Oral Argument Legal Case Summary

Oral Audio Transcript(Beta version)

. That's correct, Your Honour. There's no uniform declaration that can advance this litigation because of the Virginia gas attack, because the requisite commonality doesn't exist. Class, you say you can't at least on this record, but would it be appropriate if we agree with you and send it back if you see if whether or not there could be subclasses created that would divide these into manageable subissues? I don't think so, Your Honour. The reason why it's twofold. One is you don't have all the claimants in the case and that's why you can't drive toward subclasses because the cold claimants aren't in this case. Well, Buckhorn intervening, what, in the Addison cases, is that correct? Buckhorn in Addison, torch in the Hale case, but those are only part of hundreds of coloners that are conflicting with the gas estates. Do we have any idea on this record? How many coloners there are at issue here? We don't. We don't know how many of the best guess is that there's hundreds if not thousands that are coal identified. One of the things that concerns me is you've got a lot of property owners here and the production companies and coal companies have been taking gas from their properties for good many years, but that case. And nobody is, as I can see, has ever recovered so much as a scent. None of the property owners have recovered so much as a scent in terms of royalties. And, you know, it seems to me, you might be content just to let this escrow system go on indefinitely, but how, how, how these many property owners who are owners of the gas estates in this land? How are they going to ever get the royalties that presumably are due? You're on it with all due respect. That statement isn't true. Millions of dollars have come out of this of the escrow account. Have they been paid? They have been paid. The appendix 4455, you can see where Senator Puckett went to the board and actually plotted the board for the effort to the operators and the royalty interest that have been paid millions of dollars have come out of this account of conflicting claimants. I'm not talking about non-conflicting claimants. I'm talking about conflicting claimants in this case because there's three available options to get this money out. You can do it by agreement, which it's done. You can do it by adjudication, which it's done, and you can do it by a voluntary arbitration. And that's the crux here. They have a method to do so. And the populist... Is a class action a superior method? It's not a superior. The reason that it's not a superior method is because you don't have the coal claimants in to find them. It can't possibly be a superior method when the act requires an adjudication between the conflicting claimants. That's the key crux here. You don't have the conflicting claimants here in this case. The plaintiffs, in this case, understood that. When they brought this case, the first complaint had the gaseous dates as the class versus the John Doe unknown coal claimants. But they realized when they got into it, the commonalities destroyed the severance deeds that Justin Skenin brought up. And so what did they do? They asked to amend the complaint to create this concept called an illusory conflict. There's no such thing as an illusory conflict

. Not in this case. The conflict is real. And how do we know that? In three weeks, Belcher versus Swords Creek, will be decided up the street in the Virginia Supreme Court, dealing with conflicting claimants where the coalist state has sued the gaseous state. Okay. And the rip was granted as to language of deed talking about coal and other things. And I assume you've been following the briefing in that case. It has the argument expanded beyond the words coal and other things. It has. The arguments do so little bit on that. Yes, your honor. The argument consists of the coal state claimants have made is not only is it the coal and other things, but the issue back to Harrison why it did it deal with the frat gas versus the gau gas. As you know, because you were at Harrison why it was a gau gas case. It didn't deal with the frat gas and there are other issues that the coal claimants want to make, which says in addition to analyzing these severance deeds, they also have an issue with the gau gas versus the frat gas. And the frat gas wasn't decided in Harrison why it's so they've also briefed that issue as well can invade the coal seam according to the coal claimants without their permission. And that's an issue and it can't be decided on a class basis. It has to be decided on a deed by deed least by. Are there common questions here? The class action is regionally based in the southwest part of Virginia to govern by Virginia law. I assume we still do all of them deal with the escrow concept of them deal with yes or stays. I assume that the royalty. The royalty accounting methods that EQT uses uniform throughout the escrow accounts. I mean there are common aspects to this. It's not a nationwide class action. It's not governed by a variety of different laws. I suspect that there are common questions in terms of the way the escrow accounts are handled both in terms of royalty accounting and also in terms of the deductions that you're making in terms of whether you're taking severance deductions also in terms of whether you're paying a sufficient amount. Now, into the escrow accounts that there may be some standardized mechanism by which you are deciding how much you're going to put into the escrow accounts, what you're going to deduct and what the formula is that you're using to determine how much you're going contribute to those accounts. Now why are those con elements here? The answer goes back to Walmart versus Duke. You can come up with those common questions but you don't have common answers that drive this litigation specific to what you said that you're on. The variables when you get underneath the rigorous analysis wasn't done but when you get underneath the variables, they're changed over the course of all these thousands of claimants. They changed over time. Someone that was pooled and produced in 1998 may have a different component than someone that was pooled in 2010 within a specific unit itself. But if you have a common method of determining royalty and you have a common accounting method and you have a common contribution method into the escrow account, can't the individual differences in how many royalties are due one person or another? Isn't our class actions routinely decide that? You're on with all due respect not since Walmart versus Duke. Since Walmart versus Duke, every class action case has come down. Cheap versus exeo in the tenth circuit, boss versus Apache in the West from District of Oklahoma, boss versus Merit, Morrison versus Anodarko, talk versus BP, they've all looked at that issue and they said first you got to look at the leases. If the leases have different language then all the accounting are different. You can't get there

. And in a deemed leased situation, the variables drive it. The plaintiffs didn't put on one shred of it. And one of the material variances in the leases that you think are important. The Mr. Smith will talk about it, but the language itself and the leases can vary from at the well-head language versus post-production deductions that are specific, including but not limited to gathering, compression, transportation, you have to look at them on an individualized basis. What are these alternative means of resolving disputes in your view? Why are they likely to be effective so that the property orders and landowners can actually get what's coming through them where gas has been removed from their land? You talked about adjudication being one of those. But tell me about these alternative methods and tell me why you think there's superior to a class action in terms of resolving this. There's superior because property rights can't be decided without all the parties that issue. You cannot have a property rights that is on ownership. And then the royalty, unless you have the first underlying fundamental premise, which is you have a different claimants looking for the same money. And if you don't have them in the same courtroom, you're not adjudicating the ownership. You're not following this. And how the property owners are supposed to proceed? They file a suit and stay court anywhere in the Commonwealth. As they've done, there's a master scheduling order that we talk about in the appendix. There's 20 to 30 of these cases sitting out there in Buchanan. How many of them? I think there's 20 to 30 of them that have been sitting out there, but there have been some that have already been adjudicated. In this very courtroom that this case comes from, the Western District, the heirs of Deskins case. That's how that case gets settled. Mr. Blank, though, it sounds to me really like your argument is suffering from one defect. And that is you're asking us to conclude that all of these problems are fatal. I mean, I agree with you. They're massive problems connected with this class action. But don't we have an even larger umbrella problem in that the district court didn't address them? They did. They didn't. You're correct. I mean, you know, the district court didn't talk about the breach of contract claims. It didn't talk about all these ownership problems. It didn't talk about common answers in Walmart. Why isn't it appropriate to remand to the district court with swordspric pending and with all of those issues that the district court didn't address before simply concluding this is impossible? I've thought about that long, and it may help the court, but this court and the district court to hear what the Supreme Court says in swordscreen. But the fundamental problem that the court can't get over is the Virginia gas oil act saying that it has to be as between conflicting claimants. It doesn't really matter what happens in terms of the decision. It does the litigants in swordscreen between the coal estate and the gas estate. It confirms that there still is conflicts and you can't do it in the abstract. You have to have these parties in the courtroom

. And the plaintiffs knew that. The court knew that. Throughout the entire record, what you have is we can't make an all-encompassing decision without the proper parties before the court. Another than adjudication, how does the individual property on a coal-about recovery royalties? They can do it by split agreements under the statute, which is the coal estate and the gas estate come together, make an agreement and decide to split it in a certain way, and the winds of time have changed what that split is, whether it's 50, 50, 90, 10, 60, 40. The General Assembly acknowledged that and believed that. They can come with a voluntary arbitration or the General Assembly, who were in the shadows of, they can change the statute and determine that there's a different way. But it can't be done under the rule 23 context. It just simply is not a contract set up for this issue. And with all due respect, the federal court system shouldn't try to change what the statute set up through the rule 23 contract, especially complete with a record that we have where the analysis wasn't done, count by count. Now, Chief D'Universal Exeo again gives instruction that you have to look at each one of these causes of action, determine the elements. You will not find those elements throughout the record that's before us. I'll you look forward to Mr. Smith, you back. Thank you. Mr. Smith? Thank you. Thank you. Thank you. My name is Mike Smith. I'm with the Christian Barton Law Farm in Richmond. And I'm here today on behalf of VQT. And in the small amount of time remaining, the court will permit me, I would like to talk about the contract cases in the Edgames and the Casas cases. I got a couple points I want to make the time for me. One variation in language. There are very similar problems between the contract cases. And the deed cases, the difference is one difference is the contracts are leases in this case. There are thousands of them. Most were individually negotiated and individually in an interview. Some more than 50 years old, many have been amended, sometimes in hand right. Each lease has its own royalty payment language. There aren't foreign leases used. They're interesting, man, enough in this case. Early on, the plaintiffs asked for copies of all the leases and they were provided. So far as I know, there's been no effort to categorize them, analyze them by either the plaintiffs and the court. And of course, the court hadn't been able to do it

. It doesn't have to stand to it. Well, that's a just that it ought to go back for that purpose. You can see that point that it ought to go back to do just that to categorize these leases. I will concede that sending this case back referring to that is certainly a realistic possibility, is certainly a realistic possibility. Remanding this case. But on this record, there has been no rigorous analysis of anything. What happened in Kaiser and Atkins with regard to the magistrates' recommendation being turned around by the district court? If you, if you all please, the district judge reversed it. And that's why I said quietly. We have nothing from Judge Jones on that. We have nothing. Any analysis that was done was done by the magistrate. But the point in fact is even the magistrate didn't have roughly 20 leases at the time in the record and 12 of those leases were put in by EQT. It's not EQT's burden at that point in time to put the leases in and make the point on class certification. But it brought the leases that the only leases that the plaintiffs have brought in are the leases that were attached to the plea. The reparatives of the class. There just has been nothing in this case that looks anything like rigorous analysis. Judge D. Edg, you asked the question about sending it back. Of course it can be sent back. And of course a rigorous analysis can be done. And of course issues of subclass and all can be decided. On these leases however, there is one issue that militates against that. And that's the spectacle of limitations. The trilogy of cases in this court starting with Bruce Arden and Thorne and Graham or Graham L. Those cases stand for the proposition that when plaintiffs allege fraudulent concealment as a ground to equitably stop defendant from pleading the statute of limitations. That's not suitable for class treatment. Those three cases say it. I think it's Grinnell that says we don't care what other courts may say about this. It is clear in the forester that questions of fraud, questions of reasonable reliance. Those questions are not certified. That is one difference, Judge D. Edg, in sending it back for class treatment. I don't believe. And I think Judge Wilkinson was fairly clear on this in Bersard. That would be very difficult to create any kind of class where that statute of limitations case sitting back

. And by the way, in the Actions case for instance, Judge D. Edg. That's been paying out. Those royalties have been paid out. And some of the people who have taken the royalties have been taken them for 25 years. I would direct your attention to the appendix of page 3895. You will find a letter there that has everything in the world to do with these cases on these leases. One of the points is made in your reply brief that the money in escrow cannot be released without some judicial determination of the ownership of the CBM between conflicting claim. Is that true in every one of these cases or what kind of first of all what kind of conflict that you're talking about and second of all what kind of judicial determination are you talking about as a precondition to releasing the releasing royalties? Well, on the royalty issue and the release of the royalties. Mr. Blank is better equipped to deal with that issue than I am. But let me describe the fields as I understand them to you and this may get to your question. I hope that it does. In one field adkins royalties have been paid over years. They've been paid like clockwork. In fact, in fact, the less always have accepted the money. Over time, that has interesting. Satchel limitations. Matter of fact, and it also has interesting what did the parties intend when they signed the contract going forward as it relates to. With holding the deductions and charging them against the royal another field of the dean leases. Mr. Blank was talking to you about that's whether all in gas board has come in and issued an order which becomes all intention purposes in its convoluted and complicated. All intention purposes, the lease, it puts the lease in the dean lease cases. Then there are the cases where there is ownership disputes where money is escrowed. Then there's adkins where there are voluntary leases and the money flows like water. That's not a problem. So the leases don't have the same nature problem that the ownership cases have if that helps at all judge Wilkinson. Now, one thing interesting about this appendix document that I referred you to, it's brought into statute of limitations. This is a less or who writes EQT in 1991 and says, I see that you've been charged against my royalty. The Duchess for post production deductions. EQT writes back says yes we have and this is the reason why. In the first lot of that was a thinly veiled threat to bring a suit against EQT. Let me ask you a sort of a global question. Yes sir. And that is, are you telling us today that the better way to resolve these cases is through individual suits in state courts

