DASA Investments, Inc. v. EnerVest Operating, LLC, et al.
DASA-EnerVest-SM Energy Settlement
6:18-CIV-083-SPS

Frequently Asked Questions

 

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  • You were sent a Notice because you may be a member of the Settlement Class in the Litigation as described therein. The Notice package describes the Litigation, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them. The Court caused the Notice to be sent to you because, if you fall within this group and are not otherwise excluded from the Settlement Class, your rights will be affected and you have a right to know about the proposed Settlement, and about all of your options, before the Court decides whether to approve the Settlement. If the Court approves the Settlement, after any objections and appeals are resolved, the Court-appointed Settlement Administrator will cause payments to be made to Class Members in accordance with the Settlement Agreement.

  • The Litigation seeks damages for Defendants’ alleged failure to pay statutory interest on payments made by Defendants (or on behalf of Defendants) outside the time periods set forth in the Production Revenue Standards Act, 52 Okla. St. §570.1, et seq. (the “PRSA”) for oil and gas production proceeds from oil and gas wells in Oklahoma. Specifically, in its Complaint, Plaintiff alleges that Defendants: (1) failed to pay or delayed payment of statutory interest on payments made outside the time periods set forth in the PRSA or any applicable statute or contract; (2) underpaid statutory interest due under the PRSA or any applicable contract; (3) awaited a demand prior to paying statutory interest under the PRSA; (4) misrepresented and/or omitted the amount of statutory interest owed; and (5) are liable to Class Members for breach of duties under the PRSA, actual fraud, constructive fraud, deceit, unjust enrichment/disgorgement, accounting, punitive damages, and injunctive relief.

    Defendants expressly deny all of Plaintiff’s factual and legal allegations. Defendants also expressly deny all of Plaintiff’s allegations that they have done anything wrong, breached any duties under the PRSA, committed any type of fraud, been deceitful, or been unjustly enriched. Defendants also deny they are liable to Plaintiff or any of the Class Members for any of the claims and allegations in the Litigation or that it would be appropriate to award any type of damages, an accounting, or injunctive relief. Defendants further deny it would be appropriate to certify a contested class based on the facts and claims at issue in the Litigation.

    The Court has made no determination with respect to any of the parties’ claims or defenses.

  • In a class action, one or more plaintiffs sue on behalf of people who have similar claims. All of the individuals and entities on whose behalf the plaintiff is suing are class members. One court resolves the issues for all class members, except for those who choose to exclude themselves from the class. Here, United States District Court Magistrate Judge Steven P. Shreder is presiding over the Litigation.

  • The Court has not reached a final judgment as to whether the Settlement Class could be certified as a contested class action or that Plaintiff has proven or can prove its claims against the Released Parties. It would likely take several more years before a contested class certification proceeding and trial on the merits could be held, final judgment entered, and appeals exhausted. Instead, Plaintiff and Defendants have agreed to the Settlement in order to resolve the Litigation. In reaching the Settlement, both sides have avoided the risk, cost, and time of a trial, and Plaintiff has avoided any further delay in resolving the Litigation. In addition, as with any litigated case, Plaintiff would face an uncertain outcome if this Litigation went to trial. On the one hand, a trial could result in a verdict greater than the Settlement. However, Defendants have asserted many defenses, and a trial could result in a judgment in favor of Defendants on class certification and liability or a verdict lower than the Settlement Amount that Plaintiff has obtained, or even no recovery at all for Plaintiff and the Class Members. Based on these factors and others, Plaintiff and Plaintiff’s Counsel believe the Settlement is best for all Class Members.

  • The Settlement Class consists of the following individuals and entities:

    All non-excluded persons or entities who received working interest, royalty, and/or overriding royalty payments from a Defendant (or a predecessor of a Defendant) for oil and/or gas proceeds related to wells located in Oklahoma at any time prior to November 1, 2019 (“Owners”).

