FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS                July 9, 2013
                                                                Elisabeth A. Shumaker
                                     TENTH CIRCUIT                  Clerk of Court



 CHIEFTAIN ROYALTY COMPANY,

           Plaintiff - Appellee,

 v.                                                     No. 12-7047
                                               (D.C. No. 6:11-CV-00029-FHS)
 XTO ENERGY, INC.,                                      (E.D. Okla.)

           Defendant - Appellant.

 ------------------------------

 OKLAHOMA INDEPENDENT
 PETROLEUM ASSOCIATION; LINN
 OPERATING, INC.;
 MID-CONTINENT OIL & GAS
 ASSOCIATION OF OKLAHOMA,

           Amici Curiae.


                                  ORDER AND JUDGMENT *


Before KELLY, McKAY, and MATHESON, Circuit Judges.


       Defendant-Appellant XTO Energy, Inc. (XTO) appeals from the district

court’s order certifying a class of Oklahoma royalty owners, represented by



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Chieftain Royalty Company (Chieftain). The class includes over 16,000 royalty

owners, approximately 14,300 leases, and roughly 2,300 wells. Chieftain’s

underlying claim is that XTO has underpaid royalties in violation of Oklahoma

law by improperly deducting costs incurred to place gas in marketable condition.

The district court certified the class under Federal Rule of Civil Procedure

23(b)(3). Exercising our jurisdiction under 28 U.S.C. § 1292(e) and Fed. R. Civ.

P. 23(f), we vacate the district court’s certification order and remand for further

proceedings consistent with this opinion, as well as our opinion in the companion

case, Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., ---F.3d--

--, No. 12-3176 (10th Cir. July __ 2013).



                                    Background

      Chieftain represents a class comprising “[a]ll non-excluded persons or

entities who are or were royalty owners in Oklahoma wells since July 1, 2002,

where XTO . . . is or was the operator (or, as a non-operator, XTO separately

marketed gas).” Chieftain Royalty Co. v. XTO Energy, Inc., No. CIV-11-29-

FHS, 

, at *2 (E.D. Okla. Apr. 12, 2012). 1 The class claims



      1
         The class includes a number of claims related to Oklahoma wells that
were severed from the Roderick action in the District of Kansas and subsequently
transferred to—and consolidated with—the present case. See Chieftain Royalty
Co. v. XTO Energy, Inc., No. CIV-11-29-FHS, 

, at *2 n.2 (E.D.
Okla. Apr. 12, 2012).

                                        -2-
“relate only to payment for gas and its constituents (helium, residue gas, natural

gas liquids, nitrogen and condensate) produced from the wells.” Id.

         At present, the class includes more than 16,000 royalty owners who have

approximately 14,300 leases covering some 2,296 wells. Id.; see also I App. 619.

The district court found that “Chieftain is a royalty owner in numerous XTO wells

located in Oklahoma,” and “has a direct lessor-lessee relationship with XTO in at

least two of the XTO wells.” Chieftain, 

, at *2.

         On behalf of the class, Chieftain asserts several theories of recovery against

XTO: (1) breach of contract, (2) tortious breach of contract, (3) breach of

fiduciary duty, (4) fraud, (5) conversion, (6) conspiracy, (7) accounting, and (8)

injunctive relief. I App. 14–18. According to the district court, “Chieftain’s

underlying claim as to all theories of recovery is that XTO has underpaid royalties

. . . by improperly deducting costs . . . incurred to transform the wellhead gas into

a marketable condition.” Chieftain, 

, at *2.

         Under Oklahoma law, lessees have an implied duty of marketability (IDM).

Wood v. TXO Prod. Corp., 

, 882–83 (Okla. 1992). Absent lease

language negating the IDM or permitting certain deductions, the lessee must bear

the full cost of services undertaken to place gas in marketable condition, such as

gathering, compression, dehydration, treatment, and processing (“GCDTP”

services). Mittelstaedt v. Santa Fe Minerals, Inc., 

, 1208 (Okla.