. The cases are governed largely by state law. The state courts already have a number of these cases which have been brought by individual less or is in landowners before them. The relevant decisional law and the relevant statute are all Virginia statutes. And so as I pick up what you are saying and what Mr. Blank is saying is that this really is more of a state matter to be handled under the requisite Virginia statutes and to be handled under the Virginia decisions, Harrison and the life which is state courts are from me. And they are already dealing with a lot of these cases on an individual basis. And that that is simply when we get the what is the superior mechanism here. Having these suits go forward in state courts and continuing that process is preferable to a massive unwieldy class action. Is that the overall point you are making for my game? It is an overall point and may I add to it a little bit. This way the problem with the class action is you are going to have individual cases anyhow. The leases are going to have to be tried. Somebody sometimes is going to have to look at those leases. So if you have a class action you had to move the ball. You have kicked the can down the road. You are going to have all of those issues of being tried. The leased language has got to be considered at some point in time. I will say this to you on your point. I want you to wrap it up quickly. I will wrap it up very quickly. We have more circuit court judges than we have federal district judges in southwest Virginia. And they are questions of Virginia law and it should be decided at that point. Thank you sir. We will be here for you. Thank you, Your Honor. Good morning and may it please the court Elizabeth Cabrazer for the Appalienate of Classes. I think the questions that Your Honors have asked this morning really do frame the question here. The overall question this is in terms of a fact pattern, the antithesis of the Walmart case. Class actions have become exciting in the past few years. Supreme Court has given us new guidance. Could you move that microphone down a little bit? Yes, Your Honor. Thank you. Thank you, Mike Hill. That's great. It has given us new guidance in Walmart and in MGM. But this case, these cases, these five cases are classic class actions

. They are local, they are regional, the predominant questions turn on a single decision from the Supreme Court of Virginia and one sentence. Which decision? That would be the Harrison White. In that case, the Colbyn, the CBM gas had migrated. We don't know what the situation is with the Colbyn's here and where the gas is. The court wasn't saying in any case irrespective. Now the Virginia statute has taken care of certainly part of that. But how do you, you don't have a clear answer. I mean, isn't that why swords Creek is addressing and acknowledging the fact that all of these leases, these deeds say different things. And you've got coal and other things. You have potentially thousands of different leases, different terms in the severance states. It's not a clear answer from Harrison Wyatt. It seems to me you're oversimplifying it and perhaps doing it to service to your cause because I do understand the fact that there are many small property owners, surface rights, gas state owners who may not have it be economical to their advantage to have to litigate these cases individually. But it doesn't serve their interest just to say Harrison Wyatt case closed because it doesn't close the case by any matter of need. Your Honor and I did not mean to imply that it did and far be it for me to try to tell you what the meaning of that case is. The point that I was making is that unlike the more sprawling class actions, the ones that have come under criticism, this is a classic class case because whatever the ultimate meaning of the rat with decision and its progeny. Including swords Creek and the one sentence codification of the Colbert methane gas ownership issue in the Virginia statute. There are a limited number of patterns to these leases. The deemed leases are uniform categorically because they're not negotiated with the owners. When you start with the ownership issue because isn't that the threshold that even gets this thing going? Yes, Your Honor. And what sets up this litigation as a quintessential case for class action adjudication, including through appropriate subclasses and through the designation of court. The common questions is that in response to the Supreme Court decision and in response to the more precise language of the statute, each of the defendants has systematically searched title divided up colon gas interests, made submissions under penalty of perjury under oath pursuant to title searches. Go on before the Virginia board, gotten the orders and then proceeded to extract the methane and put the payments, the royalty payments in suspense. Do you know how many severance deeds are at this issue in this case? There would be thousands of severance deeds, Your Honor. Do we do know how many different forms of grants and grant language? Is there any way of knowing that going into this case? There is a way of knowing that specifically by examining those leases and it is something that can be done. We would argue that if this court believes it should be done on an ongoing basis in connection with class certification. Then these cases as the defendant's agree should be remanded to do just that. However, in terms of the certification by the district court, we also argue that that was not an abuse of discretion because based on the least language that was submitted by both sides to the court, a court was able to ascertain that with respect to the issues in this case, not a deed language in Tocho, but with respect to the issues that matter in this case. For example, the issue of who owns the methane gas, the gas owner or the coal owner, with respect to the breach of contract cases, that class definition is restricted to leases that are silent as to the deductions. So while there might be many variations in non-material language of those deeds, the material provisions of those deeds for purposes of making the determinations of the basic issues in this case, the predominant common issues in this case. What about the absence of the coal owners? Your Honor, the district court has addressed the absence of the coal owners in two ways. First, as you heard, the major coal owners, the four major coal owners, which collectively have consolidated over half of the coal interests, are named parties in the suit. They participate in the briefing. They're interveners. So the court there has used the intervention rule to deal with that. Now, you might ask what about the remaining coal owners? Those coal owners are being notified by the court

. They are being sent direct mail notice, pursuant to a notice program that the court is currently considering. And that notice tells the coal owners about the litigation that there are summary judgment motions pending and explains to them how to get more information about the suit and how to come into the suit. So any coal owner who truly wants to participate in this dispute will be able to do so before there is a final adjudication. So the due process requirements articulated by the Supreme Court in Taylor versus Sturgeon are fully satisfied, notice and an opportunity to be heard. Why can't this poll matter be better resolved in state court? There doesn't seem to be any federal question really here. The state law is peculiarly suited to adjudicating property rights. I mean, property rights is right at the heart of what state law is all about. They're going to be governed by state decision law. The state statutes are salient. There are questions of state law. I mean, they're their cases before the state's circuit judges. And I don't know and they're doesn't seem to me. I don't understand what the federal interest is here just in conducting an interest analysis, which I think is fair to do with rule 23. Why isn't the state's interest paramount here? Why should we be shoe warning this into a federal class class action? Your honor, the answer to that question is bound up in what the Supreme Court has said in Amgen most recently about rule 23 B3 and the purpose of that stat that that federal rule. And this is a multi state state, a multi step procedure. So bear with me for just a moment because I'm going to answer your question. As the Supreme Court said in Amgen, the office of a rule 23 B3 certification ruling is not to adjudicate the case. Rather, it is to select the method best suited to adjudication of the controversy fairly and efficiently. That's Amgen at 133 Supreme Court page 1191. And you might ask what business and you did ask what business does a federal court have applying this rule 23 function in this case. And the answer is this, Congress has declared that reason not in a particular subject matter statute. This is not subject matter jurisdiction. This is diversity jurisdiction, but the diversity jurisdiction comes from the class action fairness act of 2005. And in that act, Congress said, and I quote the purpose. But I'm trying to ask which is the relatively superior method of resolving this. You know, the class action has problems simply because of the variances and the terms of the individual leases because of ownership disputes, because of differences in damages. And the individual claimants here, the members of the class are quite differently situated in some respects, not in other respects. We're always talking about a gas estate. We're talking about that relationship royalties in the escrow. But in many respects, the individual class members are indeed differently situated. And the differences are not insignificant. So why is this a superior vehicle to letting those these cases go forward on a more individualized basis in state court, which where the state courts have a deeper fund of expertise. And they can account an individual actions for differences in individual circumstances. And we have to ask ourselves why the class action is a superior mechanism for attacking this whole issue. And that's what I want you to get at with

. Yes, Your Honor. It is the superior mechanism for attacking this whole issue. It's not only the best mechanism. It's the only mechanism here on the economics tell the tale. Every procedure has a price tag. And when we look at superiority, it's a relativistic analysis. And you have to deal with fairness and you have to deal with efficiency and you have to deal with economy. That's what the Supreme Court tells us. That's one reason why Kaffa enables us to get down to this case. All right, this case, the economics are inexorable, Your Honor. There are approximately 90 accounts here that are being held in these escrow. They total approximately $26 million. In over half of the sub accounts, there are less than $5,000. In one third of the EQT sub accounts, there are less than $1,000. In 127 of the CNX accounts, there are less than $1,000. The filing fee alone to file a declaratory relief action in the Virginia courts now, I believe is $82. Since the Supreme Court and the statute have teed up this issue, there have been between 12 and 15 of these individual actions that have gotten all the way through the court system. The gas owners always win. I would imagine that there are slightly different circumstances among those cases as to what the leases say and what the interests are. You say the gas owners always win. There are 20 or 30 of these cases you are attending. But Your Honor, if you look at the class, the minimum number of class members is 900. We know it's several thousand, but let's say it's 1,000. In 10 years, 15 have gotten through the state court system. 15. We're going to take what, another 700, 800 years to go through these cases. There's a reason that there are so few of these cases. It's not just that the amounts are small. It's that every procedure has a price tag in these cases cost money. There are only one or two attorneys. The same individual class members lack the resources to hire lawyers and prosecute their cases through state court. That is correct. It isn't economically feasible for a number of reasons, Your Honor. The nominal amounts at stake, which are nominal. These are, this money is important to these people, but it's not enough to justify an individual suit. Would it be consumed in attorney's fees? It would be consumed in attorney's fees. In fact, the one or two attorneys currently taking these cases, I know one of them only takes a case that's worth at least $100,000 because under that it's not economically feasible. So that means that the vast majority of the members in these defined classes are basically out of luck and out of court. Were it not for the fact that the Class Action Fairness Act, which was enacted to provide prompt recoveries for class members? The link with the royalties had actually been paid. The landowners said, well, we've been looking for decades and nobody's gotten any money. He said, that's not correct, Your Honor. There have been sizeable royalties paid to the individual landowners. Is that is his representation correct there? There have been some sizeable payments made and those are primarily due to split agreements where the oil and gas owners reach an agreement, which of course is another solution to the problem. But those are the larger interests where it's worth people finding each other having those negotiations, which would normally involve a lawyer as well. What about arbitration under the Virginia oil and gas set? No one has used it, Your Honor. No one has used it. You have any, any, not that we know of. No one is to why? You have to go. Probably for the reasons that tend to beset arbitration, enforceability. It wouldn't be a public, it wouldn't be a public determination. It wouldn't be presidential, at least with the state court proceedings. You have a body of jurisprudence that develops that people can look at and they can say, well, this was what Harrison, what it was about. This is what this other case was about. Now I know where I stand. Arbitration can't do that. Under the statute of all the parties would have to agree to arbitration. And that may be another barrier. So it just hasn't worked. It's an alternative, but it's not an available method in the proof is it hasn't been availed. Let me jump over to another issue. And that is, you really don't think there was a rigorous analysis. Is that required by Walmart in this case? Do you perform by the district report or the magistrate judge? I do think that there was a rigorous factual analysis performed by the magistrate judge. I agree. There are a lot of facts in the case. But in terms of the issues that we have to look at, in terms of commonality, predominance. We don't have it in front of us, do we? Here's what I would say about that, Your Honor. With respect to the deep dive into the factual record and familiar with the fact familiarity with the factual scenario, I do believe that the court did a more than adequate job. I think the problem with the record, which is clearly correctable on remand, if that's what the court wants to do, is with respect to the relative sparsity on breach of control. If you want to attract issue, for example, that your honor raised, there is a oral argument before Judge Jones. There's a transcript with specific oral argument on the leases in the Edkins case, which were the leases, the silent leases, the class definition, the fact that there were primarily common issues involved in the first marketable product rule and how it supplied

