HomeMy WebLinkAbout20083287.tiff IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Case No. 07-cv-00916-LTB-BNB
(Consolidated w/07-cv-01025-REB-MJW)
BENARD HAROLD ANDERSON, et al., individually and on behalf of all others similarly situated,
Plaintiffs,
v.
MERIT ENERGY COMPANY,
Defendant.
Civil Case No. 07-cv-01025-REB-MJW
NILES MILLER, et al., individually and on behalf of others similarly situated,
Plaintiffs,
v.
MERIT ENERGY COMPANY,
Defendant.
NOTICE OF CERTIFICATION OF CLASS ACTION
AGAINST DEFENDANT MERIT ENERGY COMPANY
TO: THE POTENTIAL MEMBERS OF THE CERTIFIED CLASS
IF YOU HAVE RECEIVED NATURAL GAS ROYALTY PAYMENTS FROM MERIT
ENERGY COMPANY ("MERIT") ON NATURAL GAS PRODUCTION IN THE STATE
OF COLORADO, THIS NOTICE MAY AFFECT YOUR RIGHTS.
A CLASS ACTION HAS BEEN CERTIFIED IN A PENDING CLASS ACTION
LAWSUIT AGAINST DEFENDANT MERIT. THE CLASS ACTION LAWSUIT ("THE
LAWSUIT") CONCERNS THE ALLEGED UNDERPAYMENT OF ROYALTY
PAYMENTS MADE BY MERIT. THE LAWSUIT IS CURRENTLY PENDING IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO, IN
DENVER, COLORADO. THE LAWSUIT HAS BEEN BROUGHT AGAINST MERIT
BY VARIOUS ROYALTY OWNERS ACTING ON BEHALF OF THEMSELVES AND
OTIIER SIMILARLY SITUATED ROYALTY OWNERS.
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THIS IS NOT A LAWSUIT BY THE DEFENDANT MERIT AGAINST YOU OR A
SOLICITATION BY A LAWYER. THE COURT HAS NOT RULED ON THE MERITS
OF THE CLAIMS ASSERTED BY THE PLAINTIFFS, OR THE AFFIRMATIVE
DEFENSES ASSERTED BY DEFENDANT MERIT.
1. Why is This Notice Being Sent to You?
You are being sent this Notice because you may be a member of the Class in the Lawsuit
(as described below). Merit's records reflect that you have been paid natural gas royalties on
natural gas produced by Merit in the state of Colorado. This Notice explains the claims being
asserted in the Lawsuit, and also explains your right to remain a member of the Class (as
explained in Section 4 of this Notice), and your right to opt out of the certified Class (as
explained in Section 5 of this Notice).
The Lawsuit consists of two similar lawsuits which have been consolidated in the United
States District Court for the District of Colorado, which are captioned as Anderson, et al. v. Merit
Energy Company and Miller, et al. v. Merit Energy Company, consolidated action number 07-cv-
00916-LTB-BNB. Judge Lewis T. Babcock is overseeing the Lawsuit. On June 19, 2008, Judge
Babcock entered an Order certifying the Lawsuit as a class action.
In Judge Babcock's Order certifying the Lawsuit as a class action, the Class of persons
whose claims have been certified is defined as follows:
All persons and entities to whom Merit has paid royalties or overriding royalties
on natural gas produced from wells located in Colorado, pursuant to leases or
overriding royalty agreements that do not expressly authorize the deduction of the
costs incurred to market such natural gas after it is severed from the wellhead
(collectively, "Royalty Agreements"). The defined Class excludes: (1) any person
or entity who is a working interest owner in a Merit well on whose behalf Merit
has paid royalties for natural gas production; (2) Indian tribes; (3) the United
States of America; and (4) Merit, its affiliates, its predecessors-in-interest, and
their respective employees, officers and directors.
Judge Babcock has appointed the attorneys for the Anderson and Miller Plaintiffs to act
as the attorneys for the Class ("Class Counsel"). The names and addresses of the Class Counsel
are listed in Section 6 of this Notice.
2. What is a Class Action?
A class action is a type of lawsuit in which the named plaintiffs bring a suit on behalf of
other similarly situated persons, to recover damages and other relief on behalf of other persons
they represent, without the necessity of each person incurring the expense of filing a separate
lawsuit, or joining in the lawsuit. Class actions are frequently brought when issues of fact or law
are common, making it fair to bind all Class members to the orders and judgments in the case,
without the necessity of litigating multiple lawsuits involving similar claims.
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3. What is the Lawsuit Against Merit About?
The Lawsuit against Merit seeks monetary and declaratory relief on behalf of the Class,
based on Plaintiffs' claims that Merit has underpaid royalties due and owing to the Class on
Merit's natural gas production in the state of Colorado.
The Plaintiffs claim that Merit has underpaid royalties relating to natural gas produced
from Merit wells in Colorado, by improperly deducting from those royalties certain costs
incurred to place the gas in a marketable condition, and to deliver the gas to the location of the
commercial marketplace.