  • The persons or entities excluded from the Class are: (1) agencies, departments, or instrumentalities of the United States of America or the State of Oklahoma; (2) Commissioners of the Land Office of the State of Oklahoma (“CLO”); (3) publicly traded oil and gas companies and their affiliates; (4) persons or entities that Plaintiff’s counsel may be prohibited from representing under Rule 1.7 of the Oklahoma Rules of Professional Conduct, including, but not limited to, Charles David Nutley, Danny George, Dan McClure, Kelly McClure Callant, and their relatives; (5) officers of the court; and (6) Owners who are entitled to O&G Proceeds from an Oklahoma Well of less than $10.00 for a calendar year pursuant to Okla. Stat. tit. 52 § 570.10(B)(3)(a).

    Also, you are not a Class Member if you exclude yourself from the Settlement Class by submitting a valid and timely Request for Exclusion in accordance with the requirements set forth in this Notice and in the Settlement. The procedure for requesting exclusion from the Settlement Class is described below in the Answer to Question No. 13.

  • If you are still not sure whether you are included, you can ask for help, which will be provided to you at no cost. You can call the Settlement Administrator at 1-844-924-0849 or write to the following address:

    DASA-EnerVest-SM Energy Settlement
    c/o JND Class Action Administration
    P.O. Box 91232
    Seattle, WA 98111-9332

  • In consideration of the Settlement, the EnerVest Defendants have agreed to pay $7,000,000.00 in cash and SM has agreed to pay $1,000,000.00 in cash. In addition, commencing within the later of (i) 6 months after execution of the Settlement Agreement or (ii) 30 days after the date a judgment approving the Settlement becomes Final and Non-Appealable, the EnerVest Defendants will (1) implement new procedures and policies reasonably calculated to accomplish the payment of statutory interest to Owners in Oklahoma without awaiting a demand for such statutory interest, and will maintain such procedures (or other policies and procedures reasonably calculated to accomplish the same result) unless or until there is a change in the law; and (2) take steps reasonably calculated to comply with Oklahoma law regarding the exercise of due diligence and the conduct of meaningful searches to locate Owners. (hereinafter, “Future Benefits”) See the Settlement Agreement for full details. While Defendants have not analyzed and take no position regarding the value of these Future Benefits, Plaintiff estimates these Future Benefits have a net present value of at least $7,000,000.00.

    The Settlement, if approved, will result in the dismissal of the Second Amended Complaint against Defendants and the release by all Class Members of all the Released Claims the Releasing Parties may have against the Released Parties, as defined above in the Answer to Question No. 12. The Net Settlement Fund will be distributed to the Class Members who are not excluded from the Settlement Class in accordance with the provisions of the Allocation Methodology and Plan of Allocation, which is explained below in the Answer to Question No. 9.

  • The Net Settlement Fund shall be allocated to Class Members on the following basis:

    With the Court’s approval, Plaintiff’s Counsel shall, subject to Court approval, allocate the Net Settlement Fund to individual Class Members who are participating in the Settlement proportionately based on the amount of statutory interest owed on the original underlying payment that allegedly occurred outside the time periods required by the PRSA, with due regard for the production date, the date the underlying payment was made, the amount of the underlying payment, the time periods set forth in the PRSA, any additional statutory interest that Plaintiff’s Counsel believes has since accrued, and the amount of interest or returns that have accrued on the Class Member’s proportionate share of the Net Settlement Fund during the time such share was held in the Escrow Account. This allocation is subject to modification by Plaintiff’s Counsel and final approval by the Court.

    If you have questions about the tax consequences of participating in the Settlement, you should consult with your own tax advisor.

  • If you do not exclude yourself pursuant to the procedure set forth in Answer to Question No. 13 below, YOU DO NOT NEED TO TAKE ANY ACTION WHATSOEVER to receive your portion of the Net Settlement Fund (if any).

  • Payment to Class Members is contingent on several matters, including the Court’s approval of the Settlement and that approval becoming final and no longer subject to any appeal to any court, as set forth more specifically in paragraph 1.14 of the Settlement Agreement.

    The Net Settlement Fund will be distributed by the Settlement Administrator as soon as reasonably possible after final approval has been obtained for the Settlement and any appeals are exhausted. The Settlement Agreement specifies deadlines for distributing the Net Settlement Fund. Any appeal of final approval could take well in excess of one year. It is not anticipated that any meaningful interest will accrue on the Net Settlement Fund. The Settlement will terminate if the Court does not approve the terms of the Settlement or if a Judgment approving the Settlement is reversed on appeal. If the Settlement terminates, the Litigation will proceed as if the Settlement had not been reached.