. Would it be consumed in attorney's fees? It would be consumed in attorney's fees. In fact, the one or two attorneys currently taking these cases, I know one of them only takes a case that's worth at least $100,000 because under that it's not economically feasible. So that means that the vast majority of the members in these defined classes are basically out of luck and out of court. Were it not for the fact that the Class Action Fairness Act, which was enacted to provide prompt recoveries for class members? The link with the royalties had actually been paid. The landowners said, well, we've been looking for decades and nobody's gotten any money. He said, that's not correct, Your Honor. There have been sizeable royalties paid to the individual landowners. Is that is his representation correct there? There have been some sizeable payments made and those are primarily due to split agreements where the oil and gas owners reach an agreement, which of course is another solution to the problem. But those are the larger interests where it's worth people finding each other having those negotiations, which would normally involve a lawyer as well. What about arbitration under the Virginia oil and gas set? No one has used it, Your Honor. No one has used it. You have any, any, not that we know of. No one is to why? You have to go. Probably for the reasons that tend to beset arbitration, enforceability. It wouldn't be a public, it wouldn't be a public determination. It wouldn't be presidential, at least with the state court proceedings. You have a body of jurisprudence that develops that people can look at and they can say, well, this was what Harrison, what it was about. This is what this other case was about. Now I know where I stand. Arbitration can't do that. Under the statute of all the parties would have to agree to arbitration. And that may be another barrier. So it just hasn't worked. It's an alternative, but it's not an available method in the proof is it hasn't been availed. Let me jump over to another issue. And that is, you really don't think there was a rigorous analysis. Is that required by Walmart in this case? Do you perform by the district report or the magistrate judge? I do think that there was a rigorous factual analysis performed by the magistrate judge. I agree. There are a lot of facts in the case. But in terms of the issues that we have to look at, in terms of commonality, predominance. We don't have it in front of us, do we? Here's what I would say about that, Your Honor. With respect to the deep dive into the factual record and familiar with the fact familiarity with the factual scenario, I do believe that the court did a more than adequate job. I think the problem with the record, which is clearly correctable on remand, if that's what the court wants to do, is with respect to the relative sparsity on breach of control. If you want to attract issue, for example, that your honor raised, there is a oral argument before Judge Jones. There's a transcript with specific oral argument on the leases in the Edkins case, which were the leases, the silent leases, the class definition, the fact that there were primarily common issues involved in the first marketable product rule and how it supplied. So there is a record there. What's the status of the breach of contract claim in the Addison case? Neither the magistrate judge nor the district court judge addresses that? I believe, Your Honor, that the district court in the Addison case? No, Addkins. I believe, Your Honor, that the district court certified that, that could be clarified on remand. With this comparison, you made a compelling case for the economics of why this, these claims might not be litigated at all but for this class action mechanism. But of course that may be necessary, but by itself is not sufficient. And I think early on you said that, where you implied that the ownership conflict, at least you said in your brief, is in fact a loseery because the plaintiffs have conceded or done the legwork with respect to ownership by filing these papers in court. So you were escrowing the funds and dividing up the class by what they perceived to be the true owners of gas versus coal. Is that your argument that there really isn't a conflict with respect to ownership? Your Honor, that's a common question. Our contention is that as between the gas and coal owners, that conflict is a loseery pursuant to the statute. But the court didn't decide that and the court could decide that as a common question with and with coal owners who wish to be heard on that. That is a complete adjudication. I would note that most coal owners follow the jurisprudence and they've either relinquished their rights or don't consider that they have an interest in it. It would be to the benefit of the coal owners as well to have these questions decided once and for all within these class proceedings so that their rights are adjudicated as well. But do they want to stand on the language of their particular severance, Steve? Tough luck? Your Honor, if... I don't have a literally possibly thousands of different configurations of language in these deeds. Maybe hundreds. That may be true, Your Honor. If they want to stand on the language of their contract. If they want to stand on the language of their contract, they can intervene. They can show any language of their contract that might be material to the issue. I'd say, at Sir Auguste and Mr. Smith's point, and this is what concerns me a little bit. He's saying you're going to be ending up trying these individually. You're going to be trying them on the language of the dates. You're going to be trying them individually on all sorts of issues such as, of course, a conduct, perhaps reliance. All sorts of issues are going to come out that will result in lack of common answers and individual answers. So how do you respond? Your Honor, the common questions still predominate as Walmart and Amgen require. They predominate for these reasons. All of the issues that you identified are not issues that relate only to individual class members or coloners for that matter. They are issues that are recurring common issues that relate to subsets or subclasses or categories within the class that can be designated by objective means that do not rely on state of mind. There aren't reliance issues in this case. I beg to differ with respect to the statute of limitations argument in the thorn case. The fourth circuit said no

. So there is a record there. What's the status of the breach of contract claim in the Addison case? Neither the magistrate judge nor the district court judge addresses that? I believe, Your Honor, that the district court in the Addison case? No, Addkins. I believe, Your Honor, that the district court certified that, that could be clarified on remand. With this comparison, you made a compelling case for the economics of why this, these claims might not be litigated at all but for this class action mechanism. But of course that may be necessary, but by itself is not sufficient. And I think early on you said that, where you implied that the ownership conflict, at least you said in your brief, is in fact a loseery because the plaintiffs have conceded or done the legwork with respect to ownership by filing these papers in court. So you were escrowing the funds and dividing up the class by what they perceived to be the true owners of gas versus coal. Is that your argument that there really isn't a conflict with respect to ownership? Your Honor, that's a common question. Our contention is that as between the gas and coal owners, that conflict is a loseery pursuant to the statute. But the court didn't decide that and the court could decide that as a common question with and with coal owners who wish to be heard on that. That is a complete adjudication. I would note that most coal owners follow the jurisprudence and they've either relinquished their rights or don't consider that they have an interest in it. It would be to the benefit of the coal owners as well to have these questions decided once and for all within these class proceedings so that their rights are adjudicated as well. But do they want to stand on the language of their particular severance, Steve? Tough luck? Your Honor, if... I don't have a literally possibly thousands of different configurations of language in these deeds. Maybe hundreds. That may be true, Your Honor. If they want to stand on the language of their contract. If they want to stand on the language of their contract, they can intervene. They can show any language of their contract that might be material to the issue. I'd say, at Sir Auguste and Mr. Smith's point, and this is what concerns me a little bit. He's saying you're going to be ending up trying these individually. You're going to be trying them on the language of the dates. You're going to be trying them individually on all sorts of issues such as, of course, a conduct, perhaps reliance. All sorts of issues are going to come out that will result in lack of common answers and individual answers. So how do you respond? Your Honor, the common questions still predominate as Walmart and Amgen require. They predominate for these reasons. All of the issues that you identified are not issues that relate only to individual class members or coloners for that matter. They are issues that are recurring common issues that relate to subsets or subclasses or categories within the class that can be designated by objective means that do not rely on state of mind. There aren't reliance issues in this case. I beg to differ with respect to the statute of limitations argument in the thorn case. The fourth circuit said no. There's no categorical rule that it's an individual issue. Yes, of course, the conduct. The course of conduct by the defendants is identical. It is systematic. Their royalty of methodology is identical for each defendant. Their course of conduct in identifying the conflicts and escrowing the funds and causing the royalties to be withheld. The deductions that they make, they don't go lease by lease. They have testified below and there is a record on this that they have standard deduction methodologies. Whatever the lease says, they're doing the same thing for a field to be. The claims that are appended to this, the unjust enrichment claims and the conversion claims. It's possible that the defendants may have acted in a way that unjustly has reached them in one case but didn't in a novel or that there was a conversion or trespass claim in one case. It wasn't in another. I mean, are the variances in the contracts here at lease agreements bound to be a little bit troubling. And then when you add additionally the tort claims which are behaviorally based as opposed to textually based, doesn't add a new element of individual, individual and variation to the whole procedure. Not really your honor because the tort claims, trespass conversion, unjust enrichment are not a state of mind claims. They are going to flow from the adjudication of the basic, predominating issues. And by the way, when you have, we have a uniform. When that wouldn't the tort claims depend on the conduct of each defendant toward the two defendants toward the various 900 or have any claim. Well, they all derive from the royalty issue. So if the improper amount of deduction has been made, that can be framed as a breach of contract. It can also be framed as conversion or trespass on interest. These claims are very much dependent on the same fax scenario. And while they may have different formal elements, they really don't add in different individualized. And trespass claim would vary depending on the actions of each individual defendant took with respect to the land, whether they had authority to go in. Oh, no, I'm sorry, your honor. These trespass claims have to do with trespass on the interests, not trespass on the property. So when you determine the propriety or impropriety of the deductions, you've resolved the conversion issue. You've resolved the trespass issue because you've adjudicated the appropriate division of monies between the lessor and the lesse. And with respect to lease language or contract language, the variations can be determined. They will fall into very limited categories to the extent they are material. The raw material is before the district court now, even back in the days of Scrivener's leases when these were beautifully handwritten with wonderful calligraphy back in the 18th century, they had boilerplate. That's where the word boilerplate comes from. So there are comments. Suppose this becomes unmanageable down the road. As we look at it now, and I know that we're not supposed to approve these certifications on the grounds that the district court can always be certified

. There's no categorical rule that it's an individual issue. Yes, of course, the conduct. The course of conduct by the defendants is identical. It is systematic. Their royalty of methodology is identical for each defendant. Their course of conduct in identifying the conflicts and escrowing the funds and causing the royalties to be withheld. The deductions that they make, they don't go lease by lease. They have testified below and there is a record on this that they have standard deduction methodologies. Whatever the lease says, they're doing the same thing for a field to be. The claims that are appended to this, the unjust enrichment claims and the conversion claims. It's possible that the defendants may have acted in a way that unjustly has reached them in one case but didn't in a novel or that there was a conversion or trespass claim in one case. It wasn't in another. I mean, are the variances in the contracts here at lease agreements bound to be a little bit troubling. And then when you add additionally the tort claims which are behaviorally based as opposed to textually based, doesn't add a new element of individual, individual and variation to the whole procedure. Not really your honor because the tort claims, trespass conversion, unjust enrichment are not a state of mind claims. They are going to flow from the adjudication of the basic, predominating issues. And by the way, when you have, we have a uniform. When that wouldn't the tort claims depend on the conduct of each defendant toward the two defendants toward the various 900 or have any claim. Well, they all derive from the royalty issue. So if the improper amount of deduction has been made, that can be framed as a breach of contract. It can also be framed as conversion or trespass on interest. These claims are very much dependent on the same fax scenario. And while they may have different formal elements, they really don't add in different individualized. And trespass claim would vary depending on the actions of each individual defendant took with respect to the land, whether they had authority to go in. Oh, no, I'm sorry, your honor. These trespass claims have to do with trespass on the interests, not trespass on the property. So when you determine the propriety or impropriety of the deductions, you've resolved the conversion issue. You've resolved the trespass issue because you've adjudicated the appropriate division of monies between the lessor and the lesse. And with respect to lease language or contract language, the variations can be determined. They will fall into very limited categories to the extent they are material. The raw material is before the district court now, even back in the days of Scrivener's leases when these were beautifully handwritten with wonderful calligraphy back in the 18th century, they had boilerplate. That's where the word boilerplate comes from. So there are comments. Suppose this becomes unmanageable down the road. As we look at it now, and I know that we're not supposed to approve these certifications on the grounds that the district court can always be certified. But just looking at it now, I guess it's been a year or more, the district court's dealt with this case for three years. There's been a year of fact discovery. And we're still sort of right at the beginning of things. And it looks very complicated. And that there are individual variances right at the get go at the certification stage. And suppose the managerial difficulties just begin to multiply as the case moves forward. What happens then? I mean, what exit ramp is there in the sense if the case begins to prove utterly unmanageable down the road. And as you actually get into the fine print of the individual leases, there really are a lot of differences such that we are ending up with what is in essence, however many trials. But what is the exit right now? The exit ramp is provided under the federal rules. And I think several recent decisions of Judge Posner are instructive on this point. First, the butler case, which was a classification for liability only with damages to be individualized. The court realized that there were resolution drivers that were common liability or common conduct issues that would drive the resolution even if damages needed to be individualized. And the case that Judge Posner cites in butler is the Johnson versus Maritere case involving 23 years of health plan benefit disputes, 10 separate classes, many, many variations. But he said if you look at this methodically, you do an accounting first, which is what we've asked for in this case, the equitable remedy of an accounting under B2. And then the individual damages issues, variations issues, different documents, you categorize those, you create more subclasses. And even if you don't do that and you need individualized adjudications, which we don't believe will ever happen here because none of these leases and none of these scenarios is truly unique. They are patterns. You determine the patterns on a categorical basis, but even if you have individual issues at the end, what you've done is you've advanced the litigation as a whole toward resolution. That's the resolution driver in Walmart and everyone in the class will be farther along than any of them would be if they had to rely on the only available alternative that defendants will posit, which is an individual case, pay as you go case in the Virginia state court. So it's not just a matter of economics, it's a matter of efficiency and fairness. No procedure is perfect. This Court has recognized this in Ginelles and Central Wesleyan. No procedure is perfect, although we are described toward that. But this is the best. There are analogous to this. I mean, any kind of remotely similar fact pattern. I would say the marital case in terms of an accounting first and then damages with the right in terms of real property ownership. Yes, yes, Your Honor. And these cases we cited briefly in our brief and there are a series of cases that involve property that involve contamination. Right, but I'm property diminution people with different interests in real property as opposed to damages that resulted from issues. In those cases, Your Honor, one of the things that has to be done at some stage in those proceedings is to determine who those property owners or homeowners are. And so the class is defined objectively with respect to property owners within geographic meats and bounds or within the town of this is the metric versus met coil case of judge posiners cited in his parco decision. So you just in response to defining the ambit of the damage. Yes, but in terms of. And you don't have an analogous type boundary drawing here, do you? We do