Merit denies Plaintiffs' claims, and denies any liability to Plaintiffs or to any members of
the Class. Merit contends that it calculated and paid royalties in conformance with the terms of
its leases and all instruments creating overriding royalty interests, that the natural gas was and is
marketable at the wellhead, and that it calculated and paid royalties based upon all proceeds
received by Merit from the sale of gas, without taking any deductions.
A more complete description of the Lawsuit, its status, and the rulings made in the
Lawsuit are available in the file for the Lawsuit maintained by the United States District Court
for the District of Colorado. Alternatively, should you have questions regarding the status,
rulings or issues in the Lawsuit, such questions can be submitted in writing to Class Counsel at
the addresses provided in Section 6 of this Notice.
4. Remaining a Member of the Class
If you choose to remain a Class member, YOU DO NOT NEED TO TAKE ANY
ACTION WHATSOEVER. Class Counsel will represent your interests as a member of the
Class. You will not be charged for their services or costs, other than as may be deducted from
any settlement amount or judgment, as approved by the Court. You also have the option of
entering your appearance in the Lawsuit through your own counsel, at your sole cost, if you so
desire. However, you will be bound by the result of the Lawsuit, regardless of the outcome, even
if no recovery is had. Class members will be barred from bringing any separate legal action
against Merit for the claims described in this Notice. If you remain a member of the Class, you
will receive notices of, and may participate in, any monetary damages or other relief obtained on
behalf of the Class. For this reason, you should notify Class Counsel (in writing at the addresses
provided in Section 6 of this Notice) of any corrections to, or changes in, your name or address.
5. Requesting to be Excluded From the Class
You may elect to be excluded from the Class ("Opt Out"). If you elect to be excluded
from the Class, you will not be bound by the judgment and final disposition of the Lawsuit. You
will retain, and will be free to pursue, any claims you may have on your own behalf against
Merit. Merit may 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
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and counterclaims available to Merit as to your claims. To be excluded from the Class, you must
provide a written election to be excluded from the Class to George Barton, 800 West 47th, Suite
700, Kansas City, MO 64112 and Larry Moffett, P.O. Box 1396, Oxford, MS 38655, two of the
appointed Class Counsel. The Opt Out election must contain your full name, Merit owner
number(s) (if known), current address, telephone number and either your signature or the
signature of a person authorized to request exclusion from the Class on your behalf. The written
Opt Out election must be received by Class Counsel on or before January 30, 2009.
6. Class Counsel
The following attorneys have been appointed as Class Counsel:
George Barton Larry Moffett
Law Offices of George A. Barton, P.C. Daniel, Coker, Horton & Bell, P.A.
800 West 47th Street, Suite 700 265 North Lamar Blvd., Suite R
Kansas City, MO 64112 P.O. Box 1396
(816) 300-6250 Oxford, MS 38655
Fax: (816) 300-6259 (662) 236-8787
Fax: (662) 232-8940
Don Barrett David Stellings
Barrett Law Office, P.A. Lieff, Cabraser, Heimann & Bernstein, LLP
P.O. Drawer 987 780 Third Ave., 48th Floor
Lexington, MS 39095 New York, NY 10017
(662) 834-2376 (212) 355-9500
Fax: (662) 834-2628 Fax: (212) 355-9592
Alfred Davidson Stephen Dampier
Barrett Law Office, PA Nashville Law Offices of M. Stephen Dampier, P.C.
One Burton Hills Blvd. #380 P.O. Box 161
Nashville, TN 37215 14 South Section Street
(615) 665-9990 Fairhope, AL 36533
Fax: (615) 665-9998 (251) 928-9160
Fax: (251)928-2834
Melvin Dinner Stow Witwer
Melvin Dinner, P.C. Patrick Groom
822 7th Street, Suite 540 Witwer, Oldenberg, Barry & Johnson, LLP
Greeley, CO 80631 822 7`h Street, Suite 760
(970) 352-2081 Greeley, CO 80631
Fax: (970) 352-9172 (970) 352-3161
Fax: (970) 352-3165
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In any written correspondence with the Class Counsel, it is important that the envelope
and any documents inside contain the following case name and identifying numbers for the
Lawsuit:
Anderson, et al. v. Merit Energy Company and Miller, et al. v. Merit Energy Company,
Consolidated Case No. 07-cv-00916-LTB-BNB
In addition, you should include your full name, Merit owner number(s) (if known), address and
telephone number.
7. If You Want to Inspect the Court File
The complaints, answers, pleadings, court orders and other documents are in the court file
for the Lawsuit, and may be inspected and copied at the following address:
Clerk's Office
Alfred A. Arraj United States Courthouse
901 19th Street
Room A105
Denver, Colorado 80294
DO NOT WRITE OR TELEPHONE THE CLERK'S OFFICE if you have any
questions about this Notice. ANY QUESTIONS CONCERNING THIS NOTICE OR THE
LAWSUIT SHOULD BE DIRECTED TO CLASS COUNSEL.
PLEASE DO NOT CALL MERIT, THE COURT OR THE COURT CLERK
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