Consumer Class Conflict: The Battle against Heightened Ascertainability in the Sixth Circuit

Article | 105 KY. L. J. ONLINE | March 13, 2017

Houston Alexander Bragg[1]

The theoretical purpose of class action certification and litigation is to assist groups of plaintiffs, who are “isolated, scattered, and utter strangers to each other,” in procuring legal redress that may be unavailable to them individually.[2] The practical purpose of class action litigation is to create a check on manufacturers and other defendants who cause minimal damage to a multitude of people. Without Federal Rule of Civil Procedure 23 (F.R.C.P. 23) and class action litigation, low-figure consumer harm would lack a remedy. The Third Circuit is waging war on the practical purpose of class action litigation by creating an overwhelming requirement that plaintiffs, at the pretrial stage, be able to produce a “reliable and administratively feasible” apparatus for determining whether a supposed class member falls within the class definition.[3] This prerequisite to class certification acts as a shield to consumer recovery, completely altering the established definition of class ascertainability.

Introduction

It may not be long before consumer class action lawsuits that arise under F.R.C.P. 23(b) are obsolete in the Sixth Circuit. Due to a recent Third Circuit Court of Appeals opinion heightening the ascertainability (also known as identifiability) requirement implicit in class certification, federal circuits may see a major shift in the landscape of class action litigation. Pretrial class certification is the focal point of modern class action practice for both plaintiff and defense attorneys.[4] The certification of a class will almost certainly induce a settlement, whereas the preclusion of a class almost always results in the inevitable abandonment of a group suit.[5] As most highbrows of the Federal Rules of Civil Procedure are already aware[6] and as many scholars have previously explained,[7] the majority of federal circuits have acknowledged[8] and none have expressly rejected[9] that there is an ascertainability requirement implicit in the reading of F.R.C.P. 23.[10] “It is axiomatic that in order for a class action to be certified, a class must exist.”[11] Similarly, it is unsurprising that the implicit ascertainability requirement has been said to require that the class be clearly defined by referencing objective criteria (as opposed to the subjective state of mind of a class member)[12] or, stated another way, the class must be identifiable and susceptible to precise definition.[13] It was a dramatic shift, however, when the Third Circuit and several federal district courts adopted the notion that F.R.C.P. 23(b)(3) imposes an ascertainability requirement on class action plaintiffs that requires the production of a “reliable and administratively feasible” apparatus for determining whether a purported class member falls within the class definition in addition to a clearly defined class referencing objective criteria. [14] Practitioners and scholars call this “heightened ascertainability.”[15]The Third Circuit’s departure from “traditional ascertainability” (if such a new concept can be called “traditional”) met significant resistance from the Seventh Circuit Court of Appeals when, in a recent opinion, it directly opposed the heightened ascertainability requirement.[16] In Mullins v. Direct Digital, the Court of Appeals for the Seventh Circuit held that heightened ascertainability disrupts the plain language balance of factors in F.R.C.P. 23 by placing “absolute priority” on administrability.[17] The Plaintiff in Mullins, representing a class of similar consumers, sued a corporation for fraudulent representation.[18] The Court held that the class definition was clear and based on objective criteria, effectively combating ambiguous, subjective, and fail-safe classes.[19] The Seventh Circuit Court of Appeals refused to require the plaintiff to provide an “administratively feasible” apparatus for determining the members of the class.[20]The Sixth Circuit Court of Appeals has yet to decide whether to adopt, reject, or ignore heightened ascertainability. However, the Sixth Circuit Court of Appeals in Young v. Nationwide Mutual Insurance Company did suggest that “a class must not only exist, the class must be susceptible of precise definition.”[21] In referencing “precision” in its holding, the Sixth Circuit Court of Appeals may have been forewarning of its preference for administrative feasibility similar to that of the Third Circuit; claiming such, however, would be prematurely speculative.The various district courts within the Sixth Circuit that have weighed in on the ascertainability conundrum have demonstrated that there is ample inconsistency and concern as to how the circuit should manage the implicit ascertainability requirement of F.R.C.P. 23. It is critical that the Sixth Circuit refrain from adopting the Third Circuit’s heightened ascertainability. The adoption of heightened ascertainability in the Sixth Circuit would mean a drastic reduction in consumer confidence as well as the practical end to judicial regulation of product safety.This Note will explore the intricacies of the class action ascertainability circuit split between the Third and Seventh Circuits. It will attempt to illuminate the shortcomings of heightened ascertainability and discourage adoption of heightened ascertainability in the Sixth Circuit. Part I of this Note briefly describes the modern requirements for certification of consumer class actions. Part II identifies the ascertainability circuit split, explaining the positions of the Third and Seventh Circuits in detail. Part III argues that traditional ascertainability adequately curtails the three common difficulties concerning class certification leaving no legitimate motive for heightening the ascertainability requirement. Finally, Part IV encourages the Sixth Circuit to refrain from adopting the unnecessary precaution that is Third Circuit heightened ascertainability.

I. The Uphill Battle for Consumers: An Overview of Federal Rule of Civil Procedure 23

Because “[m]odern society seems increasingly to expose men to . . . group injuries for which individually they are in a poor position to seek legal redress,”[22] F.R.C.P. 23 was amended in 1966 to provide legal recourse to groups of consumers who were harmed as a result of another’s misfeasance regardless of their relationship to each other or the magnitude of their injury.[23] Since its establishment, F.R.C.P. 23 has been met with considerable opposition, specifically from consumer defendants and lobbyists. Immense corporations and their subsidiaries often are defendants in consumer class action lawsuits; over time these corporations, and their like-minded representatives, have become the face of class action reform.[24]The current language of F.R.C.P. 23 encompasses four explicit requirements for all class actions:

(1) the proposed class is so numerous that joinder of each individual plaintiff is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.[25]

The current rule also requires that the class fit into one of three functional categories.[26] The most common of these categories, F.R.C.P. 23(b)(3),[27] requires that “the questions of law or fact common to class members predominate over any questions affecting only individual members,” and that the class action be “superior to other available methods for fairly and effectively adjudicating the controversy.”[28]In addition to the statutory requirements of F.R.C.P. 23, the common law also requires that class action plaintiffs be prepared to prove at the pre-trial stage that at least some, if not all, of the above-mentioned prerequisites exist.[29] The court, when determining whether to certify the class, is required to “rigorously analy[ze]” not only the statutory requirements before certifying the class, but also the common law requirements.[30] If any of the requirements, statutory or common-law-based, are absent the class will be precluded and certification will be denied.Finally, recent rhetoric has suggested that F.R.C.P. 23 also includes an implied requirement that the proposed class be ascertainable.[31] The idea is that the class must be clearly defined with reference to objective criteria before certification is proper thereby limiting the indefiniteness inherent in large consumer classes.[32]

The ascertainability requirement serves several important objectives. First, it eliminates serious administrative burdens that are incongruous with the efficiencies expected in a class action by insisting on the easy identification of class members [i.e. the administrability objective]. Second, it protects absent class members by facilitating the best notice practicable under Rule 23(c)(2) in a Rule 23(b)(3) action [i.e. the practicability objective]. Third, it protects defendants by ensuring that those persons who will be bound by the final judgment are clearly identifiable [i.e. the identifiability objective].[33]

While the super-majority of circuits have recognized that this implicit requirement does indeed exist,[34] considerable controversy still remains as to how ascertainability should be applied to consumer class actions.In summation, even without the heightened ascertainability requirement proposed by the Third Circuit, consumers, at present, face more than seven prerequisites to Rule 23(b)(3) class certification. Consumer plaintiffs must prove the four explicit class action requirements set forth in F.R.C.P. 23(a) (numerosity, commonality, typicality, and adequacy), the two additional consumer class requirements in F.R.C.P. 23(b)(3) (predominance and superiority), rigorous pretrial common-law factual requirements, and the traditional ascertainability requirement implicit in F.R.C.P. 23. The up-hill battle consumer-plaintiffs currently face sufficiently curtails frivolous class action claims without the need for heightened ascertainability.