. But just looking at it now, I guess it's been a year or more, the district court's dealt with this case for three years. There's been a year of fact discovery. And we're still sort of right at the beginning of things. And it looks very complicated. And that there are individual variances right at the get go at the certification stage. And suppose the managerial difficulties just begin to multiply as the case moves forward. What happens then? I mean, what exit ramp is there in the sense if the case begins to prove utterly unmanageable down the road. And as you actually get into the fine print of the individual leases, there really are a lot of differences such that we are ending up with what is in essence, however many trials. But what is the exit right now? The exit ramp is provided under the federal rules. And I think several recent decisions of Judge Posner are instructive on this point. First, the butler case, which was a classification for liability only with damages to be individualized. The court realized that there were resolution drivers that were common liability or common conduct issues that would drive the resolution even if damages needed to be individualized. And the case that Judge Posner cites in butler is the Johnson versus Maritere case involving 23 years of health plan benefit disputes, 10 separate classes, many, many variations. But he said if you look at this methodically, you do an accounting first, which is what we've asked for in this case, the equitable remedy of an accounting under B2. And then the individual damages issues, variations issues, different documents, you categorize those, you create more subclasses. And even if you don't do that and you need individualized adjudications, which we don't believe will ever happen here because none of these leases and none of these scenarios is truly unique. They are patterns. You determine the patterns on a categorical basis, but even if you have individual issues at the end, what you've done is you've advanced the litigation as a whole toward resolution. That's the resolution driver in Walmart and everyone in the class will be farther along than any of them would be if they had to rely on the only available alternative that defendants will posit, which is an individual case, pay as you go case in the Virginia state court. So it's not just a matter of economics, it's a matter of efficiency and fairness. No procedure is perfect. This Court has recognized this in Ginelles and Central Wesleyan. No procedure is perfect, although we are described toward that. But this is the best. There are analogous to this. I mean, any kind of remotely similar fact pattern. I would say the marital case in terms of an accounting first and then damages with the right in terms of real property ownership. Yes, yes, Your Honor. And these cases we cited briefly in our brief and there are a series of cases that involve property that involve contamination. Right, but I'm property diminution people with different interests in real property as opposed to damages that resulted from issues. In those cases, Your Honor, one of the things that has to be done at some stage in those proceedings is to determine who those property owners or homeowners are. And so the class is defined objectively with respect to property owners within geographic meats and bounds or within the town of this is the metric versus met coil case of judge posiners cited in his parco decision. So you just in response to defining the ambit of the damage. Yes, but in terms of. And you don't have an analogous type boundary drawing here, do you? We do. We have objectively defined class definitions and the class members are those people that have been identified by the defendants in the course of doing their title searches. In the course of preparing for class notice, we have addresses for 7,905 of them. There are lapsed addresses and those are being updated. So we have what we have here is the basis to we know who's in the class. We know how to notify people. We will have a procedure that people will have to prove up the nature of their ownership. Yes, what about errors test to see at the account for that? Yes, Your Honor, that's what a class action is for you deal with the present owners and of course the membership of the class is fluid because people die property ownership changes and at the appropriate time in the case when it comes time to release the proceeds pursuant to the accounting. Those people will have to come in and prove up no class membership is self execute. It's in a little different here because determining who the errors are determines who owns the property. It's not just simply the back end who gets the royalties but who even owns the property in the first place. Your Honor, the ownership of the gas interest as opposed to the coal interest, the best possible way to establish that has already been done. And it may not be perfect but it can be corrected in individual cases. So we know that categorically. So that's what we need to know at the class certification and notice stage and we get direct mail to those notices, those people. Then what we would need to know at the payout stage is at that time who has succeeded to that interest and that can be done through letters of administration through the way that anybody proves up for example in a wrongful death case. There has to be a judicial determination of ownership before the escrow one is can be released to someone that would seem to make sense. That's correct. All right and is the judicial determination in there of a class action determination? It's the administrative phase of a class action which occurs in all these property contamination, diminution of value cases where people come in and say yes. I am the record I am the record owner as of this date. I inherited that kind of adjudication within the parameters of the class action would would be what is meant. That it stands, it stands to reason that you would have to get the ownership situation. Pretty straightened out before you release Roy updates to somebody and you're saying so are we talking about the district judge hiring a special master here for special special master your honor or claims administrative. There are claims administrators that do this for example. This wouldn't be something that the magistrate judge would do. This would be a claims that you have to have claims administrator to take care of. That's probably right although we're only talking about a few thousand rather than several hundred thousand or a million. For example, your honor in the deep water horizon settlement that's being administered now in the fifth circuit. The noncontroversial aspect of that is with respect to claims based on waterfront property. The class was defined as people who owned property of a certain sort within a defined geographical area. But people have to come in and make claims and they have to prove up their ownership. They have to bring in any other owners because many of these properties have multiple owners. It's the same situation here and that's done by the claims administrator. Has there been a common method of determining what goes into the escrow accounts? Have there been common deductions taken? Has there been a common..

. We have objectively defined class definitions and the class members are those people that have been identified by the defendants in the course of doing their title searches. In the course of preparing for class notice, we have addresses for 7,905 of them. There are lapsed addresses and those are being updated. So we have what we have here is the basis to we know who's in the class. We know how to notify people. We will have a procedure that people will have to prove up the nature of their ownership. Yes, what about errors test to see at the account for that? Yes, Your Honor, that's what a class action is for you deal with the present owners and of course the membership of the class is fluid because people die property ownership changes and at the appropriate time in the case when it comes time to release the proceeds pursuant to the accounting. Those people will have to come in and prove up no class membership is self execute. It's in a little different here because determining who the errors are determines who owns the property. It's not just simply the back end who gets the royalties but who even owns the property in the first place. Your Honor, the ownership of the gas interest as opposed to the coal interest, the best possible way to establish that has already been done. And it may not be perfect but it can be corrected in individual cases. So we know that categorically. So that's what we need to know at the class certification and notice stage and we get direct mail to those notices, those people. Then what we would need to know at the payout stage is at that time who has succeeded to that interest and that can be done through letters of administration through the way that anybody proves up for example in a wrongful death case. There has to be a judicial determination of ownership before the escrow one is can be released to someone that would seem to make sense. That's correct. All right and is the judicial determination in there of a class action determination? It's the administrative phase of a class action which occurs in all these property contamination, diminution of value cases where people come in and say yes. I am the record I am the record owner as of this date. I inherited that kind of adjudication within the parameters of the class action would would be what is meant. That it stands, it stands to reason that you would have to get the ownership situation. Pretty straightened out before you release Roy updates to somebody and you're saying so are we talking about the district judge hiring a special master here for special special master your honor or claims administrative. There are claims administrators that do this for example. This wouldn't be something that the magistrate judge would do. This would be a claims that you have to have claims administrator to take care of. That's probably right although we're only talking about a few thousand rather than several hundred thousand or a million. For example, your honor in the deep water horizon settlement that's being administered now in the fifth circuit. The noncontroversial aspect of that is with respect to claims based on waterfront property. The class was defined as people who owned property of a certain sort within a defined geographical area. But people have to come in and make claims and they have to prove up their ownership. They have to bring in any other owners because many of these properties have multiple owners. It's the same situation here and that's done by the claims administrator. Has there been a common method of determining what goes into the escrow accounts? Have there been common deductions taken? Has there been a common... Absolutely. Have there been common methods of accounting as far as what royalties are due? There really isn't... No, that's why we've asked for an accounting. There's a motion pending now not only for the determination as between a gas and coal, but for an accounting of what's going into those escrow accounts because your honor, what we know is this. The methodology for deductions from royalties and calculating royalties are absolutely uniform. The record is there on that. We also know that there is not an accounting when these monies are put in the escrow accounts. There is not an itemized accounting and that's why we've asked for it. You think that you're pretty seem to indicate that the youth on the companies were using ownership disputes as a pretext or not being forthcoming with respect to what was going on with the escrow accounts that you wanted a greater degree of transparency. Are you making a case that there is a significant degree of stonewalling with respect to the operation of the escrow accounts and that you need the class action to crack it open? We need the class action to solve this impasse and to crack everything open because it's a completely opaque system now. I can't stand here and tell you royalties have been improperly deducted from X-lease because the owners have neither the coal nor gas owners have any knowledge of that because it's a black box. These escrow accounts are black boxes. We know that the defendants are fiduciaries under Virginia law with respect to these. We want to know what is going on your honor. We know that this is going on pursuant to a system. The record is clear about what the system is. The record is clear that it's a method that it's clear it's not individualized. But we don't know what it is. We don't know whether everything that should be in those escrow accounts is in those escrow accounts. If every penny that was in those escrow accounts were in them, they might be larger. They might even justify individual litigation but probably not. And that's why we have a 23 B2 class for the threshold claim, which is an equity claim under Virginia law for an accounting by a fiduciary. All right. Thank you. Thank you very much. Mr. Blank, that's here from you, sir. Thank you. First off, I'll try to respond to three issues. One, Justice Keenan asks, is there a like case? I don't think there is a like case. The closest is Johnson's versus Kansas City Southern from the fifth surf gate. It turns to the ascertain ability. If you have to resort to title, if you have to look at the local land records, which the reporting recommendation says you have to do, you can't get to a class certification because there are two individual class

. Absolutely. Have there been common methods of accounting as far as what royalties are due? There really isn't... No, that's why we've asked for an accounting. There's a motion pending now not only for the determination as between a gas and coal, but for an accounting of what's going into those escrow accounts because your honor, what we know is this. The methodology for deductions from royalties and calculating royalties are absolutely uniform. The record is there on that. We also know that there is not an accounting when these monies are put in the escrow accounts. There is not an itemized accounting and that's why we've asked for it. You think that you're pretty seem to indicate that the youth on the companies were using ownership disputes as a pretext or not being forthcoming with respect to what was going on with the escrow accounts that you wanted a greater degree of transparency. Are you making a case that there is a significant degree of stonewalling with respect to the operation of the escrow accounts and that you need the class action to crack it open? We need the class action to solve this impasse and to crack everything open because it's a completely opaque system now. I can't stand here and tell you royalties have been improperly deducted from X-lease because the owners have neither the coal nor gas owners have any knowledge of that because it's a black box. These escrow accounts are black boxes. We know that the defendants are fiduciaries under Virginia law with respect to these. We want to know what is going on your honor. We know that this is going on pursuant to a system. The record is clear about what the system is. The record is clear that it's a method that it's clear it's not individualized. But we don't know what it is. We don't know whether everything that should be in those escrow accounts is in those escrow accounts. If every penny that was in those escrow accounts were in them, they might be larger. They might even justify individual litigation but probably not. And that's why we have a 23 B2 class for the threshold claim, which is an equity claim under Virginia law for an accounting by a fiduciary. All right. Thank you. Thank you very much. Mr. Blank, that's here from you, sir. Thank you. First off, I'll try to respond to three issues. One, Justice Keenan asks, is there a like case? I don't think there is a like case. The closest is Johnson's versus Kansas City Southern from the fifth surf gate. It turns to the ascertain ability. If you have to resort to title, if you have to look at the local land records, which the reporting recommendation says you have to do, you can't get to a class certification because there are two individual class. There's no common thread when you're talking about these issues across the common areas. To your question, Justice Wilkinson, about the tort claims. The conversion claim is the best one to look at. Look at their breeze. They cite to 22 out of 67 wells that they looked at. That's the only record evidence that we have. 22 out of 67 that had a claimed conversion of production before pooling. What about the other 45? It begs the question of the individuality of these issues of the torts. Every tort claim would have a different fact pattern dealing with the different wells, the different methodologies that were done, the variables that go into the deductions. It's one thing to say that deductions were done uniformly. But over the course of the district court adequately analyzed the degree of individuation that might attach to a tort claim. They have no. Does that suggest a remand? Does that suggest one of the questions that would be included in a remand? Unfortunately, it could, but the problem is you can't overcome the threshold issue which was put before the court, which is the ownership issue. If you can't get to the ownership issue, you're in the individualized realm of each of these issues. And you can go back and remand. Your opponent suggested that you could get over the ownership issue, which I think we would all agree is a prior determination that's going to have to be made before royalties can be released because you don't want to be released to the wrong person. So she says, well, let's have a claims administrator or a special master. And in a lot of instances, the ownership issue is going to be fairly cut and dry. And what about a claims administrator that deal with the ownership issue? It goes back to what Mr. Smith said. It's individual by individual. You're going to be doing it in a case by case. There is no road cut and dry way to do this. And to just as yes, in terms of the economics, I actually just to look at foster versus Apache. It's a royalty class action case after Walmart versus Duke. It asks the very statements that you did. Potential plaintiffs are many. Some are perhaps most of them have claims as royalty owners, which would not economically feasible to pursue an individual basis. Defendant resources for resisting any claim or substantial. But these considerations do not overcome the impractic ability of litigating the myriad individual issues present here. That's the problem with us. There's a statute that allows us to do. You're trying to consider, which is a superior vehicle, is one factor of the fact that you've got a large class with a, if she includes a number of people with individual resources with limited resources. And she said that well, maybe 18 or 20 or 25 of these cases have been brought to some sort of conclusion in the Virginia course, which is a very tiny fraction. And a lot of people are simply not going to be able to afford to have their royalty rights, considered a turning speech