1998).

                                           -3-
      Chieftain argues that none of the gas from XTO’s wells is in marketable

condition at the well. I App. 816. According to Chieftain, gas is not placed in

marketable condition until raw gas and its constituent parts are made into: (1)

residue gas of pipeline quality; and (2) natural gas liquids (NGLs) of commercial

quality. Id. at 816. Chieftain claims XTO does not itself place gas into

marketable condition, but instead hires various “mid-stream” companies who

perform the necessary GCDTP services to make gas marketable. I App. 817.

According to Chieftain, “the net result, just like a cash payment, is an effective

deduction to the royalty owners for [GCDTP services].” Aplee. Br. 9 (quotation

omitted). Essentially, Chieftain contends that royalty owners “should be paid the

gross product value, not the net value after subtraction of the service fees.” I

App. 818.

      The district court found that “XTO employs a uniform royalty payment

methodology which does not take into account individual lease language,” but

noted that “[a] possible exception to this uniform treatment exists.” Chieftain,

, at *4 & n.3. Specifically, the court acknowledged “data

suggest[ing] that a different payment methodology was used” for at least one of

the sample wells. Id. at *4 n.3. Ultimately, however, the court decided “the

uncertainty of the royalty payment methodology . . . d[id] not prevent

certification in light of the substantial evidence of a uniform policy on the

remaining wells.” Id.

                                         -4-
      As in Roderick, XTO raises two key objections to certification. First, XTO

claims each lease must be examined individually to determine whether the IDM

has been negated. Here, XTO sampled 732 leases, categorizing those leases by

royalty type. I App. 618–72. Based on its sample, XTO identified “86 different

royalty clauses,” many of which “expressly allow XTO to deduct the costs it

incurs.” Aplt. Br. 12. Thus, XTO argues, a lease-by-lease inquiry is necessary.

      Second, XTO claims that the point of “marketability” varies from well to

well because “[t]he composition of gas extracted from wells depends on the type,

depth, and location of the underground deposit and the geology of the area.”

Aplt. Br. 15 (quotation omitted). According to XTO, this variation is particularly

significant because some gas may be in marketable condition at the well. See I

App. 592 (citing Mittelstaedt, 954 P.2d at 1207). However, the district court

appears to have concluded that no gas is in marketable condition at the well: “The

raw gas at the wellhead . . . . requires conditioning to eliminate or reduce the

contaminants to acceptable limits to make th[e] gas marketable.” Chieftain, 2012

Wl 1231837, at *1 (citing expert affidavit of Daniel T. Reineke).

      After holding a hearing and considering the parties’ respective briefs, the

district court certified the proposed class of Oklahoma royalty owners under Rule

23(b)(3). See Chieftain, 

, at *1. XTO timely filed a petition

for permission to appeal, which we granted. XTO Energy, Inc. v. Chieftain

Royalty Co., No. 12-708 (10th Cir. June 26, 2012). XTO argues on appeal, as in

                                         -5-
Roderick, that the district court abused its discretion by finding the proposed

class satisfied Rule 23(a)’s commonality, typicality, and adequacy requirements,

as well as Rule 23(b)(3)’s predominance requirement.



                                     Discussion

      Because we discussed at length the applicable law governing class

certification in Roderick, we need not repeat that general discussion here. We

review the standard employed by the district court de novo and the application of

that standard for an abuse of discretion. Vallerio v. Vandehey, 

,

1264 (10th Cir. 2009). By definition, a material misapplication of the Rule 23

factors constitutes an abuse of discretion. See id.

