* The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 13a0279p.06 

### UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_________________

A MERICAN E XPRESS T RAVEL R ELATED S ERVICES C OMPANY , I NC ., A New York Corporation, Plaintiff-Appellant ,

v. C OMMONWEALTH OF KENTUCKY , Kentucky Department of the Treasury, Defendant , T ODD H OLLENBACH , Treasurer, in his official capacity, Defendant-Appellee

. X - - - -> , - - - - - - - - - - N No. 12-6249

Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort. No. 3:08-cv-00058—Danny C. Reeves, District Judge. Argued: July 23, 2013 Decided and Filed: September 17, 2013 Before: SILER and COLE, Circu it Judges; DOWD, District Judge. *

_________________ COUNSEL ARGUED: Walter L. Sales, STOLL KEE NON 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.

1No. 12-6249 Am. Express Travel Related Servs. v. Commonwealth of Ky., et al. Page 2

1 The General Assembly had previously attempte d to amend § 393.060(2) in the same manner in 2006, but a state court voided that bill for failing to comply with the Kentucky Constitution’s procedures for amending a statute. Am. Express Travel Related Servs. Co., Inc. v. Kentucky , No. 06-CI-1151 (Franklin Cir. Ct. Jan. 31, 2007). _________________ OPINION

_________________ SILER, Circuit Judge. Plaintiff AmericanExpress 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 TC s, 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 ame nded KRS § 393.060(2) in 2008 to change Kentucky’s abandonment period fr om fifteen to seven years. 1 AmEx subsequently filed suit against Hollenbach, claiming that the Amendment violates the Due Process Clause,No. 12-6249 Am. Express Travel Related Servs. v. Commonwealth of Ky., et al. Page 3

the Contract Clause, and the Takings Clauseof the United States Constitution. Initially, the district court granted summary judgment for AmEx, finding that the Amendment violated the Due Process Clause because th e 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-mo tions for summary judgment. In its motion for summary judgment, AmEx additionally ar gued that the legislation did not apply retroactively so as to affect TCs that wereissued 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 retroactiv e applicability under Kentucky law, it argues that the provision violates the Commerce Cl ause. 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).No. 12-6249 Am. Express Travel Related Servs. v. Commonwealth of Ky., et al. Page 4

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 Du e 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 s how a likelihood of succe ss 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 re sulted 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 speci fically 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.No. 12-6249 Am. Express Travel Related Servs. v. Commonwealth of Ky., et al. Page 5

2 The General Assembly repealed and reenacted the 2008 Amendment in 2009, due to questions concerning its validity. Specifically, the Kentucky legislature failed to present the 2008 Amendment to the governor by midnight on the last day it was authori zed to be in session. A Kentucky state court held in early 2009 that presentment must occur before the end of the legislative session. See Williams v. Grayson , No. 08-Cl-856 (Franklin Cir. Ct. Jan. 21, 2009). To remedy this potential problem, the General Assembly repealed and reenacted the identical “seven-year” change to § 393.060(2) in 2009. See 2009 Ky. Acts 86 §§ 11, 17. Kentucky law governing statutory constructi on states that “[n]o statute shall be construed to be retroactive, unless expr essly so declared.” KRS § 446.080(3). The Kentucky Supreme Court has noted that this rule should be “strictly construed.” Hamilton v. Des parado 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 substantiv e 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, substantiv e 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 re troactivity for § 12, the applicable section. 2008 Ky. Acts 132 § 12. By contrast, H ouse 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 legisl ature 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 retro active, 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 theNo. 12-6249 Am. Express Travel Related Servs. v. Commonwealth of Ky., et al. Page 6

provision to be fully retroactive to all outstanding TCs, it could have simply stated so, as it did in § 15 of the same bill re garding 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 TC s 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 fi fteen 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 is, whether the Amendment is a violation of substantive dueprocess, the Contract Clause, or the Takings Clause. Thus, deciding the state law question first obviates the need to analyze the remaining constitutional issues, except fo r the dormant Commerce Clause discussed below.

