April 21, 2019

Tenth Circuit: Plaintiffs Bear Burden of Showing Class Complies with F.R.C.P. 23

The Tenth Circuit Court of Appeals published its opinion in Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc. on Thursday, July 11, 2013.

Defendant-Appellant XTO Energy Inc. (XTO) appealed from the district court’s order certifying a class of Kansas royalty owners, represented by Plaintiff-Appellee Wallace B. Roderick Revocable Living Trust (the Trust), who seek recovery for XTO’s alleged underpayment of royalties. Specifically, the Trust claims XTO violated Kansas law by improperly deducting costs associated with placing the gas into “marketable condition.” The district court certified the class under F.R.C.P. 23(b)(3).

The Tenth Circuit found that the district court improperly shifted the burden of proof by requiring XTO to disprove commonality and this was an abuse of discretion. The court also instructed the district court to conduct a more rigorous Rule 23(b) predominance analysis on remand.

The court rejected the Trust’s argument that XTO should be estopped from litigating class certification issues here based on XTO’s previous settlement in another royalty class action. The Trust had not met its burden of showing the issues were identical in both cases.

The court vacated class certification and remanded.

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