II. Third Circuit Heightened Ascertainability vs. Seventh Circuit Traditional Ascertainability: A Comparison

To require that a class of individuals be ascertainable before proceeding to trial is logical. Without such a prerequisite, plaintiffs’ counsel would not have to define or identify the parameters concerning his or her clients and their lawsuit until after class certification.[35] While the legitimacy of ascertainability is widely accepted, the precision with which a class must be ascertained is the subject of heated debate.[36] The two competing views concerning ascertainability (heightened ascertainability and traditional ascertainability) have created a rift in the federal common law. On one hand, a high bar for ascertainability would work to combat frivolous claims and protect industry innovation, but on the other hand, a low bar for ascertainability allows for consumer regulation of dangerous products and judicial latitude in determining whether to certify a class.The heightened ascertainability approach to identifiability was proffered by the Third Circuit Court of Appeals in Carrera v. Bayer Corporation.[37] The United States District Court of New Jersey certified a class of individuals who purchased a weight management product called “One-a-Day WeightSmart” produced by the Bayer Corporation.[38] The Plaintiffs argued that Bayer made false claims about WeightSmart’s metabolism-enhancing properties even though they knew those statements were false.[39] After rejecting a nationwide class of consumers who purchased WeightSmart, the lower court certified a class of consumers who purchased WeightSmart in Florida.[40] Bayer claimed that ascertaining the class of WeightSmart purchasers would be nearly impossible because the entirety of the class action hinged on each individual plaintiff retaining a three-year-old proof of purchase receipt.[41]In certifying the class, the lower court cited the Eleventh Circuit saying “the manageability inquiry ‘will rarely, if ever, be in itself sufficient to prevent certification of a class. “Courts are generally reluctant to deny class certification based on speculative problems with case management.”’”[42] The court held that the obstacles facing the plaintiffs’ identification of its class members were not insurmountable, at least in part, because the claims involved were relatively small and counsel identified methods of verifying their claims.[43] Because plaintiffs’ counsel clearly defined the class by referencing receipts, loyalty club membership, old packaging, affidavits by consumers, and online purchase records (i.e. objective criteria), the lower court held that the problems with the manageability of the class were insufficient to prevent certification.[44]The Third Circuit Court of Appeals, under an abuse of discretion standard,[45] reversed the lower court’s decision when it extended its hardline approach to ascertainability fashioned in Marcus v. BMW of North America.[46] The Third Circuit expressly rejected the lower courts’ findings by holding that “[a]scertainability mandates a rigorous approach at the outset because of the key roles it plays as part of a Rule 23(b)(3) class action lawsuit,”[47] and that “[i]f class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.”[48] The court set forth three primary reasons for heightening the widely accepted standard for ascertainability. The court determined that “[f]irst, at the commencement of a class action, ascertainability and a clear class definition allow potential class members to identify themselves for purposes of opting out of a class.”[49] Second, it ensures that a defendant's rights are protected by the class action mechanism and that vague, subjectively defined, and fail-safe classes are not certified.[50] Third, it ensures that the parties can identify class members in a manner consistent with the efficiencies of a class action.[51] The method of determining whether someone is in the class must be "administratively feasible."[52]Under the Third Circuit’s definition of ascertainability, a plaintiff does not satisfy the ascertainability requirement if additional individualized fact-finding will be required to prove class membership.[53] The primary focus of heightened ascertainability is simply administrative feasibility. According to commentators, “[a]dministrative feasibility means . . . identifying class members [through] a manageable process that does not require much, if any, individual factual inquiry."[54]In direct response to the Third Circuit’s heightened ascertainability holdings in Carrera and Marcus, the Seventh Circuit reaffirmed its commitment to the established traditional definition of ascertainability, expressly rejecting heightened ascertainability in Mullins v. Direct Digital, L.L.C.[55] In Mullins, the lower court certified a class of consumers who purchased a joint support supplement drug called “Instaflex.”[56] The plaintiffs claimed that Direct Digital made misrepresentations about its product by asserting that Instaflex would “relieve discomfort,” “increase mobility,” and that it was “scientifically formulated . . . and clinically tested” when, in reality, it was nothing more than a sugar pill.[57] The Eastern Division of the United States District Court of Illinois held that the consumer class of Instaflex purchasers was ascertainable because it was “objectively contained to all individuals who purchased Instaflex for personal use during the class period and the class period is finite.”[58] The court held that in order to establish pretrial ascertainability, the class should be restricted to individuals who purchased the supplement within the applicable statute of limitations (the class period), in certain states (the class states), for personal use, and only until the manufacturer notice was disseminated.[59]The Seventh Circuit Court of Appeals upheld the lower court’s class certification, refusing to adopt the Third Circuit’s heightened ascertainability approach proposed by the defendants, Direct Digital.[60] In its decision, the Seventh Circuit deconstructed the Third Circuit’s heightened ascertainability approach. It observed:

As it stands now, the Third Circuit’s test for ascertainability has two prongs: (1) the class must be “defined with reference to objective criteria” (consistent with long-established law discussed above), and (2) there must be “a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.”[61]

The Seventh Circuit determined that heightened ascertainability moves well beyond the examination of class adequacy itself. It transforms the requirement into an examination of the potential difficulties in both identifying particular members of a proposed class and evaluating the validity of class members’ potential claims.[62] The Seventh Circuit concluded in part that heightened ascertainability’s focus on administrability exists as a detriment to other equally important considerations.[63]The Seventh Circuit Court of Appeals held that Direct Digital’s apprehensions were sufficiently extinguished by the numerous explicit requirements of F.R.C.P. 23 and traditional ascertainability; the policy, equity, and due process arguments proposed by defendant, Direct Digital were curtailed by existing jurisprudence.[64] Further, it held that the second prong of the Third Circuit’s heightened ascertainability test skews the balance of class action considerations by focusing too much on the administrability of the class action litigation.[65] The Seventh Circuit suggested that, in practice, the heightened ascertainability requirement could “erect a nearly insurmountable hurdle at the class certification stage in situations where a class action is the only viable way to pursue valid, but small, individual claims.”[66]The Seventh and Third Circuits have bifurcated the doctrine of class action ascertainability. Both Carrera and Mullins were misrepresentation cases involving a class of consumers who purchased an over-the-counter drug that failed to live up to the company’s promises. In the Third Circuit, the Mullins class would have most likely been precluded, whereas in the Seventh Circuit, the Carrera class would almost certainly have been certified. Most jurisdictions will, at some point, be faced with the question of whether they are willing to deny class certification based on speculative problems with case management. At that point, the jurisdiction will have to choose whether to follow the established norms of traditional ascertainability, adopt heightened ascertainability, or create a separate approach to ascertainability, further complicating class action jurisprudence.

III. Traditional Ascertainability Accounts for the Totality of Class Action Concerns: A Balanced Approach to Ascertainability

“The policy concerns motivating the heightened ascertainability requirement are better addressed by applying carefully the explicit requirements of Rule 23(a) and especially (b)(3).”[67] The existing requirements of F.R.C.P. 23 adequately, and without excess, address the balance of interests that class action litigation was created to protect.[68] As stated in Mullins, the Third Circuit’s approach to ascertainability is flawed; it gives unbalanced priority to a single objective, administrability, which results in an upset of the established F.R.C.P. 23 balance.[69]The Third Circuit Court of Appeals, in its landmark heightened ascertainability case, Carrera, set forth three separate, yet equally important, functions that the ascertainability requirement serves to protect: administrability, practicability, and identifiability.[70] Nowhere in the Carrera holding, or anywhere else in the law of ascertainability, is it written that any one of these functions is more determinative than the others or should be given more consideration than its counterparts.Indeed, the three objectives within the implied requirement of ascertainability must also be balanced against other outside influences and interests of the parties involved.[71] The Seventh Circuit Court of Appeals, in Mullins, held that a court must consider “’the likely difficulties in managing a class action,’ but in doing so it must balance countervailing interests to decide whether a class action ‘is superior to other available methods for fairly and efficiently adjudicating the controversy.’”[72] The court further held that the administrability of the class (an aspect of ascertainability) must be balanced with other pertinent interests, including the effectiveness of the recourse and the sufficiency of class action over other legal avenues.[73] Thus, administrability, the element of ascertainability that the Third Circuit’s approach exclusively expands, is more appropriately one of many factors in the totality of the class action balance. As such, one factor cannot supersede, without legislative indication, all of the other moving parts involved in a multi-faceted class action lawsuit.As the Seventh Circuit Court of Appeals so eloquently stated, “[w]hen courts wrote of th[e] implicit requirement of ‘ascertainability,’ they trained their attention on the adequacy of the class definition itself.”[74] The court explained that “[t]hey were not focused on whether, given an adequate class definition, it would be difficult to identify particular members of the class” as heightened ascertainability so speculatively requires.[75]

A. Traditional Ascertainability Sufficiently Protects Defendants Against Vague Classes

The Seventh Circuit, in Mullins, set forth three common ascertainability complications that heightened ascertainability was designed to remedy.[76] The first of these can be described as vague classes.[77] Vague classes result when the boundaries concerning who can become a class member are not properly drawn. As James W. Moore, of Moore’s Federal Practice, wrote, “[t]here can be no class action if the proposed class is ‘amorphous’ or ‘imprecise.’”[78] To avoid vagueness, class definitions generally need to identify (1) a particular group (2) harmed during a particular time frame (3) in a particular location and (4) in a particular way.[79] Precision is necessary to identify who will receive notice of the class, who will enjoy recovery if the class is successful, and who will be bound by the judgment.[80] Without some sort of protection against vague classes, defendant corporations and manufacturers could be liable to an indefinite number of plaintiffs without being able to sufficiently allocate the cost of their actions. This proposition has been firmly rejected by legislatures and judiciaries.

The traditional approach to ascertainability, namely a clearly defined class referencing objective criteria, accounts for the four particularities required to avoid vague classes without over-protecting class action defendants from group recovery. By “clearly defining a class,” under the traditional approach to ascertainability, one must establish certain bounds in which a consumer must fall. In Mullins, the plaintiffs must have (1) purchased Instaflex; (2) during the prescribed statute of limitations; (3) in Illinois and other certain states; (4) for personal use.[81] If individuals satisfied those parameters they could become a member of the class.[82] If even one of those elements was not present, the individual would not be accepted as a member.[83] Similarly, in Carrera, the district court explained that the plaintiffs (1) must have purchased WeightSmart (2) in the state of Florida and (3) must be able to verify their purchase through receipts or other records from loyalty cards or online purchases.[84] The traditional approach to ascertainability effectively curtailed the possibility of certifying a vague class in both Mullins and in the district court interpretation of Carrera. On the other hand, while a court would most likely avoid any unintentional certification of a vague class by demanding that plaintiffs provide a reliable and administratively feasible apparatus for determining class membership at the pretrial stage, as the Third Circuit’s heightened ascertainability requires, it would do so the cost of rejecting legitimate class suits like the one in Carrera.

