Wednesday, August 20, 2014
With respect to the classes where the issue was the ownership of the coalbed methane, the appeals court held that the District Court did not address in sufficient detail the difficulties of figuring out who are the members of the class, when "numerous heirship, intestacy, and title defect issues plague many of the potential class members’claims to the gas estate." I can see how this is a problem, having wrestled with essentially this very task in miniature for a couple of years. The heirs are spread out, their wills were not always written with these royalties in mind, many of them died intestate, some of them are under-aged, some of them are incommunicado, every family has its own story. On the other hand, the gas companies are regularly gathering information about who owns what - they usually know what they are missing.
More interestingly, the appeals court ruled that the District Court has to rule in advance of class certification on the big legal issue in the case, which is whether the Virginia Supreme Court's decision in the Harrison-Wyatt case resolves the ownership of coalbed methane in all cases or even many cases where there is a split mineral estate. This is good news or bad news for the members of the class - if the District Court rules that there is a single answer for all the non-coal owners, then all that is left is proving who they are. If the Court rules that there is not a single answer, then there will be no class action and the non-coal owners are left to try to litigate or deal with the coal owners over the meaning of their respective deeds, which has resulted in some easy money for the coal owners in some cases. In other cases, the coal owners have not claimed to own the coalbed methane. The opinion seems to suggest that a single answer is unlikely, unless the classes are somewhat redefined and narrowed. The panel suggested that "Harrison-Wyatt may provide a common answer to the ownership question for a class of gas estate owners whose severance deeds convey coal and only coal" and that "the plaintiffs may be able to identify a finite number of variations in deed language, such that the ownership question is answerable on a subclass basis." The District Court did not attempt to figure out how many deeds are like other deeds. Similarly, the appeals court suggested that there needed to be more detailed analysis of the language pertaining to royalties in the different leases, in the classes involving leased interests, such that for example the commonality requirement would be satisfied for landowners who all signed the same standard form of lease from CNX.
Finally, the appeals court concluded that the District Court has erred in certifying a class on the issue of the underpayment of royalties, without getting farther into the merits of what if anything the gas companies were doing that affected the payment of royalties. The District Court needed to focus more on whether common practices in calculating royalties were the cause of invalid payments, and not merely the nature and existence of common practices.
Finally, the appeals court required the District Court to look harder at the question of whether class treatment in federal court in the best way to proceed, while acknowledging that "collective action may offer the only realistic opportunity to recover" for the many individuals with small claims that would not support collection efforts outside of a group, because of legal fees.
The opinion concludes: "We recognize that there are numerous CBM owners in Virginia who haven’t received a penny of CBM royalties and others who may have gotten less than their due. We are not unsympathetic to their plight. But sympathy alone cannot justify certification under Rule
23. We therefore vacate the district court’s grant of the plaintiffs’ motions for class certification, and remand the case for further proceedings consistent with this opinion."
Tuesday, August 19, 2014
Thursday, July 10, 2014
Years ago I represented an older woman in a case before Judge Turk. She was a super lady, somehow referred to me by the NAACP. The lawyer on the other side was from D.C. The security officer asked if I wanted the hearing in the courtroom. I tried not to laugh and said no, so we all went back into the library, gathered around a single table - my client, her daughter, son-in-law, and grandchild, the judge, and opposing counsel. Baby Girl his little dog was there. It was more like a prayer meeting than a summary judgment hearing, with a few amens from the congregation. The judge talked to everybody - including the little girl - about everything, then declared the case needed to be settled and got the magistrate judge on the phone and set the date for a settlement conference on the spot, and told the D.C. lawyer to offer something. The D.C. lawyer was a bit non-plussed. The gist was that Judge Turk thought we had no case but wanted us not to go away empty-handed - even if all we got was some kind words from him.
Roy Wolfe, the former magistrate, told me that there were no rules in the Western District other than Judge Turk's hearsay rule, which was "I'll let it in for what it's worth." A few years later, at the first trial I had before Judge Turk, I impeached the plaintiff's expert pretty well I thought, to the point I asked Judge Turk to rule that his opinions were not even admissible. The judge said no, he would let it in for what it's worth, with an inflection that suggested it was worth nothing. It was all I could do not to laugh.
Judge Turk loved juries. He figured that they would get it right, and if they didn't he could fix it. Judge Williams used to tell the story that Judge Turk was the only judge in America to ever try an ERISA case to the jury. At the memorial service for Judge Williams, I told the story of the juror who called me after a trial, which scared me to death. When we went in for post-trial motions, the first thing the judge said was "fellas, it's good to see ya, now tell me, what have you heard about what the jury was thinking when they decided this case?" Again I tried not to laugh.
One of the security guys in Abingdon told me a story once about the case where Judge Turk did not shake the criminal defendant's hand. The defendant was in court for violating his house arrest. The judge was unconvinced by his excuses. He was a restaurant owner. One of his character witnesses testified how his goal in life was to own a restaurant, and how much the defendant had helped him toward that goal. "Stick around," Judge Turk said. "There's going to be a restaurant up for sale here in just a few minutes." I don't know if that story is true but if not it ought to be.
Tuesday, June 24, 2014
Tuesday, February 04, 2014
Monday, January 27, 2014
Tuesday, January 07, 2014
For those who find these topics interesting, there is a session titled "Democracy of the Dead: The Relevance of Legal History in Modern Litigation” on the agenda for the winter meeting of The Virginia Bar Association in Williamsburg later this month.