      I.     Rule 23(a)

      Here, the district court found Rule 23(a)’s commonality requirement was

satisfied because “the underlying basis for all claims is the assertion that XTO has

made improper deductions to transform wellhead gas into a marketable condition

for sale.” Chieftain, 

, at *5. The district court further found

that “all putative class members possess the same interest and suffer the same

injury, arising from [the] general issue of the application of the implied duty of

marketability and XTO’s uniform royalty payment methodology.” Id. (quotation

and citation omitted). The district court erred by relaxing Chieftain’s “strict

burden of proof,” Tabor v. Hilti, Inc., 

, 1228 (10th Cir. 2013)

                                         -6-
(quotation omitted), and forgoing the rigorous analysis that Rule 23 requires,

see Wal-Mart Stores, Inc. v. Dukes, 

, 2551 (2011).

      As we emphasized in Roderick, “the mere raising of a common question

does not automatically satisfy Rule 23(a)’s commonality requirement.” ---F.3d at

----. Instead, the common contention “must be of such a nature that it is capable

of classwide resolution—which means that determination of its truth or falsity

will resolve an issue that is central to the validity of each one of the claims in one

stroke.” Wal-Mart, 131 S. Ct. at 2551; see id. (“What matters to class

certification . . . [is] the capacity of a classwide proceeding to generate common

answers apt to drive the resolution of the litigation.” (quotation omitted)).

      First, the district court did not examine whether lease language variations

destroy the possibility of resolving the common question on a classwide basis.

Specifically, the legal validity of XTO’s uniform payment methodology might

differ greatly among class members if certain leases negate or abrogate the IDM. 2

Indeed, the district court acknowledged the significance of lease language

variations when it stated that “the express terms of the various leases will

necessarily have to be evaluated . . . to determine whether the [IDM] has been

abrogated.” Chieftain, 

, at *5. However, the district court



      2
       Moreover, the district court acknowledged that XTO’s payment
methodology might not be uniform as to all class members. See Chieftain, 

, at *4 n.3.

                                         -7-
decided the issue was “capable of resolution at the summary judgment stage of

this litigation.” Id.

       To be sure, the legal effect of lease language is a merits question that is

likely “capable of resolution at the summary judgment stage.” However, it is also

an issue that bears directly on Rule 23’s criteria. As the Supreme Court has

emphasized, “[e]valuation of many of the questions entering into determination of

class action questions is intimately involved with the merits of the claims.”

Coopers & Lybrand v. Livesay, 

, 469 n.12 (quotation omitted).

Therefore, the district court must address the lease language issue as it relates to

Rule 23 before certifying the class. See Comcast Corp. v. Behrend, 

, 1432 (2013) (citing Wal-Mart, 131 S. Ct. at 2551–52) ; see also Fed R. Civ.

P. 23 advisory committee notes, 2003 Amendments (explaining that Rule

23(c)(1)(C)’s provision for conditional class certification was deleted because

“[a] court that is not satisfied that the requirements of Rule 23 have been met

should refuse certification”).

       XTO’s sampling reflects only a fraction of the class’s leases. From what

we understand, approximately 13,568 leases have yet to be examined by

XTO—let alone by Chieftain or the district court. See Aplt. Br. 11–12; see also I

App. 621–72. Moreover, unlike the Roderick court, which considered and

rejected a number of XTO’s lease language arguments, the district court here did

not engage in any substantive analysis of lease terms. This is particularly

                                         -8-
significant because unlike the plaintiff in Roderick, Chieftain admits that some

leases expressly abrogate—and one even negates—the IDM. See, e.g., II App.

154; III App. 522–23; IV App. 1029–30; Aplee. Br. 34. Without expressing an

opinion as to the merits, the district court on remand might decide that differences

in lease language do not destroy commonality. 3 But Chieftain has the burden of

showing the common question is capable of classwide resolution, and the district

court must rigorously analyze whether Rule 23(a)’s commonality requirement has

been satisfied.