  • Unless you exclude yourself from the Settlement Class, if the Settlement is approved, you will be a Class Member. As a Class Member, you will receive any portion of the Net Settlement Fund allocated to you and will be bound by all orders and judgments entered by the Court regarding the Settlement. If the Settlement is approved, you will not be able to sue, continue to sue, or be part of any other lawsuit against any of the Released Parties concerning any of the Released Claims.

    Claim Period” means any time up to and including October 31, 2019.

    Released Claims” means all claims and damages asserted in the Second Amended Complaint (statutory, contract, tort, equitable, punitive, and other relief), and all claims arising out of or related to unpaid statutory interest for payments on Oklahoma oil or gas production made or issued at any time prior to November 1, 2019, and all claims that could have been asserted in any forum or venue related to unpaid statutory interest under the Production Revenue Standard Act, 52 Okla. St. §570.1, et seq. (the “PRSA”), whether known or unknown, whether at law or in equity, or under any statute, and including any and all relief and remedies, except for claims excluded from the scope of Released Claims, as described in the paragraph below. The release of Released Claims will be effective as against a Settlement Class Member without regard to whether a Settlement Class Member actually received a payment from the Net Settlement Fund and without regard to whether any payment received was correctly determined.

    Released Parties” means the EnerVest Defendants and SM, as well as their respective past, present, and future subsidiaries and affiliates (entities which own an interest in any EnerVest Defendant or SM, or in which any EnerVest Defendant or SM owns an interest), and any and all of their past, present, and future officers, directors, employees, general partners, members, managers, agents, attorneys, board members, successors, assigns, and consultants. Additionally, “Released Parties” includes all non-operator co-working interest owners in wells for which a Defendant acted as operator and remitted payments of proceeds on behalf of the non-operator working interest owners at any time prior to November 1, 2019.

    Releasing Parties” means DASA and all Settlement Class Members who do not timely and properly submit a Request for Exclusion from the Settlement Class, and who are not otherwise excluded from the Settlement Class by order of the Court, as well as the predecessors, successors, heirs, assignors, and assignees, as well as any past, present, and future officers, employees, general partners, members, managers, agents, consultants, servants, etc. of DASA and any and all such Settlement Class Members who do not timely and properly submit a Request for Exclusion from the settlement, and who are not otherwise excluded from the Settlement Class by order of the Court, without regard to whether a member of the Settlement Class actually received a payment from the Net Settlement Fund and without regard to whether any payment received was correctly determined. All members of the Settlement Class who do not timely and properly submit Requests for Exclusion and who are not otherwise excluded from the Settlement Class by order of the Court and their heirs, successors, and assigns will be enjoined by the Court in the Judgment from filing or prosecuting Released Claims.

  • To get out of the Settlement, you must exclude yourself from the Settlement Class. To exclude yourself from the Settlement Class, you must submit a written statement by certified mail, return receipt requested, to the United States District Court for the Eastern District of Oklahoma, Defendants’ Counsel, Plaintiff’s Counsel, and the Settlement Administrator. Your written statement must state that you want to be excluded from the Settlement Class in DASA Investments, Inc. v. EnerVest Operating, LLC et al. In addition to the other information specified in the rest of this answer, your statement must include your name, address, telephone number, and notarized signature, and must be received no later than March 6, 2020 at 5 p.m. CT.

    Your written statement must be sent to:

    The Court
     
    Clerk of the Court
    United States District Court for the Eastern District of Oklahoma
    101 North 5th. Street
    Muskogee, Oklahoma 74401

    The Settlement Administrator
     
    DASA-EnerVest-SM Energy Settlement
    c/o JND Class Action Administration, Settlement Administrator
    P.O. Box 91232
    Seattle, WA 98111-9332

    and

    Plaintiff's Counsel

    Patrick M. Ryan, OBA No. 7864
    Jason A. Ryan, OBA No. 18824
    Paula M. Jantzen, OBA No. 20464
    Ryan Whaley Coldiron Jantzen Peters & Webber PLLC
    400 N. Walnut Ave.
    Oklahoma City, OK 73104

