HomeMy WebLinkAbout20080048.tiff DISTRICT COURT
CITY AND COUNTY OF DENVER
1437 Bannock Street
Denver, CO 80202
Plaintiff:
RAYMOND AND SALLY MILLER, ET AL., on behalf of
themselves and all others similarly situated.
Defendant:
ENCANA OIL & GAS (USA) INC.
COURT USE ONLY
Charles Carpenter,#12197 Case Number: 05 CV 2753
1775 Sherman Street, Suite 2550
Denver, CO 80203 Courtroom: 19
(303) 831-1745
Fax: (303) 839-9318
George A. Barton Mo. Bar No. 26249
Law Offices of George A. Barton, P.C.
800 West 47th Street, Suite 700
Kansas City, MO 64112
(816) 300-6250
Fax: (816) 300-6259
ATTORNEYS FOR PLAINTIFFS
NOTICE OF CERTIFICATION OF CLASS ACTION AGAINST DEFENDANT
ENCANA OIL & GAS (USA) INC.
TO: THE POTENTIAL MEMBERS OF THE ENCANA CLASS
IMPORTANT NOTICE: YOUR LEGAL RIGHTS MAY BE AFFECTED
THIS IS AN OFFICIAL NOTICE OF A CLASS ACTION THAT HAS BEEN
CERTIFIED AGAINST ENCANA OIL & GAS (USA) INC. THAT IS BEING SENT TO
YOU PURSUANT TO A COURT ORDER. PLEASE READ THIS NOTICE
CAREFULLY.
THIS IS NOT A LAWSUIT BY THE DEFENDANT AGAINST YOU OR A
SOLICITATION BY A LAWYER. THE COURT HAS NOT RULED ON THE MERITS
OF THE PLAINTIFFS' CLAIMS OR THE DENIALS OF THOSE CLAIMS AND
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CO 2008.0048
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OTHER DEFENSES OF THE DEFENDANT.
THIS NOTICE OF THE CERTIFICATION OF THE ENCANA CLASS DOES NOT
REQUIRE YOU TO DO ANYTHING TO REMAIN A MEMBER OF THE CERTIFIED
CLASS OF ENCANA ROYALTY OWNERS. PLEASE FEEL FREE TO TALK TO
YOUR OWN ATTORNEYS AND ADVISORS CONCERNING THIS NOTICE.
1. WHY IS THIS NOTICE BEING SENT TO YOU?
The class of EnCana royalty owners certified pursuant to C.R.C.P. 23(b)(3) ("EnCana
Class") is defined as follows:
All persons and entities to whom EnCana and its predecessors by merger have paid
royalties or overriding royalties (collectively, "Royalties") on natural gas produced from
wells located in Colorado ("EnCana Wells"), according to the business records
maintained by EnCana, pursuant to leases or overriding royalty agreements that do not
expressly authorize the deduction of costs incurred to market such gas after it is severed
from the wellhead (collectively, "Royalty Agreements"). The defined EnCana Class
excludes: (I) persons and entities who have reached settlement agreements with EnCana
relating to Colorado natural gas royalty underpayment claims with respect to the
production affected by such settlements; (2) persons and entities who are working interest
owners in an EnCana Well on whose behalf EnCana has paid royalties for gas
production; (3) Indian tribes; (4) the United States of America; (5) the State of Colorado;
(6) US Ag Bank, FCB, f/k/a Farm Credit Bank of Wichita; (7) Anadarko Petroleum
Corporation, as successor-in-interest to Union Pacific Resources Company; and (8)
EnCana, EnCana's affiliates, EnCana's predecessors-in-interest, and their respective
employees, officers and directors.
You are being sent this notice because you appear to be a royalty or overriding royalty
owner who would be a member of the EnCana Class. This notice explains the general basis of
the lawsuit, some background and finally provides you with information regarding your right to
Opt Out (as defined below in Section 6) of this lawsuit. This notice provides you with
information necessary for you to make an informed decision as to whether to remain a member
of the EnCana Class or to opt out.
