McClintock v. Continuum Producer Services, L.L.C.

Filing 65

ORDER AND JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT by Judge John A. Gibney, Jr. ADOPTING 60 Report and Recommendation(Re: 53 Motion for Final Approval); dismissing/terminating case (case terminated) (tls, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
PAULA PARKS MCCLINTOCK,
Plaintiff,
v.
CONTINUUM PRODUCER
SERVICES, L.L.C.,
Defendant.

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Case No. 6:17-cv-00259-JAG

ORDER AND JUDGMENT GRANTING FINAL APPROVAL
OF CLASS ACTION SETTLEMENT
This is a putative class action lawsuit brought by Class Representative, Paula Parks

Continu
alleged failure to pay statutory interest on payments made outside the time periods set forth in
the Production Revenue Standards Act, 52 Okla. St. §570.1, et seq

for oil and gas

production proceeds from oil and gas wells in Oklahoma. On August 20, 2019, Plaintiff and

and Supplemental Agreements, finalizing the terms of the Settlement. 1
On November 22, 2019, the Court preliminarily approved the Settlement and issued an
Order Granting Preliminary Approval of Class Action Settlement, Certifying the Class for
Settlement Purposes, Approving Form and Manner of Notice, and Setting Date for Final Fairness
Hearing (Dkt. No. 42)

e Preliminary Approval Order,

the Court, inter alia:
1

Capitalized terms not otherwise defined in this Order shall have the meaning ascribed to them
in the Settlement Agreement.

1

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a.

certified the Settlement Class for settlement purposes, finding all

requirements of Federal Rule of Civil Procedure 23 have been satisfied, for settlement
purposes only, with respect to the proposed Settlement Class;
b.

appointed Plaintiff, Paula Parks McClintock, as Class Representative and

Whitten Burrage and Lawrence R. Murphy, Jr., P.C. as liaison local counsel for the
Settlement Class;
c.

preliminarily found: (i) the proposed Settlement resulted from extensive

-length negotiations; (ii) the proposed Settlement was agreed to only after Class
Counsel had conducted legal research and discovery regarding the strengths and

Representative and Class Counsel have concluded that the proposed Settlement is fair,
reasonable, and adequate; and (iv) the proposed Settlement is sufficiently fair, reasonable,
and adequate to warrant sending notice of the proposed Settlement to the Settlement
Class;
d.

preliminarily approved the Settlement as fair, reasonable, and adequate

and in the best interest of the Settlement Class;
e.

preliminarily approved the form and manner of the proposed Short Form

Notice, Long Form Notice, and Summary Notice to be communicated to the Settlement
Class, finding specifically that such Short Form Notice, Long Form Notice, and
Summary Notice, among other information, fairly and adequately: (a) described the terms
and effect of the Settlement among other information; (b) notified the Settlement Class of

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the time and place of the Final Fairness Hearing; (c) described the options for requesting
exclusion from the Settlement or objecting to the Settlement or any part thereof; and (d)
directed potential Class Members to where they may obtain more detailed information
about the Settlement;
f.

instructed the Settlement Administrator to disseminate the approved Short

Form Notice by mail to potential members of the Settlement Class, to publish the
Summary Notice, and to display the Long Form Notice and other documents related to
the Settlement on an Internet website in accordance with the Settlement Agreement and
in the manner approved by the Court;
g.

provided for the appointment of a Settlement Administrator;

h.

set the date and time for the Final Fairness Hearing as February 12, 2020

at 9:00 A.M. in the United States District Court for the Eastern District of Oklahoma; and
i.

set out the procedures and deadlines by which Class Members could

properly request exclusion from the Settlement Class or object to the Settlement or any
part thereof.
After the Court issued the Preliminary Approval Order, due and adequate notice by
means of the Short Form Notice, Summary Notice, and Long Form Notice was given to the
Settlement Class, notifying them of the Settlement and the upcoming Final Fairness Hearing. On
January 17, 2020, the Court issued an Order referring the motions to the Honorable Kimberly E.
West, United States Magistrate Judge, to preside over the Final Fairness Hearing and for a report
and recommendation.