      Second, while the district court appears to have concluded that none of

XTO’s gas is in marketable condition at the well, see Chieftain, 

, at *1 (stating that raw wellhead gas “requires conditioning . . . to make

th[e] gas marketable”), we encourage the court on remand to address the

marketability question directly in its commonality analysis, given that both

parties devote substantial briefing to the issue. Further, we remind the district

court that, under Oklahoma law, there is a possibility that some gas could be in

marketable condition at the well. See Middlestaedt, 

, 1208 (“When

gas is shown by the lessee to be in marketable form at the well the royalty owner

may be charged a proportionate expense of transporting that gas to the point of

purchase.”).


      3
         We also leave it to the district court to determine whether and to what
extent the communitization of royalty interests affects Rule 23’s requirements.

                                        -9-
      Finally, as we explained in Roderick, “because the commonality, typicality,

and adequacy requirements of Rule 23(a) ‘tend to merge,’ the district court on

remand should consider whether the issues we have identified have any effect on

its typicality or adequacy findings.” ---F.3d at ---- (quoting Wal-Mart, 131 S. Ct.

at 2551 n.5) (citation omitted).

      II.    Rule 23(b)(3)

      We also remand for reconsideration of Rule 23(b)(3)’s predominance

requirement in light of the Supreme Court’s recent decision in Comcast

Corporation v. Behrend. See 133 S. Ct. at 1432–33 (holding that Rule 23(b)(3)’s

“even more demanding” criterion frequently will require the district court to

consider issues that overlap with the merits of plaintiff’s underlying claim). On

remand, we encourage the district court to examine, inter alia, those issues we

identified in Roderick as being particularly relevant to the predominance inquiry

(i.e., lease language, marketability, 4 and damages).

      From the record, it appears that the district court’s predominance analysis

did not consider the individualized questions that are likely to arise. In particular,

the district court does not appear to have addressed “the elements of the

underlying cause[s] of action.” Erica P. John Fund, Inc. v. Halliburton Co., 131


      4
          Even if none of XTO’s gas is in marketable condition at the well, the
district court should consider whether identifying the point at which a particular
stream of gas becomes marketable will require an individualized inquiry and, if
so, whether that inquiry will overwhelm questions common to the class.

                                        - 10 -
S. Ct. 2179, 2184 (2011). 5 As noted, Chieftain seeks recovery on an array of

theories, including contract, tort, and equity. Perhaps the district court concluded

that “the central issue,” Chieftain, 

, at *7—whether XTO’s

uniform payment methodology violated class members’ leases—would

predominate over individual questions. In light of Rule 23(b)(3), however, a

fuller explanation would be helpful. See, e.g., Gintis v. Bouchard Transp. Co.,

, 68 (1st Cir. 2010).

        III.   Collateral and Judicial Estoppel

        Finally, for the same reasons we articulated in Roderick, we decline to

exercise our equitable power to estop XTO’s opposition to class certification

here.



        5
         For example, when evaluating whether the class’s fraud claim meets Rule
23(b)(3)’s predominance requirement, the district court should consider, inter
alia, the advisory committee’s note regarding fraud class actions:

        [A] fraud perpetrated on numerous persons by the use of similar
        misrepresentations may be an appealing situation for a class action,
        and it may remain so despite the need, if liability is found, for
        separate determination of the damages suffered by individuals within
        the class. On the other hand, although having some common core, a
        fraud case may be unsuited for treatment as a class action if there
        was material variation in the representations made or in the kinds or
        degrees of reliance by the persons to whom they were addressed.

Fed. R. Civ. P. 23(b)(3) advisory committee’s note; see Erica P. John Fund, Inc.
v. Halliburton Co., 

, 2185 (2011) (discussing viability of securities
fraud class action, where “fraud-on-the-market” theory eliminates the need for
individualized proof of reliance).

                                        - 11 -
      For the foregoing reasons, we VACATE the district court’s class

certification order and REMAND for further proceedings consistent with this

opinion.


                                     Entered for the Court

                                     Paul J. Kelly, Jr.
                                     Circuit Judge




                                     - 12 -