2. Why You Should Read This Notice?
EnCana's records indicate that you have been paid oil and gas royalties for Colorado
production by EnCana, or its predecessors by merger. This notice is sent to you to inform you
that the Court in the captioned matter ("EnCana Lawsuit") has certified the EnCana Class to
allege claims that EnCana underpaid those royalties. The Court has appointed the Plaintiffs as
Class representatives for the EnCana Class and Plaintiffs' attorneys as counsel for the EnCana
Class ("Class Counsel").
This Notice describes the nature of the EnCana Lawsuit, your rights to Opt-Out of the
EnCana Class and some factors to consider in making your decision concerning whether to
remain in or Opt-Out of the EnCana Class. If you are a member of the EnCana Class, you may:
(1) Remain in the EnCana Class (See Section 5 of this Notice); or
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(2) Exclude yourself from the EnCana Class (See Section 6 of this Notice).
3. What is a Class Action?
A class action is a type of lawsuit in which a named Plaintiff brings a suit on
behalf of all of the members of a similarly situated group to recover damages and other relief for
the entire group, without the necessity of each member filing an individual lawsuit, incurring
expenses or appearing as an individua_ plaintiff. Class actions are used by the courts when the
claims raise issues of law or fact that are common, making it fair to bind all class members to the
orders and judgments in the case, without the necessity of multiple lawsuits involving hearing
the same claims over and over.
4. What is The EnCana Lawsuit About?
Plaintiffs, on behalf of themselves and all other similarly situated royalty payees, filed the
EnCana Lawsuit against EnCana on April 13, 2005 in the District Court for the City and County
of Denver, Colorado. The EnCana Lawsuit seeks monetary and declaratory relief against
EnCana for a class of oil and gas royalty payees whose leases, overriding royalty agreements and
other Royalty Agreements do not expressly authorize the deduction of costs incurred by EnCana
to make the natural gas that is produced from the EnCana Wells marketable. This Lawsuit is
currently pending in Courtroom 19 of the District Court for the City and County of Denver, State
of Colorado.
The Plaintiffs have alleged EnCana, in its calculation of royalties, deducted certain
charges for costs it should not have deducted including: (1) fees for gathering natural gas and
delivering it to a commercial market; (2) fuel charges paid by delivering a portion of the natural
gas to the owner of a pipeline or other facilities for use as fuel; (3) selling natural gas before it is
made marketable for reduced prices; and/or(4) retention of a percentage of the proceeds received
for sales of natural gas and natural gas liquids produced from the EnCana Wells. Specifically,
the Plaintiffs assert that EnCana should not have deducted any costs incurred between the
wellhead and the tailgate of a processing plant to make the gas marketable.
EnCana denies all of Plaintiffs' Claims and any wrongdoing or liability to Plaintiffs or
any member of the EnCana Class, in any amount, in connection with the Claims asserted in the
Complaint. EnCana contends that the gas was and is marketable at the wellhead or at other
points prior to the tailgate of a processing plant, and that the costs deducted in calculating royalty
were proper. EnCana further contends that it marketed the gas at points away from the wells to
obtain a better price for itself and its royalty owners and to enhance the value of the gas.
A more complete description of the EnCana Lawsuit, its status and rulings made in the
case are available in the file kept by the Court. Alternatively, should you have questions
regarding the status, rulings or issues in this lawsuit, such questions can be asked in writing to
Class Counsel at the addresses provided in paragraph 7 below.
5. Remaining A Member of the EnCana Class
If you choose to remain a EnCana Class member, you do not need to take any action
whatsoever. The Class representatives and Class Counsel will represent your interest as a
member of the EnCana Class. You will not be charged for their services or costs, other than as
may be deducted from any award, as approved by the Court. However, you will be bound by the
judgment and final disposition of the EnCana Lawsuit, regardless of whether the outcome is
favorable to you. If no recovery is obtained for the EnCana Class, you will be bound by that
result. Also, EnCana Class members may be barred from bringing any separate legal action
against EnCana for the Claims described in this Notice. Any Class member who does not
request exclusion may, however, enter an appearance herein through their own separate counsel.
