Am. Express Travel Related Servs. Co. v. Commonwealth

• Decision Date: 17 September 2013
• Docket Number: No. 12–6249.,12–6249.
• Citation: 730 F.3d 628
• Parties: AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., A New York Corporation, Plaintiff–Appellant, v. Commonwealth of KENTUCKY, Kentucky Department of the Treasury, Defendant, Todd Hollenbach, Treasurer, in his official capacity, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

730 F.3d 628

AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., A New York Corporation, Plaintiff–Appellant,

v.Commonwealth of KENTUCKY, Kentucky Department of the Treasury, Defendant,Todd Hollenbach, Treasurer, in his official capacity, Defendant–Appellee.

No. 12–6249.

United States Court of Appeals,Sixth Circuit.

Argued: July 23, 2013.

Decided and Filed: Sept. 17, 2013.

ARGUED:Walter L. Sales, Stoll Keenon Ogden PLLC, Louisville, Kentucky, for Appellant. Brian T. Judy, Office of The Kentucky Attorney General, Frankfort, Kentucky, for Appellee. ON BRIEF:Walter L. Sales, Timothy J. Eifler, K. Timothy Kline, Stoll Keenon Ogden PLLC, Louisville, Kentucky, Paul C. Harnice, Sarah Jackson Bishop, Stoll Keenon Ogden PLLC, Frankfort, Kentucky, for Appellant. Brian T. Judy, Angela C. Evans, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee.

Before: SILER and COLE, Circuit Judges; DOWD, District Judge. ^*

OPINION

SILER, Circuit Judge.

Plaintiff American Express Travel Related Services Co., Inc. (“AmEx”) appeals the grant of summary judgment in favor of defendant Todd Hollenbach, Treasurer of the Commonwealth of Kentucky, in this action challenging the retroactivity and constitutionality of an amendment to Kentucky Revised Statute (KRS) § 393.060(2), which shortened the presumptive abandonment period for traveler's checks (“TCs”) from fifteen to seven years (the “Amendment”). For the reasons that follow, we AFFIRM the district court, and REMAND for entry of judgment in accordance with this decision.

I.

AmEx is the world's largest issuer of TCs, which are preprinted checks in fixed dollar amounts that are sold in every state of the United States and worldwide. The business relies on the universal recognition and acceptance of TCs, which never expire. AmEx and third-party vendors sell TCs at face value, and AmEx profits by investing the funds until the TC is redeemed. Although most TCs are cashed within a year, AmEx uses the remaining uncashed TCs for long-term, high-yield investments. Until recently, every state's abandoned property laws imposed a presumption of abandonment on uncashed TCs at fifteen years after issuance. This presumption requires the issuer to transfer possession of the funds to the state.

The Kentucky General Assembly amended KRS § 393.060(2) in 2008 to change Kentucky's abandonment period from fifteen to seven years.¹ AmEx subsequently filed suit against Hollenbach, claiming that the Amendment violates the Due Process Clause, the Contract Clause, and the Takings Clause of the United States Constitution. Initially, the district court granted summary judgment for AmEx, finding that the Amendment violated the Due Process Clause because the legislative purpose of raising revenue did not satisfy rational basis review. Am. Express Travel Related Servs. Co. v. Hollenbach, 630 F.Supp.2d 757, 760–64 (E.D.Ky.2009). On appeal, we held that the Amendment, applied prospectively, did not violate the Due Process Clause and remanded the case to the district court to consider AmEx's remaining claims. Am. Express Travel Related Servs. Co., Inc. v. Kentucky, 641 F.3d 685, 694–95 (6th Cir.2011).

On remand, after AmEx amended its complaint to add a dormant Commerce Clause argument, the parties filed cross-motions for summary judgment. In its motion for summary judgment, AmEx additionally argued that the legislation did not apply retroactively so as to affect TCs that were issued and outstanding prior to the effective date of the Amendment. The district court denied AmEx's motion and granted Hollenbach's motion. Am. Express Travel Related Servs. Co., Inc. v. Hollenbach, No. 3:08–58–DCR, 2012 WL 4023709, at *1 (E.D.Ky. Sept. 12, 2012). AmEx now appeals.

II.

AmEx raises multiple issues on appeal. In addition to disputing whether the Amendment has prospective or retroactive applicability under Kentucky law, it argues that the provision violates the Commerce Clause. We do not reach AmEx's other constitutional arguments, which are based on retroactive application, because we find, for the reasons stated below, that the Amendment is substantive and applies only prospectively. Finally, Hollenbach raises the issue of collateral estoppel based on litigation AmEx brought in New Jersey in 2010, after that state changed its presumptive abandonment period from fifteen to three years.

We review de novo a district court's grant of summary judgment based on whether a state statute violates the U.S. Constitution. Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 431 (6th Cir.2008).

III.