B. Traditional Ascertainability Sufficiently Protects Against Classes Based on Subjective Criteria

The second complication that heightened ascertainability purports to avoid is classes based on subjective criteria.[85] The objectivity requirement of traditional ascertainability (i.e. classes referencing objective criteria) disallows the certification of classes that are based on the state of mind of the plaintiff.[86] Plaintiffs can usually avoid this by defining a class in terms of conduct as opposed to a subjective state of mind.[87] The subjective class issue occurs when a group of plaintiffs attempt to find unity in the expectations they had or their personal feelings. A class based on what someone thinks or subjectively expects would be extremely problematic. Not only would the class require the court to address each member’s claim individually to determine legitimacy, but it would be impossible to substantiate whether the claims were meritorious.The traditional ascertainability approach, by definition, accounts for the objectivity necessary to determine a legitimate class, whereas the additions made by heightened ascertainability add little, if anything, to the fold. The traditional approach requires a prima facie “reference of objective criteria” before ascertainability can be established.[88] In Simer v. Rios, the Seventh Circuit, the circuit most fervently combating heightened ascertainability, applied the traditional ascertainability approach and rejected a class certification for a group of people who sought accreditation based on their individual discouraged feelings.[89] The plaintiffs in Simer were a group of individuals who were “discouraged” from applying for an energy conservation grant because of a caveat for that program that first required delinquency.[90] The class definition did not reference objective criteria based on conduct but instead based membership on a subjective state of being that proved far too difficult to ascertain.[91] In Mullins and Carrera, the courts recognized that the plaintiffs were not basing their claims on the individual disappointment of each member in the product that they purchased, but rather on the act of purchasing a product that misrepresented itself—an objectively provable contention.”[92] The heightened ascertainability requirement for a reliable and administratively feasible apparatus for determining class membership, by itself, fails to add any substance to the struggle against subjective class certification.

C. Traditional Ascertainability Sufficiently Protects Against Fail-Safe Classes

Finally, the Seventh Circuit Court of Appeals in Mullins identified fail-safe classes as the third complication commonly arising out of the ascertainability requirement.[93] Fail-safe classes are classes that cannot be defined until the case has been resolved on its merits.[94] Under F.R.C.P. 23, classes are disallowed if they are defined in terms of success on the merits.[95] This is a particular problem because the class member will either win the class action, or, by virtue of losing, become a non-class member, creating a double-edged sword for class action defendants.[96] If the class is certified then the defendant is pressured to settle; but if the class is rejected, then the individual may still have a separable action not barred by claim or issue preclusion.[97]In order to avoid creating a fail-safe class, membership should not depend on the liability of the defendant.[98] Similar to its defense against vague classes, the traditional approach to ascertainability contemplates the problem of fail-safe classes by requiring the class to be clearly defined.[99] When a plaintiff defines a class clearly, it becomes apparent whether the class is bound together by the defendant’s liability. In the case of Sauter v. CVS, the plaintiff tried to certify a class of individuals who had received non-emergency telemarketing calls from CVS even though they did not give consent to the calls.[100] By defining the class in such a manner, the plaintiffs would win the case if they had indeed been called and did not give consent (the two things necessary to win in this case), but would be released from trial if they did not survive the class definition, thus evading claim preclusion by not being bound by an adverse judgement.[101] In Mullins, the class was predicated on the sufficiency of the product’s representations and not on the liability of the defendant.[102] If Direct Digital prevails in Mullins, res judicata will bar class members from re-litigating their claims in a different forum.[103] Traditional ascertainability allowed the court in Sauter to identify a fail-safe class[104] and the court in Mullins to distinguish a properly ascertainable class.[105] Third Circuit heightened ascertainability is unnecessary to protect against fail-safe classes.While the Third Circuit claimed that its heightened approach to ascertainability would promote administrability, practicability, and identifiability of class claims, the additions seem to have little to no effect on the complications facing class ascertainability.[106] The traditional approach to ascertainability along with the explicit requirements of F.R.C.P. 23 sufficiently curtail the common complications facing class ascertainability.

IV. The Sixth Circuit Approach to the Ascertainability Condundrum

Ascertainability in the Sixth Circuit is muddled; no concrete holding has been established concerning the ascertainability requirement implicit in F.R.C.P. 23. The Sixth Circuit Court of Appeals has not explicitly adopted heightened ascertainability, but in Young v. Nationwide Mutual Insurance Company, it adopted the definition from Moore’s Federal Practice that “a class must not only exist, [it] must be susceptible to precise definition.”[107] While the Young decision has been heavily scrutinized,[108] it does suggest that the Sixth Circuit may be open to adopting a heightened approach to ascertainability.[109] In Young, the plaintiffs created a class of insured individuals who were allegedly overcharged for the services they received (i.e. they paid taxes on non-taxable charges).[110] The court explained that

[f]or a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria. In some circumstances, a reference to damages or injuries caused by particular wrongful actions taken by the defendants will be sufficiently objective criterion for proper inclusion in a class definition. Similarly, a reference to fixed, geographic boundaries will generally be sufficiently objective for proper inclusion in a class definition.[111]

In its discussion of the class definition, the court in Young withdrew back to traditional ascertainability language and continued later in its opinion to refer to administrability as if it were separate and apart from class definition and ascertainability.[112] While the opinion in Young seems to tender the court’s preference for administrability, it retreats on multiple occasions and explains that the difficulty in reviewing class membership is not dispositive.[113]If the Sixth Circuit Court of Appeals’ opinion in Young was unhelpful in foreshadowing what the circuit may do when faced with an ascertainability conundrum, then the opinions from the district courts within the Sixth Circuit concerning ascertainability have muddied the waters even more. There is little agreement among the Sixth Circuit district courts that have commented on the subject of ascertainability. The Eastern Division of the Northern District of Ohio opined in In re Polyurethane Foam Antitrust Litigation that the Sixth Circuit has not explicitly required ascertainability, but in the same breath recognized the Third Circuit’s two-pronged heightened ascertainability test as the proper test for determining ascertainability.[114] The Western Division of the Northern District of Ohio in Galoski v. Applica Consumer Products required only that the class be clearly defined referencing objective criteria, mirroring the traditional test for ascertainability.[115] Similarly, the Western District of Tennessee in Cole v. City of Memphis required only that a class be clearly defined referencing objective criteria, again, mirroring the traditional test for ascertainability.[116] The Eastern District of Michigan in Barry v. Corrigan blurs heightened ascertainability with the requirements implicit for defining a class set forth in F.R.C.P. 23(c)(1)(B).[117]With such discord in the realm of class ascertainability, it is understandable why the Third and Seventh Circuits have sketched out the boundaries of ascertainability with such vigor in their jurisdictions. Hard and fast rules are the easiest way to set expectations and expose weaknesses in a jurisdiction’s approach to a judicial rule. Certainly, there is no consensus in the Sixth Circuit as to the status of ascertainability. However, if the Sixth Circuit Court of Appeals’ decision in Young is any indication, then the Sixth Circuit, a historically objective circuit, is on its way to adopting a heightened ascertainability approach to class action certification that would undermine the justifications for F.R.C.P. 23(b)(3) consumer class actions.[118]As explained above, the ascertainability requirement serves to eliminate administrative burdens, facilitate the best notice practicable, and protect defendants from expansive judgements.[119] The first objective of the implicit ascertainability requirement—administrability —is unequivocally represented in the heightened ascertainability approach.[120] However, the Sixth Circuit already has the superiority and numerosity requirements of F.R.C.P. 23(a) and (b)(3), which also support the administrability objective without requiring the plaintiff to prove feasibility and provide an apparatus by which to measure the class.[121] The second and third objectives—practicality and identifiability—are also furthered by Third Circuit heightened ascertainability, albeit minimally, by requiring that the plaintiff prove feasibility of the class and provide an apparatus for determining the identity of class members. Regardless of the implicit practicality and identifiability aspects of heightened ascertainability, the Sixth Circuit requires class counsel to prove typicality, commonality, numerosity, traditional ascertainability, and the superiority requirements before certification.[122] Thus, it adds nothing to the practicality nor the identifiability discussions to adopt the Third Circuit’s new requirement. When read together, the current requirements of F.R.C.P. 23 requires that the class be practical in its notification of identified class members.Heightened ascertainability is, if anything, repetitive. While it purports to establish a novel rule by which to streamline the class certification process, it merely restates the objectives implicit in the current reading of F.R.C.P. 23 and the common law of class actions. It is imperative that the Sixth Circuit refrain from the adoption of heightened ascertainability. The adoption of such a rule does not advance protection against vague, subjective, or fail-safe classes, nor does it promote any novel objectives. Adopting heightened ascertainability gives unwarranted priority to judicial administrability of a class and could mean the practical end to consumer regulation of the market.

