RENDERED: DECEMBER 9, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

ORDERED PUBLISHED: JANUARY 13, 2023; 10:00 A.M.

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0028-MR

COMMONWEALTH OF KENTUCKY,

EX REL. ATTORNEY GENERAL

DANIEL CAMERON, IN HIS

OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF KENTUCKY APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 20-CI-01252

JONES & PANDA, LLC APPELLEE

OPINION

VACATING AND REMANDING

**   **  **

BEFORE: CALDWELL, CETRULO, AND COMBS, JUDGES.

CETRULO, JUDGE: The Kentucky Attorney General, Daniel Cameron (the 

“Attorney General”), appeals a Fayette Circuit Court order granting a petition to 
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set aside a criminal investigative demand (“CID”). Finding the circuit court failed 

to conduct an evidentiary hearing to evaluate the justification for the issuance of 

the CID, we vacate and remand.

I. FACTS AND PROCEDURAL BACKGROUND

In March 2020, Governor Andy Beshear declared a state of 

emergency due to the COVID-19 pandemic. This declaration, in part, initiated the 

Commonwealth’s price control laws preventing the sale of certain items1for a 

price “grossly in excess of the price prior to the declaration and unrelated to any 

increased cost to the seller.” Kentucky Revised Statute (“KRS”) 367.374(1)(b). 

The Attorney General, in his official capacity, received information 

from Amazon that third-party sellers were allegedly participating in price gouging 

through its website. As a result of this information, the Attorney General issued a

CID instructing Appellee Jones & Panda, LLC (“Jones & Panda”) to “furnish 

information relating to hand sanitizers and respirators it sold on Amazon.” Jones 

& Panda did not furnish the information, but instead filed a petition in Fayette 

Circuit Court to set aside or modify the CID. In their petition, as amended, Jones 

& Panda challenged the constitutionality of Kentucky’s price control laws and 

1

Items included consumer food items; goods or services used for emergency cleanup;

emergency supplies; medical supplies; home heating oil; building materials; housing, 

transportation, freight, and storage services; gasoline and other motor fuels; and direct care staff 

services provided by a health care services agency. KRS 367.374(1)(b)1.-.10.
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argued that the Attorney General had not shown a reasonable justification for the 

CID. The Attorney General responded and filed an emergency motion to enforce 

the CID. In May 2020, the parties appeared via Zoom in Fayette Circuit Court. 

The judge assigned to the matter was unavailable and another judge presided (the 

“First Judge”). 

At that hearing, Jones & Panda argued the CID was “arbitrary and 

unreasonable” because the Attorney General did not provide documentation to the 

court to support the issuance of the CID. The Attorney General stated that, on its 

face, the CID did not have to include details from the Amazon report, but that the 

Attorney General would provide the Amazon documentation to the court for an incamera review. The Attorney General argued that he did not wish to make the 

documentation part of the record at that time because it was “evidence of an ongoing investigation.” The Attorney General argued that “as a general rule,” he did

not “provide information gathered in the investigation when it’s in the investigative 

state.” 

At the hearing, the First Judge stated that the record did not contain 

sufficient information to support the CID; therefore, she was denying the Attorney 

General’s emergency motion.2 The First Judge did not review the supporting 

documentation in-camera nor schedule an evidentiary hearing on the issue. In fact, 

2 The court also granted the motion for leave to file a first amended complaint.
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the First Judge did not rule on the petition to set aside or modify the CID, nor did 

she address the constitutional arguments,3stating that the original judge assigned to 

the matter would address the remaining open matters. When counsel for the 

Attorney General asked the court if the written order would address the Attorney 

General’s ability to supplement the record on pending issues, the First Judge 

stated, “I’m not aware of anything that would give you one shot and you’re out.” 

However, the subsequent written order did not address the Attorney General’s 

ability to supplement the record, but simply expressed the court’s reasoning for 

denying the motion to enforce, as follows:

On review of the Attorney General’s Emergency Motion, 

this Court must examine the documentation and facts 

underlying the decision to issue the CID. . . . Although 

the Attorney General states he received “detailed 

information” from Amazon, the motion does not detail 

the substance of the information or attach copies of the 

documentation received from Amazon. The motion does 

not even expressly state that Jones & Panda sold hand 

sanitizer and respirators for above-market prices, 

although it is suggested by the motion. . . . The Attorney 

General has failed to meet his burden to establish a 

reasonable justification for issuance of the [CID].