    Michael Burrage, OBA No. 1350
    Whitten Burrage
    512 N. Broadway Ave, Suite 300
    Oklahoma City, OK 73102

    Defendants' Counsel

    Guy S. Lipe
    Vinson & Elkins LLP
    1001 Fannin Street, Suite 2500
    Houston, TX 77002-6760

    Jay P. Walters
    Gable Gotwals
    One Leadership Sq., 15th Floor
    211 N. Robinson
    Oklahoma City, OK 73102-7101

    J. Kevin Hayes
    Pamela S. Anderson
    Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.
    320 South Boston Avenue, Suite 200
    Tulsa, OK 74103

    To be effective, your written Request for Exclusion must be RECEIVED at the above addresses no later than March 6, 2020 at 5 p.m. CT. You cannot exclude yourself on the website, by telephone, facsimile, or by e-mail. The letter must be signed by you under oath and acknowledged by a Notary Public. In the letter, you must identify your interest in any wells for which you have received payments from Defendants or anyone making payments on Defendants’ behalf, including the name, well number, county in which the well is located, and the owner identification number. Any such letter also should state generally:

    Dear Judge, I want to exclude myself from the Settlement Class in DASA Investments, Inc. v. EnerVest Operating, LLC et al., Case No. 18-cv-0083-SPS, United States District Court for the Eastern District of Oklahoma. I understand it will be my responsibility to pursue any claims I may have, if I so desire, on my own and at my expense.

    If you do not follow these procedures—including meeting the date for exclusion set out above—you will not be excluded from the Settlement Class, and you will be bound by all of the orders and judgments entered by the Court regarding the Settlement, including the release of claims. You must exclude yourself even if you already have a pending case against any of the Released Parties based upon any Released Claims.

    If you validly request exclusion as described above, you will not receive a Distribution, you cannot object to the Settlement, and you will not have released any claim against the Released Parties. You will not be legally bound by anything that happens in the Litigation. You will also not participate in any distribution of the Net Settlement Fund. Do not request exclusion if you wish to participate in the Settlement.

  • No. Unless you exclude yourself from the Settlement Class in connection with the Litigation, you (and any other Releasing Parties) give up any right to sue any or all of the Released Parties for any Released Claims. If you have a pending lawsuit or arbitration against Defendants or any of their officers and/or directors or any other Released Parties, speak to the lawyer representing you in that case immediately. You must exclude yourself from this Settlement Class to continue your own lawsuit or arbitration against any of the Released Parties.

  • No. If you exclude yourself from the Settlement Class, you may be able to sue, continue to sue, or be part of a different lawsuit or arbitration against the Released Parties, but you will not receive any money from the Settlement discussed in this Notice.

  • The law firms of (a) Ryan Whaley PLLC and (b) Whitten Burrage represent the Plaintiff and all other Class Members in this Litigation. These lawyers are called Plaintiff’s Counsel. You will not be charged directly by these lawyers. If the Court authorizes it, these lawyers will be paid in accordance with the Answer to Question No. 17 below. If you want to be represented by your own lawyer, you may hire one at your own expense.

  • Plaintiff’s Counsel intends to seek an award of attorneys’ fees up to $3,200,000.00 to be paid out of the Gross Settlement Fund. Plaintiff’s Counsel has been litigating this case for approximately two years without any payment whatsoever. At the Final Fairness Hearing, Plaintiff’s Counsel will also seek reimbursement from the Gross Settlement Fund of the expenses incurred in connection with the prosecution of this Litigation, and which will be incurred through final distribution of the Settlement, which amount will not exceed $350,000.00. Plaintiff intends to seek Case Contribution Awards relating to its representation of the Settlement Class, taking into account Plaintiff’s time, effort, risk, and burden, up to $75,000.00.

