so ORDERED.

The Court DIRECTS the Clerk to transmit copies of this

Memorandum Opinion and Order to counsel of record.

DATED: March 23, 2020.

/s/ Irene M. Keeley

IRENE M. KEELEY

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.