Conclusion

The theoretical purpose of class action certification and litigation is to assist groups of plaintiffs who are “isolated, scattered, and utter strangers to each other” to procure legal redress, which may be unavailable to them individually.[123] The practical effect of class action litigation is a check on manufacturers and other defendants who cause minimal damage to a multitude of people. Without F.R.C.P. 23 and class action litigation, a large portion of consumer harm would lack a remedy.It is highly unlikely that Congress will abolish consumer class action practice anytime in the foreseeable future. By heightening the ascertainability requirement, however, courts may practically effectuate a similar result. There is a public policy in favor of holding defendants accountable no matter how small or large the harm they cause.[124] Plaintiffs currently face at least seven requirements they must prove before the certification of a class is granted; the additional administrability requirement proposed by the Third Circuit does nothing more than add to the thicket of hurdles for class counsel. The implications of creating another hurdle for class action plaintiffs could mean an immense decline in consumer class action suits and less judicial oversight of manufacturers and corporate defendants.Ascertainability is essential to judicial economy. I do not advocate that ascertainability is unnecessary, as some scholars have done.[125] Rather, I argue that the traditional approach to ascertainability is sufficient to curb the threats presented by unascertainable classes. The Third Circuit’s heightened approach to ascertainability skews the proper balance of interest by placing too much weight on administrability. The Sixth Circuit should repudiate the Third Circuit’s heightened approach to ascertainability and embrace the Seventh Circuit’s traditional approach in order to maintain the balance necessary for equitable class certification determinations.

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[1] J.D. Candidate, 2017, University of Kentucky College of Law; B.A., 2013, Morehead State University. In memory of Edna May Bragg to whom I owe my faith and fortitude.

[2] Geoffrey C. Shaw, Class Ascertainability, 124 Yale L. J. 2354, 2356 (2015) (quoting Harry Kalven, Jr. & Maurice Rosenfield, The Contemporary Function of the Class Suit, 8 U. Chi. L. Rev. 684, 688 (1941).

[3] Carrera v. Bayer Corp., 727 F.3d 300, 308 (3rd Cir. 2013).

[4] See Jason Steed, On “Ascertainability” as a Bar to Class Certification, 23 App. Advoc. 626, 626 (2011); see also Chamberlan v. Ford Motor Co., 402 F.3d 952, 957 (9th Cir. 2005) (explaining the “death knell” nature of class certification).

[5] Steed, supra note 4. See generally Samuel Issacharoff, Myriam Gilles, Andrew J. Pincus & D. Theodore Rave, The Current State of the Consumer Class Action, 11 N.Y.U. J. L. & Bus. 647 (2015) (providing background commentary on modern class action litigation).

[6] 5 James Wm. Moore et al., Moore’s Federal Practice, ¶ 23.21[1] (3d ed. 2016).

[7] Steed, supra note 4.

[8] Shaw, supra note 2, at 2357-58; Steed, supra note 4, at 628. See also, e.g., Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 657 (7th Cir. 2015); Carrera, 727 F.3d at 304; Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 589 n.8 (9th Cir. 2010); Romberio v. Unumprovident Corp., 385 F.App’x. 423 (6th Cir. 2009); In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 30 (2d Cir. 2006); In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 19 n.22 (1st Cir. 2005); Shook v. El Paso Cty., 386 F.3d 963, 972 (10th Cir. 2004); In re A.H. Robins Co., 880 F.2d 709, 728 (4th Cir. 1989); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970).

[9] See Steed, supra note 4 at 628 (stating that most circuits have acknowledged an ascertainability requirement).But see Shaw, supra note 2, at 2354 (arguing a rejection of the ascertainability requirement).

[10] Steed, supra note 4 at 626.

[11] Moore, supra note 6.

[12] See Mullins, 795 F.3d at 659-60.

[13] Steed, supra note 4, at 627.

[14] Carrera v. Bayer Corp., 727 F.3d 300, 307 (3rd Cir. 2013).

[15] See, e.g., Mullins, 795 F.3d at 663; Shepard Goldfein & James A. Keyte, Heightened Ascertainability In Class Actions: Clash of Two Circuits, 254 N.Y.L.J. available at https://www.skadden.com/sites/default/files/publications/070081527Skadden.pdf.

[16] See Mullins, 795 F.3d at 658.

[17] Id.

[18] Id.

[19] Id. at 660-61.

[20] Id. at 662.

[21] Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012).

[22] Harry Kalven, Jr. & Maurice Rosenfield, The Contemporary Function of the Class Suit, 8 U. Chi. L. Rev. 684, 686 (1941).

[23] See Fed. R. Civ. P. 23.

[24] See Class Action Fairness Act of 2005, Pub. L. No. 109–2, 119 Stat 4; Public Citizen, Unfairness Incorporated: The Corporate Campaign Against Consumer Class Actions (2003).

[25] See Fed. R. Civ. P. 23(a) (known in short as (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy).

[26] See Fed. R. Civ. P.

[27] Steed, supra note 4.

[28] See Fed. R. Civ. P. 23(b)(3) (known, in short, as (5) predominance and (6) superiority).

[29] See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

[30] Id. at 351.

[31] Moore, supra note 6.

[32] Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 659 (7th Cir. 2015).

[33] Carrera v. Bayer Corp., 727 F.3d 300, 305-06 (3rd Cir. 2013).

[34] Steed, supra note 4.

[35] See Simer v. Rios, 661 F.2d 655, 669-71 (7th Cir. 1981) (discussing the issues present in defining and identifying the members of a class).

[36] See, e.g. Mullins, 795 F.3d 654; Carrera, 727 F.3d 300; Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010); Romberio v. Unumprovident Corp., 385 F.App’x. 423 (6th Cir. 2009); In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24 (2nd Cir. 2006); In re PolyMedica Corp. Sec. Litig., 432 F.3d 1 (1st Cir. 2005); Shook v. El Paso Cnty., 386 F.3d 963 (10th Cir. 2004); In re A.H. Robinson Co., Inc., 880 F.2d 709 (4th Cir. 1989); DeBremaecker v. Short, 433 F.2d 733 (5th Cir. 1970).

[37] See Carrera, 727 F.3d at 305 (3rd Cir. 2013).

[38] See Carrera v. Bayer Corp., No. 08-4716, 2011 WL 5878376, at *1 (D.N.J. Nov. 22, 2011).

[39] Id. at *1.

[40] Id. at *9.

[41] Id. at *3.

[42] Id. at *4 (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1272-73 (11th Cir. 2004)).

[43] Id.

[44] Id.

[45] Carrera v. Bayer Corp., 727 F.3d 300, 305 (3rd Cir. 2013).

[46] Id. at 303-04.

[47] Id. at 307.

[48] Id. at 305.

[49] Id. at 307.

[50] Id.

[51] Id.

[52] Id.

[53] Id. at 304.

[54] William B. Rubenstein, Newberg on Class Actions § 3:3 (rev. 6th ed. Supp. 2016).

[55] See Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 658 (7th Cir. 2015).

[56] Mullins v. Direct Digital, LLC, No. 13-CV-1829, 2014 WL 5461903, at *1, *4 (N.D. Ill. Sept. 30, 2014).

[57] Id. at *1.

[58] Id. at *2.

[59] Id.

[60] Mullins, 795 F.3d at 657.

[61] Id. at 662 (citing Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015); see also Shelton v. Bledsoe, 775 F.3d 554, 560 (3d Cir. 2015) (explaining that “defining the class” and “class ascertainability” are distinct concepts).

[62] Mullins, 795 F.3d at 657. See also Byrd, 784 F.3d at 168-69.

[63] See Mullins, 795 F.3d at 658, 672.

[64] Id. at 663-72.

[65] Id. at 662.

[66] Id. at 662.

[67] Id. at 658.

[68] Id.

[69] Mullins, 795 F.3d at 658.

[70] See Carrera v. Bayer Corp., 727 F.3d 300, 305-06 (3d Cir. 2013).

[71] See Mullins, 795 F.3d at 658.

[72] Id. (quoting : Fed. R. Civ. P. 23(b)(3)).

[73] See generally id. at 663-64 (explaining that the superiority requirement is comparative and that courts “must assess efficiency with an eye toward ‘other available methods’”).

[74] Id. at 659.

[75] Id.

[76] Id. at 657.

[77] Id.

[78] Moore, supra note 6 (quoted in Young v. Nationwide Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012)).

[79] 1 McLaughlin on Class Actions § 4:2 (13th ed. 2016 update).

[80] Mullins, 795 F.3d at 660 (citing Kent v. SunAmerica Life Ins. Co., 190 F.R.D. 271, 278 (D. Mass. 2000)).

[81] Id. at 658.

[82] See id.

[83] See id.

[84] See Carrera v. Bayer Corp., No. 08-4716, 2011 WL 5878376, at *2-3 (D.N.J. Nov. 22, 2011).

[85] Mullins, 795 F.3d at 657.

[86] Id. at 660.

[87] William B. Rubenstein, Newberg on Class Actions § 3:5 (5th ed. 2016 update).

[88] Mullins, 795 F.3d at 662 (quoting Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d. Cir. 2015).

[89] Simer v. Rios, 661 F.2d 655, 669-70 (7th Cir. 1981).

[90] Id. at 657-58.

[91] Id. at 668-69, 682.

[92] Mullins, 795 F.3d at 660-61; Carrera v. Bayer Corp., No. 08-4716, 2011 WL 5878376, at *7, (D.N.J. Nov. 22, 2011).

