At&t Corp. v. Donna Felter, Individually, 2020 CA 001500

AT&T maintained an outdoor telecommunications service terminal on or adjacent to Donna Feltner’s property and applied a pesticide called “Rainbow Weed Killer” around its equipment to control vegetation.
In June 2015 Feltner reported dying plants in her garden; AT&T’s manager inspected and observed distress around the equipment but not in the garden.
Kentucky Department of Agriculture soil testing found two active ingredients from Rainbow Weed Killer in Feltner’s soil at concentrations higher than appropriate and issued notices of violation to AT&T for licensing and label-use violations.
In September 2016 Feltner filed a class action alleging trespass, nuisance, negligence, negligence per se, and strict liability on behalf of “all real property owners in the Commonwealth of Kentucky on whose real property Defendants committed trespass, nuisance and/or negligent property damage due to the unlawful use of Rainbow Weed Killer pesticides.”
The Franklin Circuit Court certified the class; AT&T appealed, arguing (among other things) the class was an impermissible “fail-safe” class and did not meet CR 23.01/23.02.
The Court of Appeals vacated the class-certification order and remanded, holding the class definition was an impermissible fail-safe class because membership depended on the ultimate merits (i.e., a finding that AT&T committed the alleged torts).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the proposed class definition is an impermissible "fail-safe" class	Feltner argued class definition (owners "on whose real property Defendants committed trespass, nuisance and/or negligent property damage") is sufficiently objective and like permissible definitions in prior cases	AT&T argued the definition predicates membership on the merits—i.e., a finding that AT&T committed torts—making it fail-safe	Held: The definition is a fail-safe class and impermissible because membership depends on ultimate liability findings
Whether the proposed class satisfied CR 23.01 and 23.02 requirements for certification	Feltner maintained the class met certification prerequisites (commonality, typicality, adequacy, etc.)	AT&T contended the class failed Rule 23 requirements and was procedurally defective	Not reached on merits—court vacated certification on fail-safe ground and did not decide remaining CR 23 contentions

Sowders v. Atkins, 646 S.W.2d 344 (Ky. 1983) (appellate standard for reviewing class certification is abuse of discretion)
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky. 2000) (describing abuse-of-discretion review and limits on appellate reversal)
Hensley v. Haynes Trucking, LLC, 549 S.W.3d 430 (Ky. 2018) (discusses and rejects impermissible fail-safe class definitions)
Manning v. Liberty Tire Servs. of Ohio, LLC, 577 S.W.3d 102 (Ky. App. 2019) (explains when class definitions tied to geographic or objective criteria are not fail-safe)
Randleman v. Fidelity Nat. Title Ins. Co., 646 F.3d 347 (6th Cir. 2011) (illustrative Sixth Circuit decision defining fail-safe class doctrine)