In suit brought by royalty owners, plaintiffs sought to certify three subclasses: (1) royalty owners alleging breach of an implied covenant to market under the leases; (2) royalty owners alleging breach of gas royalty agreements (GRAs); and (3) royalty owners alleging breach of an implied covenant by assessing an unreasonably high service fee to its marketing affiliate, thereby reducing income to the royalty owners. While affirming decertification of Subclasses 1 and 3 on predominance grounds, the Texas Supreme Court reversed decertification of Subclass 2, concluding that “the pricing provisions of the GRAs are unambiguous and may be construed classwide for royalty owners who executed substantially identical GRAs.” In its decision, the Court also rejected the notion “that class representatives who split the claims of the class are per se inadequate. Courts do not dictate the strategies parties must follow in litigation nor do they instruct litigants which claims or defenses they should, or should not, bring. As in other legal actions, however, class litigants are subject to the consequences of their choices and the doctrine of claim preclusion may bar future litigation of claims that they decide not to pursue in the current suit. If the class representatives do not assert at the trial court all claims for damages arising from the leases which could have been litigated before the trial court, the unasserted claims may be precluded by res judicata in subsequent litigation. The tactical and strategic decisions to structure the lawsuit are theirs; the implications of their actions are established by law. The court of appeals summarily concluded the ‘willingness of the class representatives to abandon claims for the sake of achieving commonality’ means the representatives cannot adequately represent the class, and thus the trial court abused its discretion in certifying. Under that approach, class representatives would always risk being inadequate representatives if they did not assert all possible claims for each individual class member. At the same time, though, class representatives bringing excessive numbers of individual claims may burden their ability to satisfy the typicality and predominance requirements. The choice of claims to pursue or abandon is one relevant factor in evaluating the requirements for class certification such as typicality, superiority, and adequacy of representation. Trial courts should assess the class action requirements in light of res judicata?s preclusive effect on abandoned claims when considering whether to certify a class.” See Bowden v. Phillips Petroleum, 247 S.W.3d 690 (Tex. 2008).
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