On February 12, 2020, in accordance with the Preliminary Approval

Order, the Notices,

Magistrate Judge West conducted a Final

Fairness Hearing to, inter alia:

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a.

determine whether the Settlement should be approved by the Court as

fair, reasonable, and adequate and in the best interests of the Settlement Class;
b.

determine whether the notice method utilized by the Settlement

Administrator: (i) constituted the best practicable notice under the circumstances;
(ii) constituted notice reasonably calculated under the circumstances to apprise Class
Members of the pendency of the Litigation, the Settlement, their right to exclude
themselves from the Settlement, their right to object to the Settlement or any part thereof,
and their right to appear at the Final Fairness Hearing; (iii) was reasonable and
constituted due, adequate, and sufficient notice to all persons and entities entitled to such
notice; and (iv) meets all applicable requirements of the Federal Rules of Civil Procedure,
the state and federal Constitutions, and any other applicable law;
c.

determine whether to approve the Allocation Methodology, the Initial Plan

of Allocation, and distribution of the Net Settlement Fund to Participating Class
Members;2
d.

determine whether a Judgment should be entered pursuant to the

Settlement Agreement, inter alia, dismissing the Litigation against Defendant with
prejudice and extinguishing, releasing, and barring all Released Claims against all
Released Parties in accordance with the Settlement Agreement;
e.
reimbursement for Litigation Expenses, and Case Contribution Award to Class
Representative are fair and reasonable and should be approved; 3 and

2

The Court will issue a separate order pertaining to the allocation and distribution of the Net
Settlement Proceeds among Class M
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f.

rule on such other matters as the Court deems appropriate.

Following the Final Fairness Hearing, Magistrate Judge West entered a Report and
Recommendation, recommending that final approval of the Settlement be granted and finding

The Court, having reviewed the Settlement, the Settlement Agreement, and all related
pleadings and filings, and having received the Report and Recommendation of Judge West who
heard the evidence and argument presented at the Final Fairness Hearing, now accepts the
recommendation of Judge West to enter this Order and Judgment Granting Final Approval and
FINDS, ORDERS, and ADJUDGES as follows:
1.
defined terms as set forth in the Settlement Agreement and incorporates them as if fully set forth
herein.
2.

The Court has jurisdiction over the subject matter of this Litigation and all matters

relating to the Settlement, as well as personal jurisdiction over Defendant and Class Members.
3.

The Settlement Class, which was

Order, is defined as:
All non-excluded persons or entities who received payments for proceeds for the
in the State of Oklahoma more than two (2) months after the end of the month
within which the production was sold and whose payments did not include the full
amount of the interest owed thereon.
The persons or entities excluded from the Settlement Class are: (1) agencies,
departments, or instrumentalities of the United States of America or the State of
Oklahoma; (2) publicly traded oil and gas companies and their affiliates; (3)
under rule 1.7 of the Oklahoma Rules of Professional Conduct, including but not
3

Contribution Award.
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limited to Charles David Nutley, Danny George, Dan McClure, Kelly McClure
Callant, and their relatives and any related trusts; and (4) officers of the court.
The Court finds that the above-defined Settlement Class has been properly certified for the
purposes of this Settlement. The Court finds that the persons and entities identified in the
attached Exhibit 1 have submitted timely and valid Requests for Exclusion and are hereby
excluded from the foregoing Settlement Class, will not participate in or be bound by the
Settlement, or any part thereof, as set forth in the Settlement Agreement, and will not be bound
by or subject to the releases provided for in this Judgment and the Settlement Agreement.
4.

As used in this Judgment, the following terms shall have the following meanings:

a.
Released Claims include all claims that the Releasing Parties may have
against the Released Parties related to or arising from payments of proceeds from the sale
of oil or gas to Class Members or any of their predecessors, successors, or assigns, during
the Claim Period, by Defendant (or by any person or entity making payments on
include the proper amount of interest under the Production Revenue Standards Act, 52
O.S. §570.1, et seq. (t
demand, right, debt, request for payment, cause of action, liability, loss, damage
(including without limitation incidental, consequential, exemplary, or punitive damages),
deficiency, remedy, judgment, lien, penalty, cost, expense, attorney fee, interest, suit, or
proceeding of every kind, at law or in equity, regardless of whether any of the foregoing
are asserted or unasserted, now known or hereinafter discovered, matured or unmatured,
or accrued, contingent, or potential, and regardless of whether any of the foregoing have
resulted now or could result in the future in the commencement of a lawsuit, filing of a
claim, or a legal proceeding of whatsoever kind, and regardless of whether any of the
foregoing have resulted now or could result in the future in a final and appealable order,
ruling, or judgment. The Released Claims include without limitation all claims asserted,
made, alleged, or described in the Petition, as well as any claims for any alternative legal
theories that relate to such late, untimely, or delayed payments or interest by Defendant
(or on its behalf) of oil and gas production proceeds. The Released Claims expressly do
not include any claims other than those related to such late, untimely, or delayed
payments or interest by Defendant (or on its behalf) and do not include claims for
underpayment of royalty that are not based on late, untimely, or delayed payments or the
improper amount of interest thereon.
b.
Unimark L.L.C.); its parents and affiliates; each of their respective predecessors,
members, managers, owners, employees, officers, directors, stockholders, partners,
agents, consultants, servants, attorneys, insurers, subsidiaries, assignors, and other
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assigns.
c.
means Plaintiff and the Class Members, and each of
their respective parents, affiliates, predecessors, members, managers, owners, employees,
officers, directors, stockholders, partners, agents, consultants, servants, attorneys,
insurers, subsidiaries, assignors, and other representatives, and all of the foregoing
d.
Judgment in this Litigation.
5.