If you remain a member of the EnCana Class, you will be entitled to notice of, and may
participate in, any monetary damages or other relief obtained on behalf of the EnCana Class. For
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this reason, you should notify Class Counsel in writing at the addresses set forth in Section 7 of
this notice of any corrections or changes of your name or address.
6. Requesting to Be Excluded From the EnCana Class
You may elect to be excluded from the EnCana Class ("Opt-Out"). If you elect to be
excluded from the EnCana Class, you will not be bound by the judgment and final disposition of
the EnCana Lawsuit. You will retain, and will be free to pursue, any claims you may have on
your own behalf against EnCana. EnCana will be free to assert any defenses or counterclaims it
may have against you. You should consult with your own attorney, at your sole cost, regarding
your rights as well as any defenses and counterclaims available to EnCana as to your claims. To
be excluded from the EnCana Class, you must provide a written election to be excluded from the
EnCana Class to Charles Carpenter, one of Class Counsel, at the address set forth in Section
7 of this notice. The election must contain the full name, EnCana owner number(s) (if known),
current address, telephone number and signature of a person authorized to request exclusion from
the EnCana Class or the signature of such person's counsel. The written election must be
received by Class Counsel on or before January 30, 2008. A copy of an exclusion notice is
attached hereto.
7. Class Counsel
George A. Barton Charles Carpenter
Law Offices of George A. Barton, P.C. 1775 Sherman Street, Suite 2550
800 West 47th Street, Suite 700 Denver, Colorado 80203
Kansas City, MO 64112 (303) 831-1745
(816) 300-6250 (303) 839-9318 (fax)
Fax: (816) 300-6259
In any written correspondence with the attorneys, it is important that the envelope and
any documents inside contain the following case name and identifying numbers:
Miller, et. al, v. EnCana Oil & Gas (USA)Inc.
Case No. 05 CV 2753
In addition, you should include your full name, EnCana owner number(s) (if known), address
and telephone number.
8. If You Want to Inspect the Court File
The complaints, answers, pleadings, court orders and other documents are in the court file for
this case, and may be inspected and copied at the following address:
District Court
City and County of Denver
1437 Bannock Street, Room 38
Denver, CO 80202
DO NOT WRITE OR TELEPHONE THE CLERK'S OFFICE if you have any
questions about this notice. Please address any questions regarding the notice or the case in
writing to Class Counsel. ANY QUESTIONS CONCERNING THIS NOTICE OR THE
ENCANA LITIGATION SHOULD BE DIRECTED TO CLASS COUNSEL.
PLEASE DO NOT CALL ENCANA, THE COURT OR THE COURT CLERK
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REQUEST FOR EXCLUSION FROM ENCANA CLASS
READ CLASS NOTICE CAREFULLY BEFORE FILLING OUT THIS FORM.
DO NOT FILL OUT THIS FORM IF YOU WANT TO REMAIN A MEMBER OF THE
ENCANA CLASS.
The undersigned has read the Class notice issued in the EnCana Litigation, does NOT
wish to be a member of the EnCana Class certified in the case of Miller, et al. v. EnCana
Oil & Gas (USA) Inc., Case No. 05 CV 2753, District Court, City and County of Denver,
State of Colorado and understands that by executing this exclusion form that:
(1) The undersigned is a Class Member in the EnCana Litigation and, as such, has the
possibility of getting money or other benefits that may come from a trial or
settlement;
(2) The undersigned wishes to be excluded from ("opt-out" of) this class action, and
by doing so, will not participate in any monetary recovery for the class and will
not be bound by any Court orders or judgments.
Dated:
Name:
EnCana Owner No.:
Address:
Telephone:
By:
Signature (title, if applicable)
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