Before the Fayette Circuit Court ruled on the petition to set aside the 

CID, the Attorney General filed a motion for an in-camera review. Jones & Panda 

3

Jones & Panda challenged the constitutionality of Kentucky’s price-control laws on the grounds 

they violate the dormant commerce clause, the First Amendment, and the equal protection 

clause. 
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responded, but a parallel case in Federal Court paused the action.4 The matter 

resumed in Fayette Circuit Court in October 2021 in front of the judge originally 

assigned to the matter (the “Second Judge”). At this hearing (the “October 2021 

Hearing”), the Attorney General again requested an in-camera review of the 

Amazon documentation by the court before there was a determination on the 

petition.

At the beginning of the hearing, the Second Judge stated that this 

motion appeared to be a “second bite at the apple.” Again, the Attorney General 

argued that the court would understand the reasonable justification for the CID 

after an in-camera review of the supporting material. Adversely, Jones & Panda 

argued that the CID request was too broad and unjustified. During the hearing, the 

Second Judge asked questions about the data contained in the Amazon 

documentation, but did not review the material in-camera nor schedule an 

evidentiary hearing to determine if an in-camera review would be appropriate. 

Instead, the Second Judge noted her role was not to be an appellate judge for the 

First Judge. At the conclusion of that hearing, the Second Judge denied the motion 

for an in-camera review and granted the petition to set aside the CID. The 

subsequent written order succinctly reiterated the court’s oral decision.

4 A federal district court entered a preliminary injunction preventing the Attorney General from 

enforcing Kentucky’s price-control laws. Later, the Sixth Circuit lifted that injunction. Online

Merchants Guild v. Cameron, 995 F.3d 540 (6th Cir. 2021).
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Shortly thereafter, the Attorney General filed a motion pursuant to 

Kentucky Rule of Civil Procedure (“CR”) 59.05 to alter, amend, or vacate the 

order setting aside the CID, arguing the order should be vacated “because it was 

based on a mistake of fact and law, namely an erroneous recollection and 

interpretation of an earlier order in the case issued by a different presiding judge.”

After a hearing on the motion, the Second Judge denied the CR 59.05 motion. The 

Attorney General then appealed the order granting the petition to set aside the CID.

II. ANALYSIS

On appeal, the Attorney General argues that the circuit court erred 

when it set aside the CID because 1) the court created an unjustifiable, 

unprecedented rule giving the Attorney General only one chance to enforce a CID, 

and 2) the Second Judge misunderstood the First Judge’s intention. Jones & Panda 

argues that the circuit court properly granted the petition to set aside the CID and 

challenges the preservation of the Attorney General’s statutory argument under

KRS 367.250.

5

 This matter involves questions of law, including statutory 

interpretation; therefore, our review is de novo. Wheeler & Clevenger Oil Co., Inc.

v. Washburn, 127 S.W.3d 609, 612 (Ky. 2004).

5 We find this preservation argument lacks merit. True, the Attorney General did not name KRS 

367.250 specifically during the October 2021 hearing, but the Attorney General did refer to

statutes requiring confidentiality, thus preserving the argument sufficiently for this appeal.
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The Kentucky Consumer Protection Act (“KCPA”)

6 protects 

Kentuckians from unfair (“unconscionable”), false, misleading, or deceptive acts 

or practices in the conduct of any trade or commerce. KRS 367.170. Additionally, 

the KCPA protects from unreasonable investigations taken pursuant to the Act. 

KRS 367.260. When the Attorney General has reason to believe that a person has 

engaged in an unlawful act, or when he believes it to be in the public interest that 

he investigate whether a person engaged in an unlawful act, the Attorney General

may execute a CID (or subpoena)7requiring the production of relevant 

documentary material. KRS 367.240(1). If any person fails to obey a CID, the 

Attorney General may seek relief in circuit court. KRS 367.290. The Attorney 

General is not required to detail the reason or grounds for its issuance on the face 

of the CID. Commonwealth ex rel. Hancock v. Pineur, 533 S.W.2d 527, 529