  • If you are a Class Member and you do not exclude yourself, you can object to the Settlement if you do not like any part of it.  You can give reasons why you think the Court should not approve the Settlement, Allocation Methodology, Plan of Allocation, request for Plaintiff’s attorneys’ fees or reimbursement of Litigation Expenses, or Case Contribution Award to Plaintiff.  To object, you must send a written statement to the Court, Plaintiff’s Counsel, and Defendants’ Counsel saying that you object to the proposed Settlement.  You must include in your written statement:

    1. a heading referring to DASA Investments, Inc. v. EnerVest Operating, LLC et al., Case No. 18-cv-0083-SPS, United States District Court for the Eastern District of Oklahoma;
    2. a statement as to whether you intend to appear at the Final Fairness Hearing, either in person or through counsel, and, if through counsel, counsel must be identified by name, address and telephone number (this statement must also comply with the requirement stated in Answer to Question No. 22 below);
    3. a detailed statement of the specific legal and factual basis for each and every objection;
    4. a list of any witnesses you wish to call at the Final Fairness Hearing, together with a brief summary of each witness’s expected testimony (to the extent you desire to offer expert testimony and/or an expert report, any such evidence must fully comply with the Federal Rules of Civil Procedure, Federal Rules of Evidence, and the Local Rules of the Court);
    5. a list of and copies of any exhibits you may seek to use at the Final Fairness Hearing;
    6. a list of any legal authority you may present at the Final Fairness Hearing;
    7. your name, current address, current telephone number, and all owner identification numbers with Defendants;
    8. your signature executed before a Notary Public;
    9. identification of your interest in wells from which you have received payments made by or on behalf of Defendants (by well name, payee well number, and county in which the well is located) during the Claim Period and identification of such payments by date of payment, date of production, and amount; and
    10. if you are objecting to any portion of the Plaintiff’s attorneys’ fees or Litigation Expenses sought by Plaintiff’s Counsel on the basis that the amounts requested are unreasonably high, you must specifically state the portion of Plaintiff’s attorneys’ fees and/or Litigation Expenses you believe is fair and reasonable and the portion that is not.

    Your written objection must be filed with the Court and served on Plaintiff’s Counsel and Defendants’ Counsel by certified mail, return receipt requested, and received at the addresses below no later than 5:00 CT on March 6, 2020:

    By the above date and time, your written objection must be ON FILE with the Court:

    Clerk of the Court
    United States District Court for the Eastern District of Oklahoma
    101 North 5th Street
    Muskogee, Oklahoma 74401

    And, by the same date and time, copies of your written objection must be served and received by counsel at the addresses below:

    Plaintiff's Counsel

    Patrick M. Ryan, OBA No. 7864
    Jason A. Ryan, OBA No. 18824
    Paula M. Jantzen, OBA No. 20464
    Ryan Whaley Coldiron Jantzen Peters & Webber PLLC
    400 N. Walnut Ave.
    Oklahoma City, OK 73104

    Michael Burrage, OBA No. 1350
    Whitten Burrage
    512 N. Broadway Ave, Suite 300
    Oklahoma City, OK 73102

    Defendants' Counsel

    Guy S. Lipe
    Vinson & Elkins LLP
    1001 Fannin Street, Suite 2500
    Houston, TX 77002-6760

    Jay P. Walters
    Gable Gotwals
    One Leadership Sq., 15th Floor
    211 N. Robinson
    Oklahoma City, OK 73102-7101

    J. Kevin Hayes
    Pamela S. Anderson
    Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.
    320 South Boston Avenue, Suite 200
    Tulsa, OK 74103

    OTHERWISE ORDERED BY THE COURT, ANY SETTLEMENT CLASS MEMBER WHO DOES NOT OBJECT IN THE MANNER DESCRIBED HEREIN WILL BE DEEMED TO HAVE WAIVED ANY OBJECTION AND SHALL BE FOREVER FORECLOSED FROM MAKING ANY OBJECTION TO THE PROPOSED SETTLEMENT AND THE APPLICATION FOR ATTORNEYS’ FEES AND LITIGATION EXPENSES AND CASE CONTRIBUTION AWARD AND WILL NOT BE ALLOWED TO PRESENT ANY OBJECTIONS AT THE FINAL FAIRNESS HEARING.

  • Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if you are a Class Member. Excluding yourself is telling the Court that you do not want to be part of the Settlement Class. If you exclude yourself from the Settlement Class, you have no basis to object, because the Settlement no longer affects you. If you do not exclude yourself from the Settlement Class, you will remain a member of the Settlement Class and will be bound by the terms of the Settlement Agreement (including the release contained therein) and all orders and judgments entered by the Court regarding the Settlement regardless of whether the Court accepts or denies your objection.

