FRANKFORT, Ky. (Legal Newsline) - Class action lawyers targeting AT&T for using weedkiller around service terminals have hit another snag.
The Kentucky Court of Appeals on Oct. 6, for a second time, struck down class certification in a lawsuit against AT&T and BellSouth Telecommunications. The first time, lawyers sought an improper "fail-safe" class, which Franklin Circuit Court Judge Thomas Wingate granted.
But the Court of Appeals ruled it improper, leading to an amended complaint. Wingate again granted class certification, but the Court of Appeals' most recent ruling said he failed to make several findings mandated by Kentucky Rules of Civil Procedure.
"The circuit court did not... mention or make any findings regarding the elements of typicality and adequacy of representation," the appeals court ruled.
"The circuit court's order approves the class definition, but does not define class claims, issues or defenses except in its discussion of the commonality requirement. The order does not appoint class counsel."
At issue is AT&T's use of "Rainbow Weed Killer at service terminals across Kentucky that are located on the property of third parties, like named plaintiff Donna Feltner.
Feltner said plants in her garden were dying, though an area manager for AT&T said he observed distressed areas around the company's equipment but not her garden. She contacted the state Department of Agriculture, which found two active ingredients from the weedkiller in her soil.
She sued AT&T in 2016, citing claims of nuisance, trespass, negligence and strict liability. The initial class certified in the trial court was overturned as "fail-safe," meaning class members couldn't be defined until the case was resolved.
The amended complaint sought class certification for those whose property contains the weedkiller as a result of AT&T's application of it. The trial court was satisfied with this change, as was the Court of Appeals.
But four other issues remain as to whether the class is proper, the Court of Appeals ruled in sending it back to the trial court.