. There's no common thread when you're talking about these issues across the common areas. To your question, Justice Wilkinson, about the tort claims. The conversion claim is the best one to look at. Look at their breeze. They cite to 22 out of 67 wells that they looked at. That's the only record evidence that we have. 22 out of 67 that had a claimed conversion of production before pooling. What about the other 45? It begs the question of the individuality of these issues of the torts. Every tort claim would have a different fact pattern dealing with the different wells, the different methodologies that were done, the variables that go into the deductions. It's one thing to say that deductions were done uniformly. But over the course of the district court adequately analyzed the degree of individuation that might attach to a tort claim. They have no. Does that suggest a remand? Does that suggest one of the questions that would be included in a remand? Unfortunately, it could, but the problem is you can't overcome the threshold issue which was put before the court, which is the ownership issue. If you can't get to the ownership issue, you're in the individualized realm of each of these issues. And you can go back and remand. Your opponent suggested that you could get over the ownership issue, which I think we would all agree is a prior determination that's going to have to be made before royalties can be released because you don't want to be released to the wrong person. So she says, well, let's have a claims administrator or a special master. And in a lot of instances, the ownership issue is going to be fairly cut and dry. And what about a claims administrator that deal with the ownership issue? It goes back to what Mr. Smith said. It's individual by individual. You're going to be doing it in a case by case. There is no road cut and dry way to do this. And to just as yes, in terms of the economics, I actually just to look at foster versus Apache. It's a royalty class action case after Walmart versus Duke. It asks the very statements that you did. Potential plaintiffs are many. Some are perhaps most of them have claims as royalty owners, which would not economically feasible to pursue an individual basis. Defendant resources for resisting any claim or substantial. But these considerations do not overcome the impractic ability of litigating the myriad individual issues present here. That's the problem with us. There's a statute that allows us to do. You're trying to consider, which is a superior vehicle, is one factor of the fact that you've got a large class with a, if she includes a number of people with individual resources with limited resources. And she said that well, maybe 18 or 20 or 25 of these cases have been brought to some sort of conclusion in the Virginia course, which is a very tiny fraction. And a lot of people are simply not going to be able to afford to have their royalty rights, considered a turning speech. And I can answer that question very simply. The Virginia Gas and Oil Act was passed in 1990. It has three, two mechanisms and three mechanisms now. One is the split agreement issue deals with potentially the fracker, Godgaston, who has the right to produce or doesn't produce. But the gas act deals with that. And it's worked. I've cited to the record where it, again, $600,000 in a month was distributed, $200,000 in a month. This is recently petitions are put to the Virginia Gas and Oil Board all the time. If there's a change that needs to be made, the legislature can do that. It's a Virginia issue, as you said, Judge Wilkinson. Let me ask you a question, Mr. Blankin. I realize your time's up as well today as you quick. You know, thinking on this, though, as a former trial judge, this case is a nightmare for many of the reasons that you've suggested. But yet the judge certified it anyway. I mean, this kind of case would drive many trial judges into retirement. Okay? But he did it anyway. He must have thought at its core, this was the only way, the only realistic way these people could get anything. Can you answer that? Sure. He expressed his frustration. It's in the record. But it doesn't, you can't get to the class action based on frustration alone. You have to go through those core requirements of Rule 23. If you're going to go on frustration alone, it would proliferate. It would proliferate the class action setting. And here in particular, when you have a mechanism, as Judge Wilkinson pointed out, you've got these other places that the state legislature has set out that are being used every day, or not every day, but over the course of a year. And one of these being distributed, let the state courts do it. Let the legislature fix what if it has inefficiencies. Let them fix the inefficiencies. Don't pigeon it into a Rule 23 class action where it doesn't belong. Thank you, sir. Mr. Smith, let's hear from you. If you have, I'll please a couple of quick points. When I say this, and it's an answer to your questions about the best vehicle, and I hear questions about some less or don't have the money to fund the litigation

. And I can answer that question very simply. The Virginia Gas and Oil Act was passed in 1990. It has three, two mechanisms and three mechanisms now. One is the split agreement issue deals with potentially the fracker, Godgaston, who has the right to produce or doesn't produce. But the gas act deals with that. And it's worked. I've cited to the record where it, again, $600,000 in a month was distributed, $200,000 in a month. This is recently petitions are put to the Virginia Gas and Oil Board all the time. If there's a change that needs to be made, the legislature can do that. It's a Virginia issue, as you said, Judge Wilkinson. Let me ask you a question, Mr. Blankin. I realize your time's up as well today as you quick. You know, thinking on this, though, as a former trial judge, this case is a nightmare for many of the reasons that you've suggested. But yet the judge certified it anyway. I mean, this kind of case would drive many trial judges into retirement. Okay? But he did it anyway. He must have thought at its core, this was the only way, the only realistic way these people could get anything. Can you answer that? Sure. He expressed his frustration. It's in the record. But it doesn't, you can't get to the class action based on frustration alone. You have to go through those core requirements of Rule 23. If you're going to go on frustration alone, it would proliferate. It would proliferate the class action setting. And here in particular, when you have a mechanism, as Judge Wilkinson pointed out, you've got these other places that the state legislature has set out that are being used every day, or not every day, but over the course of a year. And one of these being distributed, let the state courts do it. Let the legislature fix what if it has inefficiencies. Let them fix the inefficiencies. Don't pigeon it into a Rule 23 class action where it doesn't belong. Thank you, sir. Mr. Smith, let's hear from you. If you have, I'll please a couple of quick points. When I say this, and it's an answer to your questions about the best vehicle, and I hear questions about some less or don't have the money to fund the litigation. I don't mean to be, well, don't just when I say this, no, I mean to be overly critical with anyone. But one wonders why interject into the record questions of equitable stopper, and throw an answer for a class action. Why do that? You can look back five years and recover for five years. You don't need that if you can prove, if you can, if you prove you claim. Why for instance, hasn't one plaintiff brought the law? The first marketable product claim implied covenant in a Virginia court and gotten it to the Supreme Court of Virginia where it ought to be decided. Because remember, in all of this discussion, that's the Lynch pin for all of this. The Lynch pin is you don't have to look at contracts. We find ourselves in a very peculiar position. We find ourselves in a very strange way. Thousands and thousands and thousands of alleged breach of contract cases where the plaintiff says we don't have to look at any of the contracts for anything. Why? Because we think the first marketable product rule applies. And saying no way will that fly in front of the Virginia Supreme Court? I'm not saying no way it wouldn't apply. I'm saying why hasn't it been taken there? They are the ones to decide it, George Keenan. That's what I'm saying. The Virginia Supreme Court all decided that. We haven't talked about that first marketable product. One thing we do know about the Virginia jurisprudence. Virginia jurisprudence will not use an implied covenant to rewrite and express contract. So far, that's what it looks like we got. That's how they got over having to read any of the leases. Are you any of the deeds or anything else? The first marketable product. If this case wanted to move along, why haven't somebody taken that case to the Supreme Court of Virginia and found out whether or not it would in these circumstances apply a first marketable product rule and implied couple? That's the next pin of this entire case of it. And if you want to know the best way to handle this case, I say this with some reservation. I don't suggest to you that the legislature is the best way to do it. Or good way. But what I would say is, they're awesome ways, if you sit down and think about it, to get in some of these issues strided other than in federal court and the class action, particularly when it doesn't work for a class action. Why hadn't that case gone on first marketable product? Supreme Court can deal with the law of implied governance and when they appropriate, when they are. And if that had been decided, we'd been well along the way. And for reasons very clear to everybody in this court room today, if it were decided by the Virginia Supreme Court for the plaintiffs, it would have an impact on getting rid of a lot of things. A lot of things. Thank you. We'll come down in Greek Council, where you thank you both for your arguments. And we'll come down in Greek Council moving to our final phase.

