A little more than a year ago, the Barnett Shale gravy train was shooting through North Texas at blinding speeds. Even while some residents were accusing the city council of surrendering Fort Worth's future and environment to the gas drillers, thousands of property owners were getting on board with companies like Chesapeake and XTO as fast as they could, eager to get their fair share of the loot.
Natural gas prices were at record-high levels, and property owners who had waited out the negotiating process were reaping big rewards. Neighborhood groups banded together to negotiate better deals with the powerful companies than individual property owners could have gotten. Waiting for the bonuses and royalty rates to go higher seemed like a good strategy.
In April 2008, the Southeast Arlington Communities of Texas (SEACTX) negotiated a deal with XTO Energy that would bring in bonus money of $26,517 per acre and a royalty rate of 26.5 percent - among the highest in the Barnett Shale play. When leaders of SEACTX, representing about 7,000 property owners with about 5,000 acres, did the math, they figured that more than $100 million in upfront bonuses would be coming into their community of mostly modest to middle-class neighborhoods.
Four months later, the Southwest Fort Worth Alliance (SFWA) made a similar deal with Vantage Energy. The bonus was set at $27,000 an acre and the royalty rate at 23 percent. SWFA figured that more than $200 million in bonus money would soon be in the hands of the 25,000 property owners the consortium represents.
Well, that was then and this is now, when natural gas prices have fallen to less than half what they were in early 2008. And as anyone who has been following the Barnett Shale saga knows, drilling companies pulled out of those deals and others in mid-October of last year. Some property owners, whose bonus checks were processed prior to the cancellation, got paid. Tolli Thomas, a spokeswoman for SWFA, estimated that 4,000 to 5,000 people in her area got the money promised to them - and the other 20,000 or so did not.
The gas drillers blamed market forces for the cancellations. Gas prices had fallen significantly throughout the summer, and the big deals didn't make economic sense anymore, they said. Gas company officials also contend that the deals they'd made with neighborhood alliances weren't binding after all - that only contracts with individual property owners, who had filled out the proper paperwork, were enforceable. In fact, in at least two cases, companies are alleging that even those contracts were not enforceable until property owners got their checks.
So what does make a binding contract with a gas company? Can the drillers really ignore the promises they made, verbally and on paper, to neighborhood groups and, in some cases, to property owners? Are market fluctuations really a valid legal reason for backing away from signed contracts? Or were market fluctuations truly the reason for the widespread abandonment of those contracts? Thomas and others are now questioning that.
"The market fluctuations didn't match up with the timing of when the deals were pulled," she said. "It is still somewhat of a question in all of our minds how the market alone had caused this. We really question what was going on behind the scenes. These are questions that need to be answered by the companies."
In the coming months, those questions and others will be asked officially in Texas courts - maybe in Dallas, maybe in Tarrant County. A consortium of three Dallas law firms has filed the first two of what likely will be many lawsuits over the neighborhood associations' deals that were negotiated but never fulfilled and individual property owners' contracts that were signed but on which the companies have refused to pay off. The issues go beyond what's owed to a few individuals: Plaintiffs in the initial suits are claiming that the gas companies acted in collusion to pull out from under these record-setting bonus and royalty rate deals, thus allegedly violating deceptive trade practice and antitrust laws.
Kip Petroff, lead lawyer for North Texas Lease Litigation, the consortium formed by the three law firms, said the lawsuits his group have filed allege that "this is real estate fraud, and the gas companies deceived these homeowners who had negotiated in good faith."
Gas companies involved wouldn't respond to Fort Worth Weekly's request for information and interviews. They have said in court documents that Petroff's allegations have no merit.
This isn't Petroff's first major-litigation rodeo. He was the first attorney nationwide to get a judgment against a big pharmaceutical company in the "fen-phen" diet pill scandal. Following that first $23 million victory, he worked with law firms across the country on thousands of fen-phen cases.
In the gas contract dispute, Petroff said, "There was more than $300 million due the homeowners of these two neighborhood groups, and the facts are screaming out that something really wrong happened here. We are going to get the answers to these questions."
Getting the answers won't be easy. Some experts in real estate and antitrust law say that proving antitrust violations and enforcing agreements with neighborhood groups will be uphill battles.
But Petroff is thinking big. Rather than just suing the companies that the two neighborhood groups signed up with, he is asking that 21 drilling companies operating in this area be required to turn over records showing how they did business in the first eight months of 2008. And even though the first two cases are worth less than $5,000 each, those lawsuits could open the barn door to tens of thousands of other cases during the coming year. (A two-year statute of limitations means that any suits pertaining to gas company actions in 2008 must be filed by October 2010.)
Those who found out the hard way that their gas leases or neighborhood group agreements might not be enforceable are watching the proceedings closely.
"From the comments I've heard from a lot of my neighbors in southwest Fort Worth, there is a lot of interest in seeing what the legal options are," Thomas said. "The offers we are getting now are $2,500 an acre at most, less than 10 percent of the offer we had with Vantage Energy. ... A lot of people think that going to court may be their only next logical step."
Petroff's first two cases are on behalf of Arlington property owners who actually received bonus checks from XTO but never got to cash them.
Even though the plaintiffs live in Tarrant County and XTO is based here, Petroff and the consortium filed their suits in Dallas. His theory? That because some of the companies in the list of drillers and landmen firms he's suing are based in Dallas, either county would have jurisdiction.
And that may be the first major battle in this legal war. Petroff's critics say he's forum-shopping, avoiding Tarrant County, where the gas companies have a powerful public presence and many political supporters. Defendants, indeed, are seeking to move the cases here.
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