V. We now turn to AmEx’s sole remaining argument–the company’s contention that the Amendment, even as applied prospectiv ely, violates the dormant Commerce Clause. A challenge to a statute under the dormant Commerce Clause involves a two-part inquiry. First, we must “determine whether ‘a state statute directly regulates or discriminates against interstate commerce, or [whether] its effect is to favor in-state economic interests over out-of-state interests.’” Int’l Dairy Foods Ass’n v. Boggs , 622 F.3d 628, 644 (6th Cir. 2010) (quoting Brown-Forman Distillers Corp. v. N.Y. StateNo. 12-6249 Am. Express Travel Related Servs. v. Commonwealth of Ky., et al. Page 7

Liquor Auth. , 476 U.S. 573, 579 (1986)). If a statute does either of these, it is generally struck down without further inquiry. Id. “When, however, a statute has only indirect effects on interstate commerce and regulates evenhandedly, we have examined whether the State’s interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits.” Brown-Forman Distillers , 476 U.S. at 579 (quoting Pike v. Bruce Church, Inc. , 397 U.S. 137, 142 (1970)). AmEx asserts that the Amendment violates the dormant Commerce Clause under both tests. Under the first test, AmEx argues that the TC business is an interstate and international business that relies on the uniformity of regulation throughout the states, noting that only Kentucky and New Jersey have deviated from the fifteen-year presumptive abandonment period that has been adopted from the Uniform Unclaimed Property Act. It contends that the Ame ndment impairs the free flow of commerce and asserts that unless it chooses to sell TCs in Ke ntucky on a marginal basis or at a loss, the Amendment forces it to choose between three options: (1) to cease selling TCs in Kentucky; (2) to charge a fee for selling TC s in Kentucky, but not other places; or (3) to charge a fee for selling TCs throughout th e United States to maintain uniformity. AmEx argues that this burdens interstate commerce by allowing Kentucky to dictate the operation of its TC business nationwide. AmEx’s argument fails because the Ame ndment does not practically or legally require it to choose any of the three options it mentions. Instead, AmEx may choose on its own volition to pursue one of its proposed op tions. This differs from the cases where the Supreme Court has held state statut es unconstitutional under the Commerce Clause. See, e.g., Healy v. Beer Inst. , 491 U.S. 324, 335-343 (1989) (finding a Connecticut statute unconstitutional because it controlled the prices at which out-of-state shippers could sell their beer in other states); Brown-Forman , 476 U.S. at 583-84 (finding a New York statute unconstitutional because it require d distillers to seek approval of the New York State Liquor Authority before lowering prices in other states). The regulations in those cases had “the practical effect of controlling commerce that occur[red] entirely outside of the state in question.” Boggs , 622 F.3d at 645. The Amendment here cannotNo. 12-6249 Am. Express Travel Related Servs. v. Commonwealth of Ky., et al. Page 8

be said to controlcommerce outside of Kentucky, nor does it require AmEx to operate differently in Kentucky. Under the second test, AmEx argues that th e only real local benefit is to enrich the state at its expense, wh ich may be illusory if it ceases to sell TCs in Kentucky or exits the TC industry in the United States altogether. However, while revenue generation is not a local benefit that canjustify discrimination against interstate commerce, “it is a cognizable benefit for purposes of the Pike test.” United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth. , 550 U.S. 330, 346 (2007). Further, as previously noted, while AmEx may voluntarily choose to cease selling TCs in Kentucky, or exit the TC market altoge ther, the Amendment does not directly or indirectly require it to do so. Thus, AmEx’s Commerce Clause challenge fails.

VI. In sum, although we are affirming the district court, we do so on different grounds. We hold that the TC provision app lies only prospectively from its enactment date of April 24, 2008, and does not violat e the Commerce Clause. However, we recognize that the district court erroneously assumed that KRS § 393.060(2) applied retroactively, without so ruling. We therefor e remand the case to the district court with instructions to enter a judgment finding that KRS § 393.060(2) applies only prospectively from April 24, 2008.

AFFIRMED in part and REMANDED in part.