All right, we are pleased to get our give up and the EQT production versus a dare and Mr. Blight. Happy to hear from you, sir. Your Honours. Hey, please record. My name is Jonathan Blight and behalf of the Appellants. Michael Smith will be addressing the first marketable product rule in the EQT production company. And we will reserve five minutes for a bottle. District Court have used its discretion and there are three main reasons that this appeal should be granted and certification reversed. First of the core, these class actions are property right cases. Property rights cannot be decided without all the parties that issue in the case. Property rights cases cannot be decided without looking at the underlying convincing documents. Class actions are not designed to do such analysis because of the commonality issue that is required under 23 bit. Second, the classes should not have been certified because rigorous analysis would have evidence that individual issues predominate when there are thousands of tracks of property, thousands of severance deeds, thousands of leases, thousands of parties, no evidence of any damages, of any damage model or damage expert. Third, do we know how many surface owners there are in this case? We don't, Your Honour. That's one of the problems with the District Court's analysis. The rigorous analysis wasn't done to even determine how many claimants there are. The best guess is that there's over 10,000 of gas or surface. Do we have any idea of what the language is in those severance deeds with regard to those individuals? Again, no, Your Honour. We don't. That's one of the problems with the rigorous analysis that wasn't done in this case. You can't decide property rights issues in the abstract. You can't do it because you have to go to those underlying convincing documents. And you have to have all the conflicting claimants here. Virginia Gas and Oil Act governs this case. And in that act, which was set up to safeguard conflicting claimants rights, one thing that the gas act requires is that you identify with conflicting claimants. C and X and EQT did that over the last 22 years. Another element is that they have to escrow the royalties. They did escrow the royalties over the last 22 years. The act is clear that in order to get the money out of the escrow, you need a final decision of a court of competent jurisdiction adjudicating the ownership of COVID-19 as between the conflicting claimants. The class can't do that in the aggregate. The class action can't do that without looking at and analyzing those severance seeds just as keen and just raise. Let me ask you a question about the factual background that I'm not really clear on. I understand the fracking issues with regard to the COVID. Do we have Marcella's share issues in this case or not? This is not a Marcella share. This is a COVID method. That's correct, Your Honour. There's no uniform declaration that can advance this litigation because of the Virginia gas attack, because the requisite commonality doesn't exist. Class, you say you can't at least on this record, but would it be appropriate if we agree with you and send it back if you see if whether or not there could be subclasses created that would divide these into manageable subissues? I don't think so, Your Honour. The reason why it's twofold. One is you don't have all the claimants in the case and that's why you can't drive toward subclasses because the cold claimants aren't in this case. Well, Buckhorn intervening, what, in the Addison cases, is that correct? Buckhorn in Addison, torch in the Hale case, but those are only part of hundreds of coloners that are conflicting with the gas estates. Do we have any idea on this record? How many coloners there are at issue here? We don't. We don't know how many of the best guess is that there's hundreds if not thousands that are coal identified. One of the things that concerns me is you've got a lot of property owners here and the production companies and coal companies have been taking gas from their properties for good many years, but that case. And nobody is, as I can see, has ever recovered so much as a scent. None of the property owners have recovered so much as a scent in terms of royalties. And, you know, it seems to me, you might be content just to let this escrow system go on indefinitely, but how, how, how these many property owners who are owners of the gas estates in this land? How are they going to ever get the royalties that presumably are due? You're on it with all due respect. That statement isn't true. Millions of dollars have come out of this of the escrow account. Have they been paid? They have been paid. The appendix 4455, you can see where Senator Puckett went to the board and actually plotted the board for the effort to the operators and the royalty interest that have been paid millions of dollars have come out of this account of conflicting claimants. I'm not talking about non-conflicting claimants. I'm talking about conflicting claimants in this case because there's three available options to get this money out. You can do it by agreement, which it's done. You can do it by adjudication, which it's done, and you can do it by a voluntary arbitration. And that's the crux here. They have a method to do so. And the populist... Is a class action a superior method? It's not a superior. The reason that it's not a superior method is because you don't have the coal claimants in to find them. It can't possibly be a superior method when the act requires an adjudication between the conflicting claimants. That's the key crux here. You don't have the conflicting claimants here in this case. The plaintiffs, in this case, understood that. When they brought this case, the first complaint had the gaseous dates as the class versus the John Doe unknown coal claimants. But they realized when they got into it, the commonalities destroyed the severance deeds that Justin Skenin brought up. And so what did they do? They asked to amend the complaint to create this concept called an illusory conflict. There's no such thing as an illusory conflict. Not in this case. The conflict is real. And how do we know that? In three weeks, Belcher versus Swords Creek, will be decided up the street in the Virginia Supreme Court, dealing with conflicting claimants where the coalist state has sued the gaseous state. Okay. And the rip was granted as to language of deed talking about coal and other things. And I assume you've been following the briefing in that case. It has the argument expanded beyond the words coal and other things. It has. The arguments do so little bit on that. Yes, your honor. The argument consists of the coal state claimants have made is not only is it the coal and other things, but the issue back to Harrison why it did it deal with the frat gas versus the gau gas. As you know, because you were at Harrison why it was a gau gas case. It didn't deal with the frat gas and there are other issues that the coal claimants want to make, which says in addition to analyzing these severance deeds, they also have an issue with the gau gas versus the frat gas. And the frat gas wasn't decided in Harrison why it's so they've also briefed that issue as well can invade the coal seam according to the coal claimants without their permission. And that's an issue and it can't be decided on a class basis. It has to be decided on a deed by deed least by. Are there common questions here? The class action is regionally based in the southwest part of Virginia to govern by Virginia law. I assume we still do all of them deal with the escrow concept of them deal with yes or stays. I assume that the royalty. The royalty accounting methods that EQT uses uniform throughout the escrow accounts. I mean there are common aspects to this. It's not a nationwide class action. It's not governed by a variety of different laws. I suspect that there are common questions in terms of the way the escrow accounts are handled both in terms of royalty accounting and also in terms of the deductions that you're making in terms of whether you're taking severance deductions also in terms of whether you're paying a sufficient amount. Now, into the escrow accounts that there may be some standardized mechanism by which you are deciding how much you're going to put into the escrow accounts, what you're going to deduct and what the formula is that you're using to determine how much you're going contribute to those accounts. Now why are those con elements here? The answer goes back to Walmart versus Duke. You can come up with those common questions but you don't have common answers that drive this litigation specific to what you said that you're on. The variables when you get underneath the rigorous analysis wasn't done but when you get underneath the variables, they're changed over the course of all these thousands of claimants. They changed over time. Someone that was pooled and produced in 1998 may have a different component than someone that was pooled in 2010 within a specific unit itself. But if you have a common method of determining royalty and you have a common accounting method and you have a common contribution method into the escrow account, can't the individual differences in how many royalties are due one person or another? Isn't our class actions routinely decide that? You're on with all due respect not since Walmart versus Duke. Since Walmart versus Duke, every class action case has come down. Cheap versus exeo in the tenth circuit, boss versus Apache in the West from District of Oklahoma, boss versus Merit, Morrison versus Anodarko, talk versus BP, they've all looked at that issue and they said first you got to look at the leases. If the leases have different language then all the accounting are different. You can't get there. And in a deemed leased situation, the variables drive it. The plaintiffs didn't put on one shred of it. And one of the material variances in the leases that you think are important. The Mr. Smith will talk about it, but the language itself and the leases can vary from at the well-head language versus post-production deductions that are specific, including but not limited to gathering, compression, transportation, you have to look at them on an individualized basis. What are these alternative means of resolving disputes in your view? Why are they likely to be effective so that the property orders and landowners can actually get what's coming through them where gas has been removed from their land? You talked about adjudication being one of those. But tell me about these alternative methods and tell me why you think there's superior to a class action in terms of resolving this. There's superior because property rights can't be decided without all the parties that issue. You cannot have a property rights that is on ownership. And then the royalty, unless you have the first underlying fundamental premise, which is you have a different claimants looking for the same money. And if you don't have them in the same courtroom, you're not adjudicating the ownership. You're not following this. And how the property owners are supposed to proceed? They file a suit and stay court anywhere in the Commonwealth. As they've done, there's a master scheduling order that we talk about in the appendix. There's 20 to 30 of these cases sitting out there in Buchanan. How many of them? I think there's 20 to 30 of them that have been sitting out there, but there have been some that have already been adjudicated. In this very courtroom that this case comes from, the Western District, the heirs of Deskins case. That's how that case gets settled. Mr. Blank, though, it sounds to me really like your argument is suffering from one defect. And that is you're asking us to conclude that all of these problems are fatal. I mean, I agree with you. They're massive problems connected with this class action. But don't we have an even larger umbrella problem in that the district court didn't address them? They did. They didn't. You're correct. I mean, you know, the district court didn't talk about the breach of contract claims. It didn't talk about all these ownership problems. It didn't talk about common answers in Walmart. Why isn't it appropriate to remand to the district court with swordspric pending and with all of those issues that the district court didn't address before simply concluding this is impossible? I've thought about that long, and it may help the court, but this court and the district court to hear what the Supreme Court says in swordscreen. But the fundamental problem that the court can't get over is the Virginia gas oil act saying that it has to be as between conflicting claimants. It doesn't really matter what happens in terms of the decision. It does the litigants in swordscreen between the coal estate and the gas estate. It confirms that there still is conflicts and you can't do it in the abstract. You have to have these parties in the courtroom. And the plaintiffs knew that. The court knew that. Throughout the entire record, what you have is we can't make an all-encompassing decision without the proper parties before the court. Another than adjudication, how does the individual property on a coal-about recovery royalties? They can do it by split agreements under the statute, which is the coal estate and the gas estate come together, make an agreement and decide to split it in a certain way, and the winds of time have changed what that split is, whether it's 50, 50, 90, 10, 60, 40. The General Assembly acknowledged that and believed that. They can come with a voluntary arbitration or the General Assembly, who were in the shadows of, they can change the statute and determine that there's a different way. But it can't be done under the rule 23 context. It just simply is not a contract set up for this issue. And with all due respect, the federal court system shouldn't try to change what the statute set up through the rule 23 contract, especially complete with a record that we have where the analysis wasn't done, count by count. Now, Chief D'Universal Exeo again gives instruction that you have to look at each one of these causes of action, determine the elements. You will not find those elements throughout the record that's before us. I'll you look forward to Mr. Smith, you back. Thank you. Mr. Smith? Thank you. Thank you. Thank you. My name is Mike Smith. I'm with the Christian Barton Law Farm in Richmond. And I'm here today on behalf of VQT. And in the small amount of time remaining, the court will permit me, I would like to talk about the contract cases in the Edgames and the Casas cases. I got a couple points I want to make the time for me. One variation in language. There are very similar problems between the contract cases. And the deed cases, the difference is one difference is the contracts are leases in this case. There are thousands of them. Most were individually negotiated and individually in an interview. Some more than 50 years old, many have been amended, sometimes in hand right. Each lease has its own royalty payment language. There aren't foreign leases used. They're interesting, man, enough in this case. Early on, the plaintiffs asked for copies of all the leases and they were provided. So far as I know, there's been no effort to categorize them, analyze them by either the plaintiffs and the court. And of course, the court hadn't been able to do it. It doesn't have to stand to it. Well, that's a just that it ought to go back for that purpose. You can see that point that it ought to go back to do just that to categorize these leases. I will concede that sending this case back referring to that is certainly a realistic possibility, is certainly a realistic possibility. Remanding this case. But on this record, there has been no rigorous analysis of anything. What happened in Kaiser and Atkins with regard to the magistrates' recommendation being turned around by the district court? If you, if you all please, the district judge reversed it. And that's why I said quietly. We have nothing from Judge Jones on that. We have nothing. Any analysis that was done was done by the magistrate. But the point in fact is even the magistrate didn't have roughly 20 leases at the time in the record and 12 of those leases were put in by EQT. It's not EQT's burden at that point in time to put the leases in and make the point on class certification. But it brought the leases that the only leases that the plaintiffs have brought in are the leases that were attached to the plea. The reparatives of the class. There just has been nothing in this case that looks anything like rigorous analysis. Judge D. Edg, you asked the question about sending it back. Of course it can be sent back. And of course a rigorous analysis can be done. And of course issues of subclass and all can be decided. On these leases however, there is one issue that militates against that. And that's the spectacle of limitations. The trilogy of cases in this court starting with Bruce Arden and Thorne and Graham or Graham L. Those cases stand for the proposition that when plaintiffs allege fraudulent concealment as a ground to equitably stop defendant from pleading the statute of limitations. That's not suitable for class treatment. Those three cases say it. I think it's Grinnell that says we don't care what other courts may say about this. It is clear in the forester that questions of fraud, questions of reasonable reliance. Those questions are not certified. That is one difference, Judge D. Edg, in sending it back for class treatment. I don't believe. And I think Judge Wilkinson was fairly clear on this in Bersard. That would be very difficult to create any kind of class where that statute of limitations case sitting back. And by the way, in the Actions case for instance, Judge D. Edg. That's been paying out. Those royalties have been paid out. And some of the people who have taken the royalties have been taken them for 25 years. I would direct your attention to the appendix of page 3895. You will find a letter there that has everything in the world to do with these cases on these leases. One of the points is made in your reply brief that the money in escrow cannot be released without some judicial determination of the ownership of the CBM between conflicting claim. Is that true in every one of these cases or what kind of first of all what kind of conflict that you're talking about and second of all what kind of judicial determination are you talking about as a precondition to releasing the releasing royalties? Well, on the royalty issue and the release of the royalties. Mr. Blank is better equipped to deal with that issue than I am. But let me describe the fields as I understand them to you and this may get to your question. I hope that it does. In one field adkins royalties have been paid over years. They've been paid like clockwork. In fact, in fact, the less always have accepted the money. Over time, that has interesting. Satchel limitations. Matter of fact, and it also has interesting what did the parties intend when they signed the contract going forward as it relates to. With holding the deductions and charging them against the royal another field of the dean leases. Mr. Blank was talking to you about that's whether all in gas board has come in and issued an order which becomes all intention purposes in its convoluted and complicated. All intention purposes, the lease, it puts the lease in the dean lease cases. Then there are the cases where there is ownership disputes where money is escrowed. Then there's adkins where there are voluntary leases and the money flows like water. That's not a problem. So the leases don't have the same nature problem that the ownership cases have if that helps at all judge Wilkinson. Now, one thing interesting about this appendix document that I referred you to, it's brought into statute of limitations. This is a less or who writes EQT in 1991 and says, I see that you've been charged against my royalty. The Duchess for post production deductions. EQT writes back says yes we have and this is the reason why. In the first lot of that was a thinly veiled threat to bring a suit against EQT. Let