means the period of time prior to the entry of the

At the Final Fairness Hearing on February 12, 2020, the Court fulfilled its duties

to independently evaluate the fairness, reasonableness, and adequacy of, inter alia, the
Settlement and the Notice of Settlement provided to the Settlement Class, considering not only
the pleadings and arguments of Class Representative and Defendant and their respective counsel,
but also the concerns of any objectors and the interests of all absent Class Members. In so doing,
the Court considered arguments that could reasonably be made against, inter alia, approving the
Settlement and the Notice of Settlement, even if such argument was not actually presented to the
Court by pleading or oral argument.
6.

The Court further finds that due and proper notice, by means of the Short Form

Notice, Long Form Notice, and Summary Notice, was given to the Settlement Class in
conformity with the Settlement Agreement and Preliminary Approval Order. The form, content,
and method of communicating the Short Notice mailed to the Settlement Class, the Long Form
Notice published on the website, and the Summary Notice published pursuant to the Settlement
Agreement and the Preliminary Approval Order: (a) constituted the best practicable notice under
the circumstances; (b) constituted notice reasonably calculated, under the circumstances, to
apprise Class Members of the pendency of the Litigation, the Settlement, their right to exclude
themselves from the Settlement, their right to object to the Settlement or any part thereof, and

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their right to appear at the Final Fairness Hearing; (c) was reasonable and constituted due,
adequate, and sufficient notice to all persons and entities entitled to such notice; and (d) met all
applicable requirements of the Federal Rules of Civil Procedure, the Due Process Clause of the
United States Constitution, the Due Process protections of the State of Oklahoma, and any other
applicable law. Therefore, the Court approves the form, manner, and content of the Short
Notice, Long Form Notice, and Summary Notice used by the Parties. The Court further finds that
all Class Members have been afforded a reasonable opportunity to request exclusion from the
Settlement Class or object to the Litigation and Settlement.
7.

The Court hereby affirms its determinations in the Preliminary Approval Order

certifying, for the purposes of the Settlement only, the Litigation as a class action pursuant to
Rule 23 of the Federal Rules of Civil Procedure, including that: the members of the Settlement
Class are so numerous that joinder of all Class Members in the class action is impracticable;
there are questions of law and fact common to the Settlement Class that predominate over any
individual questions; the claims of Class Representative are typical of the claims of the
Settlement Class; Class Representative and Plaint
represented and protected the interests of the Class Members; and, after considering the interests
of the Class Members in individually controlling the prosecution of separate actions, the extent
and nature of litigation already commenced by members of the Settlement Class, the desirability
or undesirability of continuing the litigation of these claims in this forum, and the difficulties
likely to be encountered in the management of a class action

a class action is superior to other

available methods for the fair and efficient adjudication of the controversy. Pursuant to and in
accordance with Federal Rule of Civil Procedure 23, the Settlement, including, without
limitation, the consideration paid by Defendant, the covenants not to sue, the releases, and the

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dismissal with prejudice of the Released Claims against the Released Parties as set forth in the
Settlement Agreement, is finally approved as fair, reasonable and adequate and in the best
interests of the Settlement Class. The Settlement Agreement was entered into between the Parties
-length and in good faith after substantial negotiations free of collusion. The Settlement
fairly reflects the complexity of the claims, the duration of the Litigation, the extent of discovery,
and the balance between the benefits the Settlement provides to the Settlement Class and the risk,
cost, and uncertainty associated with further litigation and trial. Serious questions of law and fact
remain contested between experienced counsel and parties alert to defend their interests. The
Settlement provides a means of gaining immediate valuable and reasonable compensation and
forecloses the prospect of uncertain results after many more months or years of additional
discovery and litigation. The considered judgment of the Parties, aided by experienced legal
counsel, supports the Settlement. The Parties and the Settlement Administrator are hereby
authorized and directed to comply with and to cause the consummation of the Settlement in
accordance with the Settlement Agreement, and the Clerk of this Court is directed to enter and
docket this Judgment in the Litigation.
8.