As a threshold matter, we first review the claim of issue preclusion Hollenbach raised against AmEx. He argues that collateral estoppel prohibits AmEx from raising the same claims it unsuccessfully litigated against New Jersey in American Express Travel Related Services, Inc. v. Sidamon–Eristoff, 669 F.3d 359 (3d Cir.2012). After New Jersey passed a statute changing the presumptive abandonment period from fifteen to three years, AmEx sought a preliminary injunction against the New Jersey Treasurer. It argued that the amendment violated the Due Process Clause, the Contract Clause, the Takings Clause, and the Commerce Clause of the federal Constitution. Id. at 366. The Third Circuit held that AmEx could not show a likelihood of success on the merits of its claims and affirmed the district court's order denying preliminary injunctive relief. Id. at 374.

Denials of preliminary relief are generally not given preclusive effect. Abbott Labs. v. Andrx Pharms., Inc., 473 F.3d 1196, 1205–06 (Fed.Cir.2007). This is so because “the prior proceeding must have resulted in a final judgment on the merits” in order to be accorded preclusive effect. Pfeil v. State St. Bank & Trust Co., 671 F.3d 585, 601 (6th Cir.2012) (quoting Kosinski v. Comm'r, 541 F.3d 671, 675 (6th Cir.2008)). Because the Third Circuit's holding was specifically based on the “likelihood of success on the merits,” and because a different state's law played an integral part in most of AmEx's claims, which makes the precise issues raised here different, Sidamon–Eristoff cannot be given preclusive effect. See Sidamon–Eristoff, 669 F.3d at 366–68.

IV.

AmEx argues that the amendment to KRS § 393.060(2) can only apply prospectively. The basis for AmEx's position is that the Amendment did not include an express declaration of retroactivity as required by KRS § 446.080(3), and the provision is substantive, rather than remedial. Conversely, Hollenbach argues the Amendment is remedial in nature and, therefore, should be interpreted as applying retroactively.

Kentucky law governing statutory construction states that “[n]o statute shall be construed to be retroactive, unless expressly so declared.” KRS § 446.080(3). The Kentucky Supreme Court has noted that this rule should be “strictly construed.” Hamilton v. Desparado Fuels, Inc., 868 S.W.2d 95, 97 (Ky.1993). Moreover, the Kentucky Supreme Court has held that although substantive legislation is presumed to be prospective, remedial legislation does not fall within the general rule against retroactive application. Commonwealth Dep't of Agric. v. Vinson, 30 S.W.3d 162, 168 (Ky.2000); Peabody Coal Co. v. Gossett, 819 S.W.2d 33, 36 (Ky.1991). Kentucky courts have defined remedial legislation as providing “no more than the expansion of an existing remedy without affecting the substantive basis, prerequisites, or circumstances giving rise to the remedy.” Ky. Ins. Guar. Ass'n v. Jeffers ex rel. Jeffers, 13 S.W.3d 606, 609 (Ky.2000). On the other hand, substantive legislation “change[s] and redefine[s] the out-of-court rights, obligations and duties of persons in their transactions with others.” Vinson, 30 S.W.3d at 168.

The Amendment does not expressly declare that the change was meant to be applied retroactively. Indeed, House Bill 704, which contained the Amendment, did not list an effective date and does not discuss retroactivity for § 12, the applicable section. 2008 Ky. Acts 132 § 12. By contrast, House Bill 704 does note that §§ 8–11 are retroactive to all outstanding claims and that § 7 has an effective date of August 1, 2008. Id. at §§ 15–16. This suggests that the legislature knew how to express retroactivity and effective dates, but chose not to when amending KRS § 393.060(2). Moreover, when the General Assembly repealed and reenacted the Amendment in 2009,² it declined the opportunity to make the provision fully retroactive, instead declaring its intention that the provision be applied retroactively only to April 24, 2008, the original effective date of the 2008 Amendment. 2009 Ky. Acts 86 § 17. If the legislature had meant for the provision to be fully retroactive to all outstanding TCs, it could have simply stated so, as it did in § 15 of the same bill regarding outstanding tax refund claims. 2009 Ky. Acts 86 § 15.

Because the General Assembly did not expressly declare the Amendment to be retroactive, the provision may only apply to TCs issued before the enactment date if it is remedial rather than substantive under Kentucky law. According to the standard in Jeffers, the Amendment is not remedial because it is not limited to improving an existing remedy. Instead, it affects the prerequisites and circumstances giving rise to the remedy. See Jeffers, 13 S.W.3d at 609–10. Specifically, it alters the amount of time required for the presumptive abandonment of TCs, from fifteen to seven years. Moreover, like the amendment in Vinson, the Amendment here has clearly “change[d] and redefine[d]” AmEx's “obligations and duties” in its TC transactions. Vinson, 30 S.W.3d at 168. Because the Amendment must be considered substantive, it is to be applied only prospectively from April 24, 2008.

The district court assumed that the Amendment was retroactive and then held it was not unconstitutional. However, because we have decided the retroactive issue, we need not address the constitutional issues related to that assumption, that...