me ask you a sort of a global question. Yes sir. And that is, are you telling us today that the better way to resolve these cases is through individual suits in state courts. The cases are governed largely by state law. The state courts already have a number of these cases which have been brought by individual less or is in landowners before them. The relevant decisional law and the relevant statute are all Virginia statutes. And so as I pick up what you are saying and what Mr. Blank is saying is that this really is more of a state matter to be handled under the requisite Virginia statutes and to be handled under the Virginia decisions, Harrison and the life which is state courts are from me. And they are already dealing with a lot of these cases on an individual basis. And that that is simply when we get the what is the superior mechanism here. Having these suits go forward in state courts and continuing that process is preferable to a massive unwieldy class action. Is that the overall point you are making for my game? It is an overall point and may I add to it a little bit. This way the problem with the class action is you are going to have individual cases anyhow. The leases are going to have to be tried. Somebody sometimes is going to have to look at those leases. So if you have a class action you had to move the ball. You have kicked the can down the road. You are going to have all of those issues of being tried. The leased language has got to be considered at some point in time. I will say this to you on your point. I want you to wrap it up quickly. I will wrap it up very quickly. We have more circuit court judges than we have federal district judges in southwest Virginia. And they are questions of Virginia law and it should be decided at that point. Thank you sir. We will be here for you. Thank you, Your Honor. Good morning and may it please the court Elizabeth Cabrazer for the Appalienate of Classes. I think the questions that Your Honors have asked this morning really do frame the question here. The overall question this is in terms of a fact pattern, the antithesis of the Walmart case. Class actions have become exciting in the past few years. Supreme Court has given us new guidance. Could you move that microphone down a little bit? Yes, Your Honor. Thank you. Thank you, Mike Hill. That's great. It has given us new guidance in Walmart and in MGM. But this case, these cases, these five cases are classic class actions. They are local, they are regional, the predominant questions turn on a single decision from the Supreme Court of Virginia and one sentence. Which decision? That would be the Harrison White. In that case, the Colbyn, the CBM gas had migrated. We don't know what the situation is with the Colbyn's here and where the gas is. The court wasn't saying in any case irrespective. Now the Virginia statute has taken care of certainly part of that. But how do you, you don't have a clear answer. I mean, isn't that why swords Creek is addressing and acknowledging the fact that all of these leases, these deeds say different things. And you've got coal and other things. You have potentially thousands of different leases, different terms in the severance states. It's not a clear answer from Harrison Wyatt. It seems to me you're oversimplifying it and perhaps doing it to service to your cause because I do understand the fact that there are many small property owners, surface rights, gas state owners who may not have it be economical to their advantage to have to litigate these cases individually. But it doesn't serve their interest just to say Harrison Wyatt case closed because it doesn't close the case by any matter of need. Your Honor and I did not mean to imply that it did and far be it for me to try to tell you what the meaning of that case is. The point that I was making is that unlike the more sprawling class actions, the ones that have come under criticism, this is a classic class case because whatever the ultimate meaning of the rat with decision and its progeny. Including swords Creek and the one sentence codification of the Colbert methane gas ownership issue in the Virginia statute. There are a limited number of patterns to these leases. The deemed leases are uniform categorically because they're not negotiated with the owners. When you start with the ownership issue because isn't that the threshold that even gets this thing going? Yes, Your Honor. And what sets up this litigation as a quintessential case for class action adjudication, including through appropriate subclasses and through the designation of court. The common questions is that in response to the Supreme Court decision and in response to the more precise language of the statute, each of the defendants has systematically searched title divided up colon gas interests, made submissions under penalty of perjury under oath pursuant to title searches. Go on before the Virginia board, gotten the orders and then proceeded to extract the methane and put the payments, the royalty payments in suspense. Do you know how many severance deeds are at this issue in this case? There would be thousands of severance deeds, Your Honor. Do we do know how many different forms of grants and grant language? Is there any way of knowing that going into this case? There is a way of knowing that specifically by examining those leases and it is something that can be done. We would argue that if this court believes it should be done on an ongoing basis in connection with class certification. Then these cases as the defendant's agree should be remanded to do just that. However, in terms of the certification by the district court, we also argue that that was not an abuse of discretion because based on the least language that was submitted by both sides to the court, a court was able to ascertain that with respect to the issues in this case, not a deed language in Tocho, but with respect to the issues that matter in this case. For example, the issue of who owns the methane gas, the gas owner or the coal owner, with respect to the breach of contract cases, that class definition is restricted to leases that are silent as to the deductions. So while there might be many variations in non-material language of those deeds, the material provisions of those deeds for purposes of making the determinations of the basic issues in this case, the predominant common issues in this case. What about the absence of the coal owners? Your Honor, the district court has addressed the absence of the coal owners in two ways. First, as you heard, the major coal owners, the four major coal owners, which collectively have consolidated over half of the coal interests, are named parties in the suit. They participate in the briefing. They're interveners. So the court there has used the intervention rule to deal with that. Now, you might ask what about the remaining coal owners? Those coal owners are being notified by the court. They are being sent direct mail notice, pursuant to a notice program that the court is currently considering. And that notice tells the coal owners about the litigation that there are summary judgment motions pending and explains to them how to get more information about the suit and how to come into the suit. So any coal owner who truly wants to participate in this dispute will be able to do so before there is a final adjudication. So the due process requirements articulated by the Supreme Court in Taylor versus Sturgeon are fully satisfied, notice and an opportunity to be heard. Why can't this poll matter be better resolved in state court? There doesn't seem to be any federal question really here. The state law is peculiarly suited to adjudicating property rights. I mean, property rights is right at the heart of what state law is all about. They're going to be governed by state decision law. The state statutes are salient. There are questions of state law. I mean, they're their cases before the state's circuit judges. And I don't know and they're doesn't seem to me. I don't understand what the federal interest is here just in conducting an interest analysis, which I think is fair to do with rule 23. Why isn't the state's interest paramount here? Why should we be shoe warning this into a federal class class action? Your honor, the answer to that question is bound up in what the Supreme Court has said in Amgen most recently about rule 23 B3 and the purpose of that stat that that federal rule. And this is a multi state state, a multi step procedure. So bear with me for just a moment because I'm going to answer your question. As the Supreme Court said in Amgen, the office of a rule 23 B3 certification ruling is not to adjudicate the case. Rather, it is to select the method best suited to adjudication of the controversy fairly and efficiently. That's Amgen at 133 Supreme Court page 1191. And you might ask what business and you did ask what business does a federal court have applying this rule 23 function in this case. And the answer is this, Congress has declared that reason not in a particular subject matter statute. This is not subject matter jurisdiction. This is diversity jurisdiction, but the diversity jurisdiction comes from the class action fairness act of 2005. And in that act, Congress said, and I quote the purpose. But I'm trying to ask which is the relatively superior method of resolving this. You know, the class action has problems simply because of the variances and the terms of the individual leases because of ownership disputes, because of differences in damages. And the individual claimants here, the members of the class are quite differently situated in some respects, not in other respects. We're always talking about a gas estate. We're talking about that relationship royalties in the escrow. But in many respects, the individual class members are indeed differently situated. And the differences are not insignificant. So why is this a superior vehicle to letting those these cases go forward on a more individualized basis in state court, which where the state courts have a deeper fund of expertise. And they can account an individual actions for differences in individual circumstances. And we have to ask ourselves why the class action is a superior mechanism for attacking this whole issue. And that's what I want you to get at with. Yes, Your Honor. It is the superior mechanism for attacking this whole issue. It's not only the best mechanism. It's the only mechanism here on the economics tell the tale. Every procedure has a price tag. And when we look at superiority, it's a relativistic analysis. And you have to deal with fairness and you have to deal with efficiency and you have to deal with economy. That's what the Supreme Court tells us. That's one reason why Kaffa enables us to get down to this case. All right, this case, the economics are inexorable, Your Honor. There are approximately 90 accounts here that are being held in these escrow. They total approximately $26 million. In over half of the sub accounts, there are less than $5,000. In one third of the EQT sub accounts, there are less than $1,000. In 127 of the CNX accounts, there are less than $1,000. The filing fee alone to file a declaratory relief action in the Virginia courts now, I believe is $82. Since the Supreme Court and the statute have teed up this issue, there have been between 12 and 15 of these individual actions that have gotten all the way through the court system. The gas owners always win. I would imagine that there are slightly different circumstances among those cases as to what the leases say and what the interests are. You say the gas owners always win. There are 20 or 30 of these cases you are attending. But Your Honor, if you look at the class, the minimum number of class members is 900. We know it's several thousand, but let's say it's 1,000. In 10 years, 15 have gotten through the state court system. 15. We're going to take what, another 700, 800 years to go through these cases. There's a reason that there are so few of these cases. It's not just that the amounts are small. It's that every procedure has a price tag in these cases cost money. There are only one or two attorneys. The same individual class members lack the resources to hire lawyers and prosecute their cases through state court. That is correct. It isn't economically feasible for a number of reasons, Your Honor. The nominal amounts at stake, which are nominal. These are, this money is important to these people, but it's not enough to justify an individual suit. Would it be consumed in attorney's fees? It would be consumed in attorney's fees. In fact, the one or two attorneys currently taking these cases, I know one of them only takes a case that's worth at least $100,000 because under that it's not economically feasible. So that means that the vast majority of the members in these defined classes are basically out of luck and out of court. Were it not for the fact that the Class Action Fairness Act, which was enacted to provide prompt recoveries for class members? The link with the royalties had actually been paid. The landowners said, well, we've been looking for decades and nobody's gotten any money. He said, that's not correct, Your Honor. There have been sizeable royalties paid to the individual landowners. Is that is his representation correct there? There have been some sizeable payments made and those are primarily due to split agreements where the oil and gas owners reach an agreement, which of course is another solution to the problem. But those are the larger interests where it's worth people finding each other having those negotiations, which would normally involve a lawyer as well. What about arbitration under the Virginia oil and gas set? No one has used it, Your Honor. No one has used it. You have any, any, not that we know of. No one is to why? You have to go. Probably for the reasons that tend to beset arbitration, enforceability. It wouldn't be a public, it wouldn't be a public determination. It wouldn't be presidential, at least with the state court proceedings. You have a body of jurisprudence that develops that people can look at and they can say, well, this was what Harrison, what it was about. This is what this other case was about. Now I know where I stand. Arbitration can't do that. Under the statute of all the parties would have to agree to arbitration. And that may be another barrier. So it just hasn't worked. It's an alternative, but it's not an available method in the proof is it hasn't been availed. Let me jump over to another issue. And that is, you really don't think there was a rigorous analysis. Is that required by Walmart in this case? Do you perform by the district report or the magistrate judge? I do think that there was a rigorous factual analysis performed by the magistrate judge. I agree. There are a lot of facts in the case. But in terms of the issues that we have to look at, in terms of commonality, predominance. We don't have it in front of us, do we? Here's what I would say about that, Your Honor. With respect to the deep dive into the factual record and familiar with the fact familiarity with the factual scenario, I do believe that the court did a more than adequate job. I think the problem with the record, which is clearly correctable on remand, if that's what the court wants to do, is with respect to the relative sparsity on breach of control. If you want to attract issue, for example, that your honor raised, there is a oral argument before Judge Jones. There's a transcript with specific oral argument on the leases in the Edkins case, which were the leases, the silent leases, the class definition, the fact that there were primarily common issues involved in the first marketable product rule and how it supplied. So there is a record there. What's the status of the breach of contract claim in the Addison case? Neither the magistrate judge nor the district court judge addresses that? I believe, Your Honor, that the district court in the Addison case? No, Addkins. I believe, Your Honor, that the district court certified that, that could be clarified on remand. With this comparison, you made a compelling case for the economics of why this, these claims might not be litigated at all but for this class action mechanism. But of course that may be necessary, but by itself is not sufficient. And I think early on you said that, where you implied that the ownership conflict, at least you said in your brief, is in fact a loseery because the plaintiffs have conceded or done the legwork with respect to ownership by filing these papers in court. So you were escrowing the funds and dividing up the class by what they perceived to be the true owners of gas versus coal. Is that your argument that there really isn't a conflict with respect to ownership? Your Honor, that's a common question. Our contention is that as between the gas and coal owners, that conflict is a loseery pursuant to the statute. But the court didn't decide that and the court could decide that as a common question with and with coal owners who wish to be heard on that. That is a complete adjudication. I would note that most coal owners follow the jurisprudence and they've either relinquished their rights or don't consider that they have an interest in it. It would be to the benefit of the coal owners as well to have these questions decided once and for all within these class proceedings so that their rights are adjudicated as well. But do they want to stand on the language of their particular severance, Steve? Tough luck? Your Honor, if... I don't have a literally possibly thousands of different configurations of language in these deeds. Maybe hundreds. That may be true, Your Honor. If they want to stand on the language of their contract. If they want to stand on the language of their contract, they can intervene. They can show any language of their contract that might be material to the issue. I'd say, at Sir Auguste and Mr. Smith's point, and this is what concerns me a little bit. He's saying you're going to be ending up trying these individually. You're going to be trying them on the language of the dates. You're going to be trying them individually on all sorts of issues such as, of course, a conduct, perhaps reliance. All sorts of issues are going to come out that will result in lack of common answers and individual answers. So how do you respond? Your Honor, the common questions still predominate as Walmart and Amgen require. They predominate for these reasons. All of the issues that you identified are not issues that relate only to individual class members or coloners for that matter. They are issues that are recurring common issues that relate to subsets or subclasses or categories within the class that can be designated by objective means that do not rely on state of mind. There aren't reliance issues in this case. I beg to differ with respect to the statute of limitations argument in the thorn case. The fourth circuit said no. There's no categorical rule that it's an individual issue. Yes, of course, the conduct. The course of conduct by the defendants is identical. It is systematic. Their royalty of methodology is identical for each defendant. Their course of conduct in identifying the conflicts and escrowing the funds and causing the royalties to be withheld. The deductions that they make, they don't go lease by lease. They have testified below and there is a record on this that they have standard deduction methodologies. Whatever the lease says, they're doing the same thing for a field to be. The claims that are appended to this, the unjust enrichment claims and the conversion claims. It's possible that the defendants may have acted in a way that unjustly has reached them in one case but didn't in a novel or that there was a conversion or trespass claim in one case. It wasn't in another. I mean, are the variances in the contracts here at lease agreements bound to be a little bit troubling. And then when you add additionally the tort claims which are behaviorally based as opposed to textually based, doesn't add a new element of individual, individual and variation to the whole procedure. Not really your honor because the