By agreeing to settle the Litigation, Defendant does not admit, and instead

specifically denies, that the Litigation could have otherwise been properly maintained as a
contested class action (as opposed to a settlement class), and specifically denies any and all

9.

The Court finds that on August 29, 2019, Defendant caused notice of the

Settlement to be served on the appropriate state official for each state in which a Class Member
resides, and the appropriate federal official, as required by and in conformance with the form and
content requirements of 28 U.S.C. § 1715. See Dkt. No. 40. In connection therewith, the Court

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has determined that, under 28 U.S.C. § 1715, the appropriate state official for each state in which
a Class Member resides was and is the State Attorney General for each such state, and the
appropriate federal official was and is the Attorney General of the United States. Further, the
Court finds it was not feasible for Defendant to include on each such notice the names of each of
the Class Members who reside in each state and the estimated proportionate share of each such
Class Members to the entire Settlement as provided in 28 U.S.C. § 1715(b)(7)(A); therefore,
each notice included a reasonable estimate of the number of Class Members residing in each
state and the estimated proportionate share of the claims of such Class Members to the
Settlement. No appropriate state or federal official has entered an appearance or filed an
objection to the entry of final approval of the Settlement. Thus, the Court finds that all
requirements of 28 U.S.C. § 1715 have been met and complied with and, as a consequence, no
Class Member may refuse to comply with or choose not to be bound by the Settlement and this
the provisions of 28 U.S.C.
§ 1715.
10.

The Litigation and the Petition and all claims included therein, as well as all

Released Claims, are dismissed with prejudice as to the Released Parties. The Court orders that,
upon the Effective Date, the Settlement Agreement shall be the exclusive remedy for any and all
Released Claims of Participating Class Members. The Court finds that Defendant has agreed not

sel in bad faith or without a reasonable basis.
Similarly, the Court finds that Plaintiff has agreed not to file a claim against Defendant or

n bad faith or without a reasonable basis. The Releasing Parties are hereby

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deemed to have finally, fully, and forever conclusively released, relinquished, and discharged all
of the Released Claims against the Released Parties to the fullest extent permitted by law. The
Court thus hereby permanently bars and enjoins the Releasing Parties, and each of them
(regardless of whether or not any such person or party shares in the Net Settlement Fund), and all
persons acting on their behalf from, directly or indirectly, or through others, suing, instigating,
instituting, or asserting against the Released Parties any claims or actions on or concerning the
Released Claims. The Released Parties are discharged and/or released from all claims for
contribution that have been or may be brought by or on behalf of any persons relating to the
Settlement of the Released Claims. The releases and prohibitions of this paragraph apply equally
to any claim that relates to the subject matter of the Released Claims except as expressly

have the effect of barring each of the Releasing Parties from asserting any claim from which that
party would be barred by a judgment resolving the certified claims herein had such claims been

costs of court, or

The Court orders that Defendant shall be allowed to a refund of

the Residual Unclaimed Funds pursuant to the procedures and at the time specified in the
Settlement Agreement.
11.

The Court also approves the efforts and activities of the Settlement Administrator,

JND Legal Administration, in assisting with certain aspects of the administration of the
Settlement, and directs them to continue to assist Class Representative in completing the
administration and distribution of the Settlement in accordance with the Settlement Agreement,
this Judgment, any Plan of Allocation approved by the Court,

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12.

Nothing in this Judgment shall bar any action or claim by Class Representative or

Defendant to enforce or effectuate the terms of the Settlement Agreement or this Judgment.
13.

If it has not already occurred, the Settlement Administrator is directed to refund to

Defendant the amount attributable to Opt-Outs in accordance with paragraph 6.6 of the
Settlement Agreement, if applicable.
14.

This Judgment, the Settlement, the Supplemental Agreements, and the Settlement

Agreement

including any provisions contained in or exhibits attached to the Settlement

Agreement; any negotiations, statements, or proceedings in connection therewith; or any action
undertaken pursuant thereto

shall not be used for any purpose or admissible in any action or

proceeding for any reason, other than an action to enforce the terms of this Judgment, the
Supplemental Agreements, or the Settlement (including, but not limited to, defending or bringing
an action based on the release provided for herein). The Judgment, the Settlement, the
Supplemental Agreements, and the Settlement Agreement are not and shall not be deemed,
described, or construed to be or offered or received as evidence of a presumption, concession,
declaration, or admission by any person or entity of the truth of any allegation made in the
Litigation; the validity or invalidity of any claim or defense that was, could have been, or might
be asserted in the Litigation; the amount of damages, if any, that would have been recoverable in
the Litigation; any liability, negligence, fault, or wrongdoing of any person or entity in the
Litigation; or whether any other lawsuit should be certified as a class action pursuant to Federal
Rule of Civil Procedure 23 or any applicable state rule of procedure.
15.
Allocation Methodology, the Plan of Allocation, and distribution of the Net Settlement Fund
among Participating Class Members are approved as fair, reasonable and adequate, and Class

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Counsel and the Settlement Administrator are directed to administer the Settlement in
accordance with the Plan of Allocation Order(s) entered by the Court.
16.

