Subject: Issue over substitution of named plaintiffs
From: [email-masked]
To: [email-masked], [email-masked], [email-masked], [email-masked]
Cc: [email-masked], [email-masked], [email-masked]
Date: Thu, 26 Oct 2000 10:43:00 -0700 (PDT)

We have considered, discussed, and researched the issue of whether, by 
"substituting named plaintiffs" instead of simply designating some of the 80+ 
individual plaintiffs as class reps, plaintiffs' attorneys effectively 
nonsuited all but the three named plaintiffs, and thus whether they must 
re-add them to pursue their claims individually.  Our conclusion was that the 
substitution was probably tantamount to a nonsuit, and that the plaintiffs 
would have to be re-added.

While considering potential trial on the merits, however, I was reminded  
that Intratex filed a counterclaim in 1996, to effectively hold the lawsuit 
in Harris County.  At the time, we had some concern that plaintiffs would 
nonsuit and refile in Midland, which they might perceive to be a friendlier 
forum, and a forum more scary to Enron, in light of the jury's verdict in the 
Conoco v. Northern case (a verdict subsequently overturned on appeal.)  The 
question thus arises:  does the presence of the counterclaim affect our 
original answer to the nonsuit question?  The inquiry is actually somewhat 
circular:  the First Amended Counterclaim, filed in April 1996,  is against 
"Richard Beeson, Eclipse Oil & Gas, Inc., O'Neill Properties, Ltd., and all 
other plaintiffs in the above-style action...."  Thus, if the other 
individual plaintiffs were effectively nonsuited, arguably they weren't 
counterclaimed against either.  I wanted to call this to your attention, 
however.

It bears noting that the answer to the nonsuit question does not, as of now, 
affect limitations on the non-class-rep plaintiffs' main claims, breach of 
contract and fraud, which are governed by a 4-year statute.  That is because 
limitations as to all would-be class members is tolled from the time 
certification was sought until, at the earliest, it was reversed by the 
Supreme Court.  Plaintiffs claimed they first learned of their claims in late 
September or October of 1994.  They sought certification on February 16, 
1996.  If they were nonsuited, under general nonsuit law their claim would 
not be tolled during the pendency of their original individual lawsuit 
pre-certification (a year and 4 months).  It is unclear how much tolling has 
occurred between March 9, 2000 and now.  Did tolling resume as of the time 
plaintiffs moved to redefine class, or as of the later time when they filed 
their supplemental motion for certification?  But evening assuming, for the 
sake of argument, that all tolling ceased as of the time the Texas Supreme 
Court reversed certification on March 9, 2000, only about another 7 months 
can be added to the year and 4 months.  So limitations would not have run on 
the 4-year claims.  (Plaintiffs are, however, cutting it close on their 
2-year claims, such as negligence and negligence per se.)