[93] Mullins, 795 F.3d at 657.

[94] See Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012).

[95] Id.

[96] Id.

[97] See id.

[98] Mullins, 795 F.3d at 660 (citing Erin L. Geller, Note, The Fail-Safe Class as an Independent Bar to Class Certification, 81 Fordham L. Rev. 2769, 2808 (2013)).

[99] Id. at 659 (explaining the traditional approach to ascertainability).

[100] Sauter v. CVS Pharmacy, Inc., No. 2:13-CV-846, 2014 WL 1814076, at *1 (S.D. Ohio May 7, 2014).

[101] Id. at *3-4.

[102] Mullins, 795 F.3d at 661.

[103] Id.

[104] Sauter, 2014 WL 1814076, at *9.

[105] Mullins, 795 F.3d at 660-61.

[106] See supra Part III and accompanying notes.

[107] Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012) (quoting : Moore, supra note 6).

[108] See, e.g., Cole v. City of Memphis, 839 F.3d 530, 541 (6th Cir. 2016) (comparing 6th Circuit’s decision in Young, 693 F.3d 532, to the decisions to other circuits).

[109] Young, 693 F.3d at 537-38.

[110] Id. at 535.

[111] Id. at 538-39 (quoting Moore, supra note 6).

[112] See id. at 540.

[113] Id.

[114] In re Polyurethane Foam Antitrust Litig., No. 1:10 MD 2196, 2015 WL 4459636 at *5-7 (N.D. Ohio July 21, 2015).

[115] Galoski v. Applica Consumer Prods., 309 F.R.D. 419, 422 (N.D. Ohio 2015).

[116] Cole v. City of Memphis, No. 2:13-cv-02117-JPM-dkv, 2015 WL 3442277, at *5 (W.D. Tenn. May 28, 2015).

[117] Barry v. Corrigan, 79 F. Supp. 3d 712, 728-33 (E.D. Mich. 2015).

[118] See generally Young, 693 F.3d 532 (describing class certification requirements).

[119] Carrera v. Bayer Corp., 727 F.3d 300, 305-06 (3rd Cir. 2013).

[120] See Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 663-73 (7th Cir. 2015) (conceding that heightened ascertainability addresses administrability).

[121] Fed R. Civ. P. 23(a), (b)(3).

[122] See, e.g., Young, 693 F.3d 532.

[123] Shaw, supra note 2 (quoting Harry Kalven, Jr. & Maurice Rosenfield, The Contemporary Function of the Class Suit, 8 U. Chi. L. Rev. 684, 687-88 (1941)).

[124] See Fed. R. Civ. P. 23.

[125] Shaw, supra note 2, at 2363.

Limits to the Class Action Device: The Kentucky Wages and Hours Act Does Not Permit a Class Action

Article | 103 KY. L. J. ONLINE 2 | July 17, 2015

Jeffrey A. Savarise and Timothy J. Weatherholt[1]

I. Introduction

Class action claims for unpaid wages have become pervasive in both state and federal courts. Plaintiff employment attorneys and the ever burgeoning class action law firms are filing these cases throughout the country, including in Kentucky. A wage and hour class action can be extremely lucrative from a financial standpoint for plaintiffs’ counsel. Many of these classes include hundreds, if not thousands, of class members. Assuming a one-third contingency fee, a plaintiff counsel who settles a typical wage and hour class action could easily earn a seven-figure fee.The federal wage and hour law, the Fair Labor Standards Act (“FLSA”), provides for a class mechanism for wage claims – collective actions. However, individuals must “opt in” to the “class,” as opposed to the more traditional “opt out” class actions. Under 29 U.S.C. § 216(b) of the FLSA, a member of the class who is not named in the complaint is not a party unless he or she affirmatively “opts in” by filing a written consent-to-join with the court.[2] This has the obvious effect of limiting the recovery pool. Recent statistics show only around fifteen percent of litigants in federal collective actions actually “opt in” to the litigation.[3] The incentive for a plaintiff counsel to proceed in a state law class action – as opposed to a collective action under the federal law that requires litigants to affirmatively “opt in” to the case – is extremely high.Fortunately, for many members of the plaintiffs’ bar who practice wage and hour cases, most states supplement the basic protections of the FLSA with their own wage and hour laws. Some, but not all of these state laws, permit the class action device. For instance, several state wage and hour statutes explicitly permit an action to be brought on behalf of others.[4] The wage and hour statutes in other states provide more general language that does not authorize, nor preclude, the use of the class action device.[5] In this situation, state courts will typically approve of the class action device.[6] In those cases, plaintiffs are basically limited to the remedy provided under the FLSA.While this issue is settled in practically every state, either by clear statutory text or case law, the question of whether a Kentucky plaintiff can pursue a class action under Kentucky’s Wages and Hours Act (the “Kentucky Act”) remains unresolved.[7] The Kentucky Act is unique in that, on its face, for the reasons explained below, it does not appear to permit class actions. Yet, until recently, courts have taken no issue with plaintiffs pursuing class actions under the Kentucky Act.[8] In fact, it appears no employer/defendant had ever raised the issue prior to the authors of this note. This issue has serious potential consequences, not only due to the differences between “opt in” and “opt out” actions, but also because the statute of limitations under the Kentucky Act is five years[9] and the statute of limitations under the FLSA is only two years for non-willful violations.[10]This note argues Kentucky courts should adhere to the plain language and other extrinsic sources that support the position that class actions are not viable under the Kentucky Act. In Part II, this note will discuss the brief history of KRS 337.385 of the Kentucky Act and a few of the relevant cases discussing how wage and hour claims may proceed. The note will then review the Kentucky Act’s plain language and compare Kentucky’s statutory language to language in similar, but distinct statutes – the FLSA and Kentucky’s statutes prohibiting wage discrimination based on sex. The note will then discuss the opposing view for why the Kentucky Act might not bar class actions. In Part III, this note will discuss the recent decision by the Kentucky Court of Appeals in which it stated, albeit in dicta, the Kentucky Act precludes class actions. In Part IV, the note will discuss why the Court of Appeals was correct, but why a more comprehensive opinion is needed. In Part V, the note will highlight another opinion which provides a roadmap for how this dispute can be resolved. The note will conclude by discussing how the Kentucky General Assembly, not the courts, provides the best opportunity to enable the plaintiffs’ bar to bring class actions under the Kentucky Act.

II. The Kentucky Act: Its History and Text, As Well As Its Similarities and Differences as Compared to Like Statutes

A.The Language of KRS 337.385 Has Remained Remarkably Consistent Over Time

KRS 337.385(1) was first adopted in 1974 and has changed remarkably little over time. The 1974 version provided as follows:

(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of this Act shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of this Act, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves.[11]

In 1978, KRS 337.385(1) was revised to read:

(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to [337.275 and] 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of KRS 337.020 to [337.275 and] 337.385, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves.[12]

In 2010, the language was modified to be gender neutral:

(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he or she had reasonable grounds for believing that his or her act or omission was not a violation of KRS 337.020 to 337.285, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.[13]

Finally, in 2013, KRS 337.385 was again revised, primarily to address forced labor, and subsection (1) was split into two sections:

(1) Except as provided in subsection (3) of this section, any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney's fees as may be allowed by the court.

(2) If, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he or she had reasonable grounds for believing that his or her act or omission was not a violation of KRS 337.020 to 337.285, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.[14]

Throughout these revisions, the essential substance of the last sentence – which now reads, “[s]uch action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves” – remained the same.Between 1974 and 1986, there were only a few occasions where putative class actions reached the appellate level in published decisions. In Orms v. City of Louisville,[15] the issue on appeal concerned the application of Kentucky’s overtime compensation statute, KRS 337.285, to a City of Louisville policy that required its police officers to report fifteen minutes before they began their daily tour of duty.[16] The police officers sought to recover, in a class action, compensation for this time.[17] The Jefferson Circuit Court entered summary judgment for the City, and the Court of Appeals agreed, finding that the collective bargaining agreement at issue was controlling.[18]In City of Louisville v. Gnagie,[19] the plaintiffs/employers, individually and as representatives of the Louisville Firefighters’ Association, sought compensation in a class action suit against the City, pursuant to KRS 337.285, for their fifteen-minute “roll call” prior to each shift.[20 ]Both the City and the employees moved for summary judgment in Jefferson Circuit Court on the issue of liability.[21] The trial court entered summary judgment for the City, holding that the “roll call” period was de minimis,[22] and therefore, non-compensable, but the Court of Appeals reversed the Jefferson Circuit Court and remanded the case for an evidentiary hearing to resolve perceived factual disputes regarding the nature of the work performed during “roll call” and to determine whether the firefighters were customarily released from duty prior to the end of their shifts to compensate for the “roll call” period.[23] The Kentucky Supreme Court reversed the Court of Appeals and affirmed the trial court.[24]Given the procedural postures of Orms and Gnagie, each presented obvious issues tailor-made for the City of Louisville’s attempt at a swift resolution. While the City could have raised the argument that class actions are not viable under the Kentucky Act, it clearly had even stronger arguments at its disposal. Unfortunately for the advancement of the law, a pair of Kentucky Court of Appeals cases decided around the same time as Orms and Gnagie obviated the need to address the statutory language. Collectively, Early v. Campbell Fiscal Court[25] and Noel v. Season-Sash, Inc.[26] stand for the general proposition that the Kentucky Labor Cabinet had original and exclusive jurisdiction over claims brought for the recovery of minimum wage and overtime payments, i.e., there was no right to an original action in the circuit court.[27] The Supreme Court did not overrule these cases until 20 years later in Parts Depot, Inc. v. Beiswenger.[28] Only then were litigants permitted to pursue their wage claims either at the Kentucky Labor Cabinet or in a circuit court.[29]Subsequent to the Supreme Court’s decision in Parts Depot, plaintiffs have brought class actions under the Kentucky Act in a number of cases.[30] This note contends that they lack the authority to do so, and defense practitioners, and to a lesser extent the courts, have missed the mark (at least, that is, until November 2013)[31] in failing to properly consider the meaning of the statutory language.