tort claims, trespass conversion, unjust enrichment are not a state of mind claims. They are going to flow from the adjudication of the basic, predominating issues. And by the way, when you have, we have a uniform. When that wouldn't the tort claims depend on the conduct of each defendant toward the two defendants toward the various 900 or have any claim. Well, they all derive from the royalty issue. So if the improper amount of deduction has been made, that can be framed as a breach of contract. It can also be framed as conversion or trespass on interest. These claims are very much dependent on the same fax scenario. And while they may have different formal elements, they really don't add in different individualized. And trespass claim would vary depending on the actions of each individual defendant took with respect to the land, whether they had authority to go in. Oh, no, I'm sorry, your honor. These trespass claims have to do with trespass on the interests, not trespass on the property. So when you determine the propriety or impropriety of the deductions, you've resolved the conversion issue. You've resolved the trespass issue because you've adjudicated the appropriate division of monies between the lessor and the lesse. And with respect to lease language or contract language, the variations can be determined. They will fall into very limited categories to the extent they are material. The raw material is before the district court now, even back in the days of Scrivener's leases when these were beautifully handwritten with wonderful calligraphy back in the 18th century, they had boilerplate. That's where the word boilerplate comes from. So there are comments. Suppose this becomes unmanageable down the road. As we look at it now, and I know that we're not supposed to approve these certifications on the grounds that the district court can always be certified. But just looking at it now, I guess it's been a year or more, the district court's dealt with this case for three years. There's been a year of fact discovery. And we're still sort of right at the beginning of things. And it looks very complicated. And that there are individual variances right at the get go at the certification stage. And suppose the managerial difficulties just begin to multiply as the case moves forward. What happens then? I mean, what exit ramp is there in the sense if the case begins to prove utterly unmanageable down the road. And as you actually get into the fine print of the individual leases, there really are a lot of differences such that we are ending up with what is in essence, however many trials. But what is the exit right now? The exit ramp is provided under the federal rules. And I think several recent decisions of Judge Posner are instructive on this point. First, the butler case, which was a classification for liability only with damages to be individualized. The court realized that there were resolution drivers that were common liability or common conduct issues that would drive the resolution even if damages needed to be individualized. And the case that Judge Posner cites in butler is the Johnson versus Maritere case involving 23 years of health plan benefit disputes, 10 separate classes, many, many variations. But he said if you look at this methodically, you do an accounting first, which is what we've asked for in this case, the equitable remedy of an accounting under B2. And then the individual damages issues, variations issues, different documents, you categorize those, you create more subclasses. And even if you don't do that and you need individualized adjudications, which we don't believe will ever happen here because none of these leases and none of these scenarios is truly unique. They are patterns. You determine the patterns on a categorical basis, but even if you have individual issues at the end, what you've done is you've advanced the litigation as a whole toward resolution. That's the resolution driver in Walmart and everyone in the class will be farther along than any of them would be if they had to rely on the only available alternative that defendants will posit, which is an individual case, pay as you go case in the Virginia state court. So it's not just a matter of economics, it's a matter of efficiency and fairness. No procedure is perfect. This Court has recognized this in Ginelles and Central Wesleyan. No procedure is perfect, although we are described toward that. But this is the best. There are analogous to this. I mean, any kind of remotely similar fact pattern. I would say the marital case in terms of an accounting first and then damages with the right in terms of real property ownership. Yes, yes, Your Honor. And these cases we cited briefly in our brief and there are a series of cases that involve property that involve contamination. Right, but I'm property diminution people with different interests in real property as opposed to damages that resulted from issues. In those cases, Your Honor, one of the things that has to be done at some stage in those proceedings is to determine who those property owners or homeowners are. And so the class is defined objectively with respect to property owners within geographic meats and bounds or within the town of this is the metric versus met coil case of judge posiners cited in his parco decision. So you just in response to defining the ambit of the damage. Yes, but in terms of. And you don't have an analogous type boundary drawing here, do you? We do. We have objectively defined class definitions and the class members are those people that have been identified by the defendants in the course of doing their title searches. In the course of preparing for class notice, we have addresses for 7,905 of them. There are lapsed addresses and those are being updated. So we have what we have here is the basis to we know who's in the class. We know how to notify people. We will have a procedure that people will have to prove up the nature of their ownership. Yes, what about errors test to see at the account for that? Yes, Your Honor, that's what a class action is for you deal with the present owners and of course the membership of the class is fluid because people die property ownership changes and at the appropriate time in the case when it comes time to release the proceeds pursuant to the accounting. Those people will have to come in and prove up no class membership is self execute. It's in a little different here because determining who the errors are determines who owns the property. It's not just simply the back end who gets the royalties but who even owns the property in the first place. Your Honor, the ownership of the gas interest as opposed to the coal interest, the best possible way to establish that has already been done. And it may not be perfect but it can be corrected in individual cases. So we know that categorically. So that's what we need to know at the class certification and notice stage and we get direct mail to those notices, those people. Then what we would need to know at the payout stage is at that time who has succeeded to that interest and that can be done through letters of administration through the way that anybody proves up for example in a wrongful death case. There has to be a judicial determination of ownership before the escrow one is can be released to someone that would seem to make sense. That's correct. All right and is the judicial determination in there of a class action determination? It's the administrative phase of a class action which occurs in all these property contamination, diminution of value cases where people come in and say yes. I am the record I am the record owner as of this date. I inherited that kind of adjudication within the parameters of the class action would would be what is meant. That it stands, it stands to reason that you would have to get the ownership situation. Pretty straightened out before you release Roy updates to somebody and you're saying so are we talking about the district judge hiring a special master here for special special master your honor or claims administrative. There are claims administrators that do this for example. This wouldn't be something that the magistrate judge would do. This would be a claims that you have to have claims administrator to take care of. That's probably right although we're only talking about a few thousand rather than several hundred thousand or a million. For example, your honor in the deep water horizon settlement that's being administered now in the fifth circuit. The noncontroversial aspect of that is with respect to claims based on waterfront property. The class was defined as people who owned property of a certain sort within a defined geographical area. But people have to come in and make claims and they have to prove up their ownership. They have to bring in any other owners because many of these properties have multiple owners. It's the same situation here and that's done by the claims administrator. Has there been a common method of determining what goes into the escrow accounts? Have there been common deductions taken? Has there been a common... Absolutely. Have there been common methods of accounting as far as what royalties are due? There really isn't... No, that's why we've asked for an accounting. There's a motion pending now not only for the determination as between a gas and coal, but for an accounting of what's going into those escrow accounts because your honor, what we know is this. The methodology for deductions from royalties and calculating royalties are absolutely uniform. The record is there on that. We also know that there is not an accounting when these monies are put in the escrow accounts. There is not an itemized accounting and that's why we've asked for it. You think that you're pretty seem to indicate that the youth on the companies were using ownership disputes as a pretext or not being forthcoming with respect to what was going on with the escrow accounts that you wanted a greater degree of transparency. Are you making a case that there is a significant degree of stonewalling with respect to the operation of the escrow accounts and that you need the class action to crack it open? We need the class action to solve this impasse and to crack everything open because it's a completely opaque system now. I can't stand here and tell you royalties have been improperly deducted from X-lease because the owners have neither the coal nor gas owners have any knowledge of that because it's a black box. These escrow accounts are black boxes. We know that the defendants are fiduciaries under Virginia law with respect to these. We want to know what is going on your honor. We know that this is going on pursuant to a system. The record is clear about what the system is. The record is clear that it's a method that it's clear it's not individualized. But we don't know what it is. We don't know whether everything that should be in those escrow accounts is in those escrow accounts. If every penny that was in those escrow accounts were in them, they might be larger. They might even justify individual litigation but probably not. And that's why we have a 23 B2 class for the threshold claim, which is an equity claim under Virginia law for an accounting by a fiduciary. All right. Thank you. Thank you very much. Mr. Blank, that's here from you, sir. Thank you. First off, I'll try to respond to three issues. One, Justice Keenan asks, is there a like case? I don't think there is a like case. The closest is Johnson's versus Kansas City Southern from the fifth surf gate. It turns to the ascertain ability. If you have to resort to title, if you have to look at the local land records, which the reporting recommendation says you have to do, you can't get to a class certification because there are two individual class. There's no common thread when you're talking about these issues across the common areas. To your question, Justice Wilkinson, about the tort claims. The conversion claim is the best one to look at. Look at their breeze. They cite to 22 out of 67 wells that they looked at. That's the only record evidence that we have. 22 out of 67 that had a claimed conversion of production before pooling. What about the other 45? It begs the question of the individuality of these issues of the torts. Every tort claim would have a different fact pattern dealing with the different wells, the different methodologies that were done, the variables that go into the deductions. It's one thing to say that deductions were done uniformly. But over the course of the district court adequately analyzed the degree of individuation that might attach to a tort claim. They have no. Does that suggest a remand? Does that suggest one of the questions that would be included in a remand? Unfortunately, it could, but the problem is you can't overcome the threshold issue which was put before the court, which is the ownership issue. If you can't get to the ownership issue, you're in the individualized realm of each of these issues. And you can go back and remand. Your opponent suggested that you could get over the ownership issue, which I think we would all agree is a prior determination that's going to have to be made before royalties can be released because you don't want to be released to the wrong person. So she says, well, let's have a claims administrator or a special master. And in a lot of instances, the ownership issue is going to be fairly cut and dry. And what about a claims administrator that deal with the ownership issue? It goes back to what Mr. Smith said. It's individual by individual. You're going to be doing it in a case by case. There is no road cut and dry way to do this. And to just as yes, in terms of the economics, I actually just to look at foster versus Apache. It's a royalty class action case after Walmart versus Duke. It asks the very statements that you did. Potential plaintiffs are many. Some are perhaps most of them have claims as royalty owners, which would not economically feasible to pursue an individual basis. Defendant resources for resisting any claim or substantial. But these considerations do not overcome the impractic ability of litigating the myriad individual issues present here. That's the problem with us. There's a statute that allows us to do. You're trying to consider, which is a superior vehicle, is one factor of the fact that you've got a large class with a, if she includes a number of people with individual resources with limited resources. And she said that well, maybe 18 or 20 or 25 of these cases have been brought to some sort of conclusion in the Virginia course, which is a very tiny fraction. And a lot of people are simply not going to be able to afford to have their royalty rights, considered a turning speech. And I can answer that question very simply. The Virginia Gas and Oil Act was passed in 1990. It has three, two mechanisms and three mechanisms now. One is the split agreement issue deals with potentially the fracker, Godgaston, who has the right to produce or doesn't produce. But the gas act deals with that. And it's worked. I've cited to the record where it, again, $600,000 in a month was distributed, $200,000 in a month. This is recently petitions are put to the Virginia Gas and Oil Board all the time. If there's a change that needs to be made, the legislature can do that. It's a Virginia issue, as you said, Judge Wilkinson. Let me ask you a question, Mr. Blankin. I realize your time's up as well today as you quick. You know, thinking on this, though, as a former trial judge, this case is a nightmare for many of the reasons that you've suggested. But yet the judge certified it anyway. I mean, this kind of case would drive many trial judges into retirement. Okay? But he did it anyway. He must have thought at its core, this was the only way, the only realistic way these people could get anything. Can you answer that? Sure. He expressed his frustration. It's in the record. But it doesn't, you can't get to the class action based on frustration alone. You have to go through those core requirements of Rule 23. If you're going to go on frustration alone, it would proliferate. It would proliferate the class action setting. And here in particular, when you have a mechanism, as Judge Wilkinson pointed out, you've got these other places that the state legislature has set out that are being used every day, or not every day, but over the course of a year. And one of these being distributed, let the state courts do it. Let the legislature fix what if it has inefficiencies. Let them fix the inefficiencies. Don't pigeon it into a Rule 23 class action where it doesn't belong. Thank you, sir. Mr. Smith, let's hear from you. If you have, I'll please a couple of quick points. When I say this, and it's an answer to your questions about the best vehicle, and I hear questions about some less or don't have the money to fund the litigation. I don't mean to be, well, don't just when I say this, no, I mean to be overly critical with anyone. But one wonders why interject into the record questions of equitable stopper, and throw an answer for a class action. Why do that? You can look back five years and recover for five years. You don't need that if you can prove, if you can, if you prove you claim. Why for instance, hasn't one plaintiff brought the law? The first marketable product claim implied covenant in a Virginia court and gotten it to the Supreme Court of Virginia where it ought to be decided. Because remember, in all of this discussion, that's the Lynch pin for all of this. The Lynch pin is you don't have to look at contracts. We find ourselves in a very peculiar position. We find ourselves in a very strange way. Thousands and thousands and thousands of alleged breach of contract cases where the plaintiff says we don't have to look at any of the contracts for anything. Why? Because we think the first marketable product rule applies. And saying no way will that fly in front of the Virginia Supreme Court? I'm not saying no way it wouldn't apply. I'm saying why hasn't it been taken there? They are the ones to decide it, George Keenan. That's what I'm saying. The Virginia Supreme Court all decided that. We haven't talked about that first marketable product. One thing we do know about the Virginia jurisprudence. Virginia jurisprudence will not use an implied covenant to rewrite and express contract. So far, that's what it looks like we got. That's how they got over having to read any of the leases. Are you any of the deeds or anything else? The first marketable product. If this case wanted to move along, why haven't somebody taken that case to the Supreme Court of Virginia and found out whether or not it would in these circumstances apply a first marketable product rule and implied couple? That's the next pin of this entire case of it. And if you want to know the best way to handle this case, I say this with some reservation. I don't suggest to you that the legislature is the best way to do it. Or good way. But what I would say is, they're awesome ways, if you sit down and think about it, to get in some of these issues strided other than in federal court and the class action, particularly when it doesn't work for a class action. Why hadn't that case gone on first marketable product? Supreme Court can deal with the law of implied governance and when they appropriate, when they are. And if that had been decided, we'd been well along the way. And for reasons very clear to everybody in this court room today, if it were decided by the Virginia Supreme Court for the plaintiffs, it would have an impact on getting rid of a lot of things. A lot of things. Thank you. We'll come down in Greek Council, where you thank you both for your arguments. And we'll come down in Greek Council moving to our final phase

Legal Case Summary

EQT Production Company v. Robert Adair

Date Argued: Tue May 13 2014

Case Number: 14-20450

Docket Number: 2591214

Judges:J. Harvie Wilkinson III, Barbara Milano Keenan, Albert Diaz

Duration: 73 minutes

Court Name: Court of Appeals for the Fourth Circuit

Case Summary

EQT Production Company v. Robert Adair

Oral Audio Transcript(Beta version)