The Court finds that Class Representative, Defendant, and their Counsel have

complied with the requirements of the Federal Rules of Civil Procedure as to all proceedings and

Counsel adequately represented the Settlement Class in entering into and implementing the
Settlement.
17.

or its administration, including but not limiting to any distributions made by the Settlement
Administrator. Except as described in paragraph 6.20 of the Settlement Agreement, no Class
ny of
their respective designees or agents based on the distributions made substantially in accordance

Court.
18.

Any Class Member who receives a Distribution Check that he/she/it is not legally

entitled to receive is hereby ordered to either: (a) pay the appropriate portion(s) of the
Distribution Check to the person(s) legally entitled to receive such portion(s), or (b) return the
Distribution Check uncashed to the Settlement Administrator.
19.

All matters regarding the administration of the Settlement Account and the

taxation of funds in the Settlement Account or distributed from the Settlement Account shall be
handled in accordance with Section 5 of the Settlement Agreement.

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20.

Any order approving or modifying any Plan of Allocation Order, the application

Expenses, or the request of Class Representative for a Case Contribution Award, shall be
handled in accordance with the Settlement Agreement and the documents referenced therein (to
the extent the Settlement Agreement and documents referenced therein address such an order).
21.

d the Settlement Class will only be liable for loss

of any portion of the Settlement Account as described in paragraph 6.20 of the Settlement
Agreement. Defendant shall have no liability for any such loss.
22.

Without affecting the finality of this Judgment in any way, the Court (along with

reserves exclusive and continuing jurisdiction over the Litigation, Class Representative, the
Settlement Class, Defendant, and the other Released Parties for the purposes of: (a) supervising
and/or determining the fairness and reasonableness of the implementation, enforcement,
construction, and interpretation of the Settlement, the Settlement Agreement, any Plan of
Allocation Order entered by the Court, and this Judgment; (b) hearing and determining any

Expenses and/or a Case Contribution Award for Class Representative, if such determinations
were not made at the Final Fairness Hearing; (c) supervising the distribution of funds from the
Settlement Account; (d)
Settlement pursuant to the Settlement Agreement or Supplemental Agreement 1; (e) enforcing
the terms of the Settlement, including the entry of injunctive or other relief to enforce,
implement, administer, construe and interpret the Settlement Agreement and Supplemental

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Agreements; and (f) exercising jurisdiction over any challenge to the Settlement on any basis
whatsoever.
23.

In the event the Settlement is terminated as the result of a successful appeal of this

Judgment or does not become Final and Non-Appealable in accordance with the terms of the
Settlement Agreement for any reason whatsoever, then this Judgment and all orders previously
entered in connection with the Settlement shall be rendered null and void and shall be vacated to
the extent provided by and in accordance with the Settlement Agreement. The provisions of the
Settlement Agreement and Supplemental Agreements relating to termination of the Settlement
Agreement shall be complied with, including the refund of amounts in the Settlement Account to
Account of any amounts
previously paid to them from the Settlement Account.
24.

The claims asserted by Class Representative in this Litigation and all Released

Claims of the Participating Class Members are hereby DISMISSED WITH PREJUDICE to the
refiling of the same or any portion thereof by or against the Released Parties. The Court retains
jurisdiction pursuant to paragraph 22 above to administer the Settlement distribution process as
administer other aspects of
the Settlement as described in the Settlement Agreement, and to issue additional orders
pertaining to, inter alia
reimbursement of reasonable Litigation Expenses and C

Litigation, this Judgment fully disposes of all claims as to Defendant and is therefore a final
appealable judgment. Regardless, there is no just reason to delay the finality of the Judgment.

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The Court further hereby expressly directs the Clerk of the Court to file this Judgment as a final
order and final judgment in this Litigation.
IT IS SO ORDERED.
Dated this

day of June, 2020.

__________________________________
JOHN A. GIBNEY, JR.
UNITED STATES DISTRICT JUDGE

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