B. An Analysis Of The Plain Language Of KRS 337.385

1. How Kentucky Courts Analyze Statutes

The Kentucky Supreme Court has set forth the following rubric for how statutory language should be reviewed:

The seminal duty of a court in construing a statute is to effectuate the intent of the legislature. A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. Thus, we are “to ascertain the intention of the legislature for words used in enacting statutes rather than surmising what may have been intended but was not expressed.

Thus, if a statute is clear and unambiguous and expresses the legislature’s intent, the statute must be applied as written. And absent an ambiguity, there is no need to resort to the rules of statutory construction in interpreting it. Statutes, of course, must be read as a whole and in context with other parts of the law.[32]

In Revenue Cabinet v. O’Daniel,[33] the Supreme Court similarly noted, ‘“[t]he plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source.”’[34] Furthermore, in Lichtenstein v. Barbanel,[35] the Supreme Court remarked, “[i]f the statutory language is ambiguous, we will look to other sources to ascertain the legislature’s meaning, including legislative history.”[36]

2. Is KRS 337.385(1) of The Kentucky Act Ambiguous?

KRS 337.385 now provides that an employee or employees may sue “for and in behalf of himself, herself, or themselves.”[37] On its face, this language permits multiple individuals to pursue their claims in one proceeding, but not in a representative capacity – an employee or employees may sue only “for and in behalf of himself, herself, or themselves.”[38] The pronouns “himself,” “herself,” and “themselves” are reflexive pronouns, which always refer to, and are identical with, the subject of the sentence or clause.The subject of the statutory text at issue is the “one (1) or more employees” who are maintaining an action in court.[39] The pronouns “himself,” “herself,” and “themselves” refer to the “one (1) or more employees” who are maintaining such an action. A grammatical reading of the passage is:

(i) any one employee may maintain an action for and in behalf of himself;

(ii) any one employee may maintain an action for and in behalf of herself; and

(iii) any two or more employees may maintain an action for and in behalf of themselves.

Of course, it is fair to wonder why the General Assembly chose this particular language. After all, the General Assembly could have simply said something akin to “class actions are not permitted under this statute.” The General Assembly’s choice of words makes sense, however, in light of the federal statute on which it was modeled.

C. A Comparison To Like Statutes

1. The FLSA’s Remedy Mechanism

Kentucky courts have recognized the similarities between the remedy mechanism of the Kentucky Act and that of the FLSA.[40] The Kentucky Act’s remedy mechanism is similar to that of the FLSA, but with one major distinction, as noted below:

(Kentucky Act):

“Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.”[41]

(FLSA):

“An action . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”[42]

2. Kentucky’s Wage Discrimination Because Of Sex Statute

In addition to the FLSA inference, there is an infrequently utilized section in KRS Chapter 337 that addresses wage discrimination based on sex.[43] In principal part, the anti-discrimination provision provides, “[n]o employer shall discriminate between employees in the same establishment on the basis of sex, by paying wages to any employee in any occupation in this state at a rate less than the rate at which he or she pays any employee of the opposite sex for comparable work on jobs which have comparable requirements relating to skill, effort and responsibility.”[44] The anti-discrimination provision is enforced by a subsequent provision providing, “[a]ction to recover the liability may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves and other employees similarly situated.”[45]

D. The Opposing View

Perhaps the most potent argument is that the language of the statute does not, in ordinary words, preclude class relief, e.g., “class actions may not be maintained under this section.” In Califano v. Yamasaki,[46] the U.S. Supreme Court considered whether a statute that provided, “[a]ny individual, after any final decision of the Secretary made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action . . . .”[47] The court found the use of the ambiguous phrase “any individual” did not express the clear congressional intent to preclude class actions.[48]Another argument focused on the potential interplay between Kentucky Rule of Civil Procedure Rule (CR) 1 and 23. Rule 1 provides that the civil rules “govern procedure and practice in all actions of a civil nature . . . .”[49] In other words, there is a potential conflict between the judiciary’s adoption of civil rules permitting class actions and the legislature’s enactment of a statute that takes away the right to class actions. A number of other states have similar civil rules yet practically every state legislature, including Kentucky’s, has placed some form of a substantive restriction on the class action device.[50]Finally, the fact that a number of Kentucky courts, primarily Kentucky federal courts, have considered claims under the Act without taking issue with the ability to pursue a class action under the Act lends support, however small, to the position that the Act permits class actions.[51]

III. The Kentucky Court of Appeals Weighs in, Albeit in Dicta

In 2013, the Kentucky Court of Appeals had occasion to consider the argument that the Kentucky Act precludes class actions.[52] It did so in the context of litigation that had spanned fifteen years between Toyota Motor Manufacturing, Inc. (”TMMK”), represented by the authors of this piece,[53] and employees/former employees of its paint and bumper paint departments who claimed they were not compensated for time spent putting on and taking off a paint suit and walking to and from their work processes.[54] The Plaintiffs pursued their case as a class action, and millions of dollars in damages were potentially at issue given that the class could number over 1,000 members of TMMK’s paint and bumper paint departments.[55] This potential exposure only increased in 2007 when the Scott Circuit Court reopened the judicial case that had been final since 2003, in light of Parts Depot.[56]After a lengthy appellate process, the case returned to the Scott Circuit Court.[57] There, TMMK asserted the argument that the Kentucky Act does not provide for class actions, and, after the Scott Circuit Court denied its motion to dismiss on those grounds, re-asserted the argument in opposition to the Plaintiffs’ motion for class certification.[58] Once Plaintiffs’ motion was granted, TMMK was able to avail itself of a recent change in the civil rules that permitted litigants to make an interlocutory appeal of a grant or denial of class certification.[59]The Kentucky Court of Appeals primarily addressed the point that it agreed with TMMK that the Scott Circuit Court should not have reopened the case.[60] In dicta, though, the Court of Appeals stated:

However, were we to reach the merits of this argument, we would agree with TMMK that the text of KRS 337.385(1) provides a clear expression of intent that class actions are not permitted . . . The statute permits more than one person to bring a cause of action under KRS 337.385(1) in the same case, but they may not do so in a representative capacity. Further, the effect of the “for and in behalf of” language is to limit the individuals who may participate in an action under the Act to those who actually bring the action. Thus, even if the trial court had properly reopened the case under CR 60.02(f), KRS 337.385(1) does not permit class actions and the trial court improperly certified a class.[61]

The very next month, the Jefferson Circuit Court likewise found in favor of Humana Inc., also represented by Fisher & Phillips, who argued the same position regarding the statutory language.[62] That opinion, however, is not binding on any other Kentucky court and did not substantively address the arguments outlined above.

IV. The Kentucky Court of Appeals Was Correct, But a More Comprehensive Opinion is Needed

While the opinions of the Court of Appeals and the Jefferson Circuit Court reached the correct result, neither opinion thoroughly reviewed all of the arguments supporting the position that the Kentucky Act does not permit class actions. The most critical argument is, of course, the plain text. None of the readings of KRS 337.385(1) outlined above supports a conclusion that employees may sue for and in behalf of anyone else, that is, for and in behalf of anyone who has not also commenced an “action” to assert his or her own rights under the Act. While more than one person may bring a cause of action under the Kentucky Act, the language of KRS 337.385(1), on its face, bars them from doing so in a representative capacity. Given Kentucky law holding that the plain text controls absent ambiguity, this should resolve the issue.But given the support from extrinsic sources, it makes sense for a court to consider those sources as well. The Kentucky Act’s phrasing negating the class action device makes perfect sense when read in conjunction with the FLSA. Moreover, the Kentucky General Assembly adopted KRS 337.427, a section of the Kentucky Wage Discrimination Because of Sex statute, in 1966, eight years prior to its adoption of KRS 337.385.[63] Thus, it cannot be said the Kentucky General Assembly was unaware of the “for and in behalf of” language when it adopted KRS 337.385(1) in 1974.It is fair to wonder, however, whether the 1974 General Assembly somehow inadvertently omitted the “and other employees similarly situated” language included in the FLSA. Of course, Kentucky has long-recognized the “primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned.”[64] In Fox v. Grayson,[65] the Kentucky Supreme Court noted, “[w]e cannot dismiss the notable omission of language . . . as a mere accidental oversight. It is well settled law that a court may not add language to the written law to achieve a desired result.”[66] Similarly, in Rue v. Ky. Ret. Sys.,[67] the Kentucky Court of Appeals stated, “[w]e are not free to add words to statutory enactments in order to enlarge their scope beyond that which can be gleaned from a reading of the words used by the legislature.”[68]The Kentucky Supreme Court has a history of adhering to the slight differences in language in related statutes – a point that could easily be highlighted in any opinion on the Kentucky Act. In Kentucky Department of Corrections v. McCullough,[69] the Kentucky Supreme Court considered two different provisions of the Kentucky Civil Rights Act. At issue was the availability of punitive damages, specified in one provision but not the other:

(Kentucky Civil Rights Act – Employment Discrimination):

In the employment discrimination context, permitting recovery for “actual damages sustained.”[70]

(Kentucky Civil Rights Act – Housing Discrimination):

In the housing discrimination context, permitting recovery for “punitive damages.”[71]

When faced with this obvious disparity in language, the Kentucky Supreme Court rejected the Court of Appeals’ “policy-oriented approach,” which allowed for recovery of punitive damages under the employment discrimination remedy provision of KRS 344.[72] Instead, the Court reversed and found, inter alia, that “in construing statutes it must be presumed that the Legislature intended something by what it attempted to do.”[73]A more recent case provides another compelling example of the power of precise statutory language. In Griffin v. Rice,[74] the issue was who would receive the deceased’s estate, his mother or his wife.[75] The answer turned on the Kentucky Supreme Court’s interpretation of KRS 392.090(2), which provided that a spouse who voluntarily leaves the other and “lives in adultery” forfeits his or her right to an interest in the other’s estate of property.[76] The proof at trial showed that the deceased’s wife engaged in one act of sexual intercourse with another man, which happened to be the night prior to the deceased’s death.[77]In concluding that the phrase “lives in adultery” requires proof of more than one sexual act, the Court noted Kentucky’s former fault-based divorce statute contained different phrasing depending upon the party seeking the divorce.[78] According to the prior statute – which while concededly dated and sexist is nevertheless instructive for this limited purpose – a husband or a wife could obtain a divorce on the grounds that the other was “living in adultery with another man or woman,” but, according to another provision, a husband could also obtain a divorce on the grounds of “adultery by the wife.”[79] In finding for the wife, Griffin focused on the difference in language and stated:

Had the General Assembly considered one instance of adultery sufficient to bar a husband or wife from his or her interest in the other spouse’s estate and property, it would have made this clear by employing different wording in the statute, such as “commits adultery” or “engages in adultery.” Another statute, in effect at the same time as the statute at issue, indicates the General Assembly was aware of the import of its phrasing and knew exactly how to distinguish between one adulterous act and multiple acts of adultery. . . . The language chosen by the General Assembly in the contemporaneous divorce statute makes clear the legislature was aware of the significance of its phrasing and was able, had it meant to do so, to employ language that indicated one act of adultery would be sufficient to bar a husband or wife from his or her interest in the other spouse’s estate and property.[80]

Taken together, McCullough and Griffin stand for the proposition that different word choices in closely related statutes must be given effect. The General Assembly clearly understands the import of even slight word changes, and the Supreme Court has read those words literally, regardless of the outcome. In Griffin, that approach arguably had real and negative consequences – rewarding the unfaithful wife at the expense of the deceased’s mother.By contrast, there are no such negative consequences to the General Assembly’s choice to omit the critical and dispositive phrase “and other employees similarly situated.” Any individual who wants to pursue a claim under the Kentucky Act may do so, regardless of whether class actions are permitted. That has been, and will always be, the case. Employees simply will be unable to do so in any type of representative action.In other words, the only individuals truly harmed by this argument are the plaintiffs’ bar. Ultimately, though, the plaintiffs’ bar could have the opportunity to alter this outcome, despite the plain language of the Kentucky Act.

V. The Court of Appeals Provided a Roadmap for How This Issue Should Be Resolved in an Earlier Case

In 2005, the Court of Appeals in City of Somerset v. Bell[81] correctly read a statute as providing for class actions, and later that same year, the General Assembly, disagreeing with that conclusion, amended the statute. In City of Somerset, the Court of Appeals cited a line of precedent spanning more than 70 years which interpreted the statute at issue in that case, KRS 134.590(6), and its predecessor statute, as not allowing for class relief because it provided “[n]o refund shall be made unless application is made in each case within two (2) years from the date payment was made.”[82]City of Somerset noted that line of precedent was called into question due to a 1996 statutory amendment to KRS 134.590(6) which deleted the words “in each case.”[83] This amendment allowed the plaintiff taxpayers to argue the statute now permitted class actions.[84] The Court agreed with the taxpayers, citing Kentucky law providing, “[w]here a statute is amended or re-enacted in different language, it will not be presumed that the difference between the two statutes was due to oversight or inadvertence on the part of the Legislature. On the contrary, it will be presumed that the language was intentionally changed for the purpose of effecting a change in the law itself.”[85] Given this guidance, the court concluded:

Considering the historical significance of that phrase [in each case], beginning in the Swiss Oil case, we must conclude that the intent of the legislature was to amend that portion of the statute limiting refunds for ad valorem taxes to individual claims. Even if the change was unintentional, its effect was to alter key language of a statute, which, for some seventy years before the amendment, had been interpreted by the courts to limit tax refunds to individual claims.[86]

The General Assembly became aware of this result, and, later that very same year (2005), enacted new language to make clear its intent that class actions are not permissible.[87] The statute now reads, “[n]o refund shall be made unless each taxpayer individually applies . . .”[88]City of Somerset provides a model for how statutes should be reviewed. The absence of the phrase “in each case” was critical and dispositive in that case. It would have been more than a little odd for the Court to deny the availability of the class action mechanism to the taxpayers in 2005, given how the statute read at that time. But the General Assembly did not want taxpayers to be able to proceed as a class, so it took away that ability through an amendment to the statute’s text. If the General Assembly believes class actions are appropriate under the Kentucky Act, it will presumably do likewise here, once a Kentucky court definitively decides this issue. Absent that, it would be inappropriate for the judiciary to read into the Kentucky Act what is not there – either by consideration of the plain language or from the context of similar statutes.

