Showing 2 posts in Kentucky.
Kentucky Civil Rule 23, which governs class actions procedures in Kentucky state court actions, contains an important provision that will change the way defendants approach class action settlements. The provision, CR 23.05(6), became effective in 2014. It provides that when the parties create a class action settlement fund, at least 25% of any remaining funds that are not distributed or used to cover fees and costs must go to a Kentucky legal aid IOLTA account. The rule, a potential boon to public legal aid and plaintiffs lawyers, forces defendants to structure class action settlement more carefully or else they risk paying a sizeable settlement tax. Read More ›
Class Certification for Nuisance Claims is Nearly Impossible After Powell v. Tosh’s Analysis of Rule 23’s Commonality Requirement
Plaintiffs seeking class certification for environmental nuisance actions face an uphill battle in Kentucky’s federal courts after Powell v. Tosh, 5:09-CV-00121, 2013 WL 4418531 (W.D. Ky. Aug. 2, 2013). In Powell, a district court decertified a class of Kentucky residents who filed nuisance claims against a neighboring hog farm, concluding that evidentiary developments showing the residents did not all suffer the same injury destroyed the “commonality” requirement, making class certification unavailable under Fed. R. Civ. P. 23 (“Rule 23”). This ruling indicates that plaintiffs seeking class certification for nuisance claims under Rule 23 face a difficult burden because of the individualized showing necessary to prove “commonality,” which may be persuasive to other federal district courts analyzing Rule 23 nuisance class actions. Read More ›
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Stephen E. Embry is a member of the Firm's class action, privacy and mass tort groups. He frequently defends participants in consumer class actions and mass tort litigation. Stephen is a national litigator and advisor who is experienced in developing solutions to complex litigation and corporate problems.