  • The Court will hold a Final Fairness Hearing on March 23, 2020, at 2:00 p.m. CDT, at the United States District Court for the Eastern District of Oklahoma, 101 North 5th Street, Muskogee, Oklahoma 74401. Please note that the date of the Final Fairness Hearing is subject to change without further notice. If you plan to attend the hearing, you should check with the Court on this website to be sure no change to the date and time of the hearing has been made. At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them at that time. After the Final Fairness Hearing, the Court will decide whether to approve the Settlement, the Allocation Methodology, and the Plan of Allocation. The Court will also rule on the request for attorneys’ fees and litigation expenses by Plaintiff’s Counsel and the request for Case Contribution Award for Plaintiff relating to its representation of the Settlement Class. We do not know how long it will take the Court to make these decisions.

  • No. Plaintiff’s Counsel will answer any questions the Court might have for the Settlement Class. But you are welcome to come at your own expense. If you timely and properly file and serve an objection (see Answer to Question No. 18 above), you do not have to come to Court to talk about it. As long as you properly file and serve your written objection on time, it will be before the Court when the Court considers whether to approve the Settlement as fair, reasonable, and adequate. You also may pay your own lawyer to attend the Final Fairness Hearing, but attendance is not necessary. However, if you fail to timely and properly file and serve an objection, you will not be entitled to be heard at the Final Fairness Hearing regarding any objections.

  • If you are a Class Member who has not requested to be excluded from the Settlement Class, you may ask the Court for permission to speak at the Final Fairness Hearing. To do so, you must send a letter or other paper called a “Notice of Intention to Appear at Fairness Hearing in DASA Investments, Inc. v. EnerVest Operating, LLC et al.” Be sure to include your name, address, telephone number, and signature. Your Notice of Intention to Appear must be received by the counsel listed in Answer to Question No. 18 and must be filed with the Clerk of the Court at the addresses in the Answer to Question No. 18 no later than March 6, 2020 at 5 p.m. CT. You cannot speak at the Final Fairness Hearing if you exclude yourself from the Settlement Class.

    If you object to the Settlement or any part thereof and you or your attorney wish to be heard at the Final Fairness Hearing, you must file a Notice of Intention to Appear as outlined above by the date specified for objections in the Answer to Question No. 18 in order to present your objection at the Hearing (see also Answer to Question No. 18 above).

  • If you do nothing and you are a Class Member, you will receive payment in connection with the Settlement as explained in response to Question No. 9 above if you are entitled to a distribution pursuant to the Allocation Methodology and Plan of Allocation, and you will be bound by the Settlement. Unless you exclude yourself from the Settlement Class, neither you nor any other Releasing Party will be able to start a lawsuit or arbitration, continue a lawsuit or arbitration, or be part of any other lawsuit or arbitration against any of the Released Parties based on any Released Claims.

  • The Notice summarizes the Settlement. The complete terms of the Settlement are set out in the Settlement Agreement and the documents referenced therein and attached thereto. You may obtain a copy of the Settlement Agreement, as well as other documents, from the Important Documents page of this website or you may request copies by writing to DASA-EnerVest-SM Energy Settlement, c/o JND Class Action Administration, Settlement Administrator, P.O. Box 91232, Seattle, WA 98111-9332. If you elect to obtain copies from a source other than the free website, there may be a charge to you for copying and mailing such documents. The Settlement Agreement also is filed in DASA Investments, Inc. v. EnerVest Operating, LLC et al., Case No. 18-cv-0083, United States District Court for the Eastern District of Oklahoma, 101 North 5th Street, Muskogee, Oklahoma 74401, and may be obtained from the Clerk’s office directly. Further information regarding the Litigation and this Notice may be obtained by contacting Plaintiff’s Counsel at the address provided in the Answer to Question No. 18 above.

  • If you have reviewed the information available on this website but still have questions, you can contact the Settlement Administrator via the Contact Us page.

For More Information

Visit this website often to get the most up-to-date information.

Mail

DASA-EnerVest-SM Energy Settlement
c/o JND Class Action Administration, Settlement Administrator
P.O. Box 91232
Seattle, WA 98111-9332