[1] Jeff Savarise and Tim Weatherholt are partners in the Louisville office of Fisher & Phillips LLP, a national labor and employment law firm representing employers. Jeff is a 1982 graduate of John Carroll University and a 1985 graduate of the University of Akron School of Law. Tim is a 2001 graduate of Transylvania University and a 2004 graduate of Vanderbilt Law School.[2] Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 862 (9th Cir. 1977); 29 U.S.C. § 216(b) (2008).[3] See, e.g., Andrew C. Brunsden, Hybrid Class Actions, Dual Certification, and Wage Law Enforcement in the Federal Courts, 29 Berkeley J. Emp. & Lab. L. 269, 292–94 (2008).[4] See, e.g., Alaska Stat. § 23.10.110(b) (2012) (“An action to recover from the employer the wages and damages for which the employer is liable may be maintained in a competent court by an employee personally and for other employees similarly situated, or an employee may individually designate in writing an agent or representative to maintain an action for the employee.”); Haw. Rev. Stat. § 387-12(c) (2008) (“Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of oneself or themselves and other employees similarly situated, or the employee or employees may designate an agent or representative to maintain action for and in behalf of all employees similarly situated.”); N.H. Rev. Stat. Ann. 275:53(1) (2008) (“Action by an employee to recover unpaid wages and/or liquidated damages may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf or himself, or themselves, or such employee or employees may designate an agent or representative to maintain such action.”).[5] See, e.g., Minn. Stat. § 177.27(8) (2006) (“An employee may bring a civil action seeking redress . . . .”).[6] See, e.g., Braun v. Wal-Mart, Inc., No. 19-CO-01-9790, 2003 WL 22990114, at *3 (D. Minn. 2003) (certifying class in connection with working off the clock and through break and meal periods on breach of contract and other theories).[7] The Kentucky Act provides in pertinent part: “Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.” Ky. Rev. Stat. Ann. § 337.385(2) (West Supp. 2014).[8] See. e.g., Whitlock v. FSL Mgt., LLC, No. 3:10CV-00562-JHM, 2012 WL 3274973, at *14 (W.D. Ky. 2012), Hughes, v. UPS Supply Chain Solutions, Inc., Nos. 2012-CA-001353-ME, 2012-CA-001757-ME, 2013 WL 4779746, at *7 (Ky. Ct. App. 2013); England v. Adv. Stores Co., Inc., 263 F.R.D. 423, 458 (W.D. Ky. 2009); Barker v. Family Dollar, Inc., No. 3:10-CV-00170-H, 2012 WL 5305335, at *1 (W.D. Ky. 2012); McCauley v. Family Dollar, Inc., No. 3:10-CV-363-S, 2010 WL 3221880, at *1 (W.D. Ky. 2010).[9] Ky. Rev. Stat. Ann. § 413.120(2) (2006).[10] 29 U.S.C. § 255 (2011).[11] Ky. Rev. Stat. Ann. § 337.385 (1974) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).[12] Ky. Rev. Stat. Ann. § 337.385 (1978) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).[13] Ky. Rev. Stat. Ann. § 337.385 (2010) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).[14] Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014).[15] Orms v. City of Louisville, 686 S.W.2d 464 (Ky. Ct. App. 1984).[16] Id. at 465.[17] Id.[18 ] Id.[19] City of Louisville v. Gnagie, 716 S.W.2d 236 (Ky. 1986).[20] Id. at 237.[21] Id. at 236–37.[22] De minimis is a Latin expression meaning about minimal things. It is commonly used by courts as a basis to not count certain small increments of time and the beginning and end of a workday that may otherwise be compensable.[23] Gnagie, 716 S.W.2d at 237.[24] Id.[25 ]Early v. Campbell Cnty. Fiscal Court, 690 S.W.2d 398 (Ky. Ct. App. 1985).[26] Noel v. Season-Sash, Inc., 722 S.W.2d 901 (Ky. Ct. App. 1986).[27] See id. at 903 (To reiterate, the Commissioner of Labor has original jurisdiction, as held in the Early case, only in those wage and hour disputes in which the duty to provide the benefits sought by the claimant derives solely from the statute . . . .”).[28] Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 356 (Ky. 2005).[29] See id. at 361–62.[30] See, e.g., Barker v. Family Dollar, Inc., No. 3:10-CV-00170-H, 2012 WL 5305335, at *1 (W.D. Ky. Oct. 25, 2012); Whitlock v. FSL Mgmt., LLC, No. 3:10-CV-00562-JHM, 2012 WL 3274973, at *1 (W.D. Ky. Aug. 10, 2012); McCauley v. Family Dollar, Inc., No. 3:10-CV-363-S, 2010 WL 3221880, at *1 (W.D. Ky. Aug. 12, 2010); England v. Advance Stores Co., 263 F.R.D. 423 (W.D. Ky. 2009); Hughes v. UPS Supply Chain Solutions, Inc., Nos. 2012-CA-001353-ME, 2012-CA-001757-ME, 2013 WL 4779746, at *1 (Ky. Ct. App. Sept. 6, 2013).[31] See infra notes 52–63 and accompanying text.[32 ]Hall v. Hospitality Res., 276 S.W.3d 775, 784 (Ky. 2008) (citations omitted).[33] Revenue Cabinet v. O’Daniel, 153 S.W.3d 815 (Ky. 2005).[34] Id. at 819 (citing Ronald Benton Brown & Sharon Jacobs Brown, Statutory Interpretation: The Search for Legislative Intent § 4.2, at 38 (2002)).[35] Lichtenstein v. Barbanel, 322 S.W.3d 27 (Ky. 2010).[36] Id. at 34–35 (citing MPM Financial Group Inc. v. Morton, 289 S.W.3d 193, 198 (Ky. 2009)).[37] Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014).[38] Id.[39] Id.[40] See Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 358 (Ky. 2005).[41] Ky. Rev. Stat. Ann. § 337.385 (West 2014).[42] 29 U.S.C. § 216 (2012) (emphasis added).[43] Kentucky’s Wage Discrimination Because of Sex provisions are located at Ky. Rev. Stat. Ann §§ 337.420—337.433 (West 2014).[44] Ky. Rev. Stat. Ann §§ 337.423(1) (West 2014).[45] Ky. Rev. Stat. Ann §§ 337.427(2) (West 2014) (emphasis added).[46] Califano v. Yamasaki, 442 U.S. 682 (1979).[47] Id. at 698 n. 12.[48] Id. at 700.[49] Ky. R. Civ. P. 1(2).[50] (Class Action not permitted—31 states) See, e.g., Ala. Code § 8-19-10(f) (2014); Ariz. Rev. Stat. Ann. § 33-712(C) (2014); Ark. Code Ann. § 4-87-103 (West 2014); Conn. Gen. Stat. § 36a-740 (West 2014); Fla. Stat. § 624.155(6) (West 2014); Ga. Code. Ann. § 7-4-21 (West 2014); Haw. Rev. Stat. § 477E-4(b) (West 2014); Idaho Code Ann. § 28-45-201(1) and (3) (West 2014); 740 Ill. Comp. Stat. 10/7(2) (West 2014); Iowa Code § 537.5203(1) (West 2014); Kan. Stat. Ann. § 50-634(b) (West 2014); Ky. Rev. Stat. 134.590(6) (West 2014); La. Rev. Stat. Ann. § 51:1409(A) (2014); Mich. Comp. Laws § 445.1611(1) (2014); Minn. Stat. § 325M.07 (2014); Miss. Code Ann. § 75-24-15(4) (West 2014); Mont. Code Ann. § 30-14-133(1) (West 2013); Neb. Rev. Stat. § 77-2793(1) (2014); N.H. Rev. Stat. Ann. § 359-H:4 (2014); N.J. Stat. Ann. § 46:10B-29(a)(2) (West 2014); N.C. Gen. Stat. § 75C-5 (2014); Okla. Stat. tit. 36 § 6595; Or. Rev. Stat. § 238.362(4)(a) (2014); 73 Pa. Cons. Stat. § 2208(d) (2014); R.I. Gen Laws § 15-7.2-5(b) (2014); S.C. Code Ann. § 40-39-160(1) (2013); S.D. Codified Laws § 10-47B-131.2 (2014); Tenn. Code Ann. § 56-47-108(a)(2) (West 2014); Tex. Bus. & Com. Code Ann. § 605.005 (West 2013); Utah Code Ann. § 13-37-203(3) (West 2014); Wash. Rev. Code § 63.60.070(3) (2014). (Class Action Limited – 15 states) See, e.g., Cal. Civ. Code § 1787.3(b) (West 2014); Col. Rev. Stat. § 6-1-113(2) (2014); Ind. Code 9-32-12-4(c) (2014); Me. Rev. Stat. tit. 32, § 11054(c)(2) (2014); Md. Code Ann. § 12-707(c) (West 2014); Mass. Gen. Laws ch. 140D, § 32(a)(2)(b) (2014); Mo. Rev. Stat. § 71.675(2) (2014); Nev. Rev. Stat. § 38.255(3)(b) (2014); N.M. Stat. Ann. § 58-16-15(B) (West 2014); N.Y. Gen. Oblig. Law § 5-702(a)(2) (McKinney 2014); Ohio Rev. Code Ann. § 1351.08(A)(2)(b)(ii) (West 2014); Va. Code Ann. § 8.01-316(A)(2) (West 2014); W. Va. Code § 6C-2-3(e)(2) (2014); Wis. Stat. § 426.110(3) (2013); Wyo. Stat. Ann. § 40-19-119(a)(iii) (2014).[51] See Ky. Rev. Stat. Ann. § 413.120(2) (West 2014).[52] Toyota Motor Mfg, Kentucky, Inc. v. Kelley, et al., No. 2012-CA-001508-ME, 2013 WL 6046079 (Ky. Ct. App. Nov. 15, 2013).[53] As co-author Jeff Savarise tells the story, he locked himself in his office, determined to develop an argument that would allow TMMK to prevail in this case. When he emerged, he posited the heretofore novel theory that that Kentucky Act does not permit class actions. Just as in Orms and Gnagie, there were other arguments to present on appeal, but this novel argument provided an extra layer of security in the correctness of our position.[54] TMMK, 2013 WL 6046079, at *1.[55] Id.[56] Id. at *2.[57] Id. at *2.[58] Id. at *3–4.[59] Ky. R. Civ. P. 23.06, which became effective on January 1, 2011, provides, “[a]n order granting or denying class action certification is appealable within 10 days after the order is entered. . .”[60] TMMK, 2013 WL 6046079, at *8–9.[61] Id. at *9.[62] See Brown v. Humana Inc. and Humana Ins. Co., No. 13-CI-002422 (Ky. Cir. Ct. Dec. 5, 2013).[63] Ky. Rev. Stat. Ann. § 337.427 (West 1966).[64] Smith v. Wedding, 303 S.W.2d 322, 323 (Ky. 1957) (citation omitted).[65] Fox v. Grayson, 317 S.W.3d 1 (Ky. 2010).[66] Id. at 8.[67] Rue v. Ky. Ret. Sys., 32 S.W.3d 87 (Ky. Ct. App. 2000).[68] Id. at 89.[69] Kentucky Department of Corrections v. McCullough, 123 S.W.3d 130 (Ky. 2003).[70] Ky. Rev. Stat. Ann. § 344.450 (West 1974).[71] Ky. Rev. Stat. Ann. § 344.660 (West 1991); Ky. Rev. Stat. Ann. § 344.665 (West 1992).[72] McCullough, 123 S.W.3d at 139.[73] Id. at 140 (emphasis added).[74] Griffin v. Rice, 381 S.W.3d 198 (Ky. 2012).[75] Id.at 200.[76] Id. at 201.[77] Id. at 199.[78] Id. at 202–03.[79] Id. at 202.[80] Id. at 202–03.[81] City of Somerset v. Bell, 156 S.W.3d 321 (Ky. Ct. App. 2005).[82] Id. at 326 (citing Swiss Oil Corp. v. Shanks, 270 S.W. 478 (Ky. 1925); Bd. of Educ. of Fayette County v. Taulbee, 706 S.W.2d 827 (Ky. 1986); Bischoff v. City of Newport, 733 S.W.2d 762 (Ky. Ct. App. 1987)) (emphasis in original).[83] Id. at 326.[84] Id. [85] Id. at 327 (citing Eversole v. Eversole, 185 S.W. 487, 489 (1916)).[86] Id. at 326–27.[87] Ky. Rev. Stat. Ann. § 134.590(6) (West 1992).[88] Id. (Emphasis added).