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Donald C. Frederick, et al., and All Other Persons Similarly Situated v. Range Resources - Appalachia

March 17, 2011

DONALD C. FREDERICK, ET AL., AND ALL OTHER PERSONS SIMILARLY SITUATED,
PLAINTIFFS,
v.
RANGE RESOURCES - APPALACHIA, LLC,
DEFENDANT.



The opinion of the court was delivered by: District Judge McLaughlin

MEMORANDUM OPINION

McLAUGHLIN, SEAN J., J.

Presently pending before the Court is a Motion for Final Approval of Settlement [Doc. 63] and a Joint Supplemental Motion for Final Certification of Class and Approval of Settlement [Doc. 80] between the Plaintiff class and Defendant, Range Resources-Appalachia, LLC ("Range Resources"). Also before the Court is a Motion for Attorney Fees and Plaintiff Reimbursements filed by Plaintiffs. [Doc. 68]. For the reasons which follow, the Court will approve the proposed Settlement and grant Class Counsel's request for attorney fees.

I. BACKGROUND

Plaintiffs are the owners of royalty interests in natural gas produced and sold by Range Resources. In their initial Complaint, Plaintiffs asserted claims for violation of the Pennsylvania Guaranteed Minimum Royalty Act ("GMRA")(Count I)*fn1 , Breach of Oil and Gas Leases (Count II), Conversion (Count III), and Unjust Enrichment (Count IV). Plaintiffs also requested injunctive relief and a declaration that the natural gas leases which provide for their royalty interests be "automatically terminated" as a result of the asserted violations. Plaintiffs' primary contention was that the GMRA precluded Range Resources from deducting the costs of transporting, processing, and marketing natural gas (collectively referred to as "post-production costs") after it is captured from the gas well. Plaintiffs contended that by so doing, their royalty payments fell below the statutory minimum of 1/8 provided for in the GMRA.

During the pendency of a motion to dismiss filed by Range Resources, the Pennsylvania Supreme Court issued a decision in Kilmer v. Elexco, 990 A.2d 1147 (Pa. 2010), wherein the Court held that deducting post-production costs from the gross sale proceeds before calculating the royalty did not violate the GMRA. Id. In the wake of Kilmer, Plaintiffs withdrew their challenge to the legality of the post-production cost deductions and filed an Amended Complaint challenging the propriety of the amounts deducted by Range Resources and seeking a court-ordered accounting. Specifically, Plaintiffs asserted that the Range Resources had improperly reduced the amounts of their royalty payments by: a) improperly using the point of sale volume of gas, rather than the volume of gas collected at the well head, to calculate the gross royalty; b) improperly adjusting the volumes by applying temperature and pressure; c) improperly assessing and deducting the costs of marketing the gas; d) assessing and withholding a management fee; and e) failing to pay royalties on the value of the sale of liquid hydrocarbons, a product extracted from the gas and sold separately by Range Resources. (Amended Complaint, ¶ 10).

Range Resources denied each of the allegations set forth above and raised several potential defenses including the general assertion that none of the alleged deductions were improper under Kilmer. (See Amended Answer).

Thereafter, the Court was informed by the parties that a tentative settlement had been reached. Pursuant to the proposed Settlement Agreement, Plaintiffs filed an Omnibus Motion seeking: 1) an order certifying the settlement class for settlement purposes; 2) preliminary approval of the proposed class Settlement Agreement; 3) appointment of class counsel; 4) authorization to disseminate class notice; and 5) a date for a formal hearing on the proposed settlement. Defendants filed a responsive brief wherein they urged the Court to grant Plaintiffs' motion and preliminarily approve the settlement. In brief, the proposed Settlement Agreement provides for an initial payment of $1,750,000, representing a refund of approximately 14% of the past charges contested in this litigation. It also purports to amend each of the leases between the class members and Range Resources by imposing reasonable caps on future post-production deductions at an agreed upon amount so as to avoid future litigation. The parties estimate the value of this portion of the Settlement at approximately $20,343,648. (See Settlement Agreement, Exhibit B, Projected Class Savings). Finally, the Settlement Agreement includes a payment of attorney fees from the common fund consisting of 25% of the initial payment and future payments at the rate of one-half ($0.005) cent per MCF of gas produced over the 60 months following court approval of the settlement.

On October 13, 2010, the Omnibus Motion was granted and the following class was preliminarily certified:

a) Class Membership. The membership of the Class shall consist of Persons who held a Royalty Interest in any Pennsylvania and/or Ohio oil and/or gas estate at any time after September 15, 2004 that was, is or became Owned by Range, its predecessors or affiliates at any time prior to [the date of this Order].

b) Exclusions. Notwithstanding the foregoing, there shall be excluded from the Class,

i) Royalty Interest, to the extent included in the settlement of the class claims certified in the matter Charton v. MB Operating Co., Inc., Case No. 90-CV-110417 (Court of Common Pleas, Tuscarawas County, Ohio);

ii) A Royalty Interest, to the extent arising under an instrument which expressly prohibits the deduction of Post Production Costs.

iii) Any Person electing to be excluded from the Class;

iv) A Royalty Interest in any Ohio oil or gas estate, which estate became Owned by Range on or after April 1, 2010; and

v) A Royalty Interest in an Ohio oil or gas estate, which estate is among the undeveloped deep rights Owned by Range in Belmont, Columbiana and Jefferson County, Ohio that were retained by Range following the sale of Range's remaining Ohio oil and gas properties to an unrelated party on March 30, 2010.

See Omnibus Motion, Ex. 1. In so doing, I concluded that the Rule 23(a) elements of numerosity, commonality, typicality and adequacy of representation had all been satisfied and that Plaintiffs had further demonstrated the Rule 23(b)(3) elements of predominance and superiority. (See Memorandum Opinion and Order, 10/13/2010, Doc. 59). I also provisionally approved the Settlement Agreement and directed Class Counsel to provide notice of the proposed settlement to prospective class members in the fashion specified in the Omnibus Motion. As of December 10, 2010, notice had been mailed to all known members of the class, totaling 25,502 persons. As discussed more fully below, no member of the prospective class objected to the proposed Settlement, and only 59 prospective class members opted out. (Fairness Hearing, Transcript, p. 42).

A Fairness Hearing ("Hearing") on the proposed Settlement was held on January 10, 2011. In addition to presentations from counsel on issues germane to the fairness of the proposed settlement, expert testimony was also presented. Allen C. Barron, President of Ralph E. Davis Associates, Inc., an independent consulting firm, testified as to the opinions set forth in his expert report wherein he concluded that the monetary value attributed to the post-production costs was reasonable and consistent with industry standards. In addition, he opined that the projected future savings to the class, based upon Range Resources' projections as to future drilling, appeared reasonable. Dr. Harvey S. Rosen, an economist, testified as to the present value of the projected royalty savings to the class as well as the attorney fee payments contemplated by the Settlement Agreement.

Class Counsel explained at the Hearing that the parties had determined that the total amount of post-production costs deducted from royalty payments stemming from leases controlled by the class members during the relevant time period was $12,544,892. (Settlement Agreement, Exhibit A; Transcript, Fairness Hearing, p. 18). Class Counsel further explained that the post-production costs had been broken into various categories including, for instance, marketing fees, transportation, compression and dehydration costs, and third party pipeline gathering charges. Class Counsel estimated that the "lion's share" of the overcharges involved the assessment of marketing fees and some of the third party pipeline gathering and transportation charges. (Transcript, Fairness Hearing, pp. 18-28). Based upon his review of the record, Class Counsel estimated that the best possible recovery that the class could expect to receive at trial as to the post-production cost claim was approximately 18% of $12,544,892, or $2,000,000. (Transcript, Fairness Hearing, p. 28).

As to the cap on future post-production costs, Class Counsel explained at the Hearing that the proposed Settlement Agreement imposes, by way of an amendment to each of the leases, a cap on the amount of costs that can be deducted by Range Resources prior to calculation of royalties in the future. The parties estimate that this cap on deductions will provide an additional $20,343,648 in projected royalty savings to the class over the next five years. (Settlement Agreement, Exhibit B, Projected Class Savings).

II. APPROVAL OF THE PROPOSED CLASS SETTLEMENT AGREEMENT

Federal Rule of Civil Procedure 23(e) instructs that a class action may not be dismissed or compromised without the approval of the Court and notification to all class members. Fed. R. Civ. P. 23(e). This requires a district court to "independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interest of those whose claims will be extinguished." In re Cendant Corp. Litig., 264 F.3d 201, 231 (3rd Cir. 2001), cert. denied sub nom. Mark v. California Public Employees' Retirement Sys., 535 U.S. 929 (2002) (citation omitted). In so doing, the district court acts as a "fiduciary guarding the rights of absent class members" by ensuring that the proposed settlement is fair to all members of the class. Id.

A district court may only approve the settlement of a class action if the settlement is "fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(2). In determining whether a proposed class action settlement is fair, reasonable and adequate, courts in this circuit have traditionally considered the criteria set forth in Girsh v. Jepson, 521 F.2d 153, 157 (3rd Cir.1975). These nine factors include: (1) the complexity, expense, and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund in light of all the attendant risks of litigation. Id.

The Girsh factors are not exhaustive, however, and the Third Circuit has advised that, "because of a 'sea-change in the nature of class actions' since Girsh was decided in 1975, district courts should also consider other potentially relevant and appropriate factors."

In re AT & T Corp., 455 F.3d 160, 165 (3rd Cir. 2006) (citing In re Prudential Ins. Co. America Sales Practice Litigation Agent Actions, 148 F.3d 283, 323 (3rd Cir. 1998)). These may include, for example:

[T]he maturity of the underlying substantive issues, as measured by the experience in adjudicating individual actions, the development of scientific knowledge, the extent of discovery on the merits, and other factors that bear on the ability to assess the probable outcome of a trial on the merits of liability and individual damages; the existence and probable outcome of claims by other classes and subclasses; the comparison between the results achieved by the settlement for individual class or subclass members and the results achieved-or likely to be achieved-for other claimants; whether class or subclass members are accorded the right to opt out of the settlement; whether any provisions for attorneys' fees are reasonable; and whether the procedure for processing individual claims under the settlement is fair and reasonable.

Id. (citations omitted). The proponents of the settlement bear the burden of proving that these factors weigh in favor of approving the settlement. Erie County Retirees Ass'n v. The County of Erie, 192 F.Supp.2d 369, 373 (W.D. Pa. 2002) (citing In re Cendant Corp. Litig., 264 F.3d at 232).

I now consider the relevant Girsh factors in light of the present record.

1. The Complexity, Expense and Likely Duration of the Litigation The first Girsh factor requires consideration of "the probable cost, in both time and money, of continued litigation" so as to determine the degree to which the class would benefit from settling the class claims amicably. Erie County Retirees Ass'n, 192 F.Supp.2d at 373 (citing In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785 (3rd Cir. 1995)).

I find that the continued litigation of this action through trial would entail a significant expenditure of time and money. The subject matter of this case is highly complex. The process by which oil and gas is drilled, extracted, transported, and eventually sold is a highly technical and sophisticated science. (Transcript, Fairness Hearing, pp. 29, 40-41). In addition, the documentary evidence in this case is voluminous and detailed. Both counsel contend, and I agree, that presenting this case to a jury unfamiliar with the complexities of the oil and gas industry would, at a minimum, be an arduous and challenging process.

For the foregoing reasons, I conclude that this factor weighs heavily in favor of approval of the proposed settlement.

2. The Reaction of the Class to the Settlement

This factor "attempts to gauge whether members of the class support the settlement." In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 317 (3rd Cir. 1998). In assessing the reaction of the class, a court may consider the percentage of opt outs and the number and "vociferousness" of any objectors. Id.

The record reflects that notice was mailed to all 25,502 persons in the class and that only 59 persons, representing well less than one percent of the total, opted out of the class action. (Transcript, Fairness Hearing, p. 42). No objections have been filed. Although courts must be "cautious about inferring support from a small number of objectors to a sophisticated settlement," see G.M. Trucks, 55 F.3d at 812, in this instance, the complete lack of negative response from the class suggests that class members are overwhelmingly favorable towards the proposed Settlement. See In re Rent-Way Securities Litig., 305 F.Supp.2d 491, 501-02 (W.D. Pa. 2003) (holding that "the paucity of objectors suggests overwhelming class-wide support for the proposed Settlement"); Shlensky v. Dorsey, 574 F.2d 131, 148 (3rd Cir. 1975) (noting that "the overwhelming majority of [class members] have not objected to the settlement"). This factor, therefore, weighs in favor of settlement approval.

3. The Stage of the Proceedings and Amount of Discovery Completed

The third Girsh factor requires the Court to consider the degree to which the litigation has developed prior to the proposed settlement in order to determine whether "counsel had an adequate appreciation of the merits of the case before negotiating." In re Cendant, 264 F.3d at 235. Class Counsel began investigating the merits of this action over four years ago, in October, 2006, on behalf of several clients including the named Plaintiffs. Since that time, counsel has devoted approximately 2,000 hours to researching claims, drafting briefs and motions, consulting with clients, exploring settlement options with Range Resources, and evaluating "thousands of pages of discovery." (Transcript, Fairness Hearing, pp. 39-40; Supplemental Submissions in Support of Application for Attorney Fees, pp. 1-2; Supplemental Submissions, Ex. 1, Attorney Time Records). The record further reflects that Range Resources has provided voluminous discovery including past financial and production data relevant to the leases as well as sensitive information as to their future business plans. (Transcript, Fairness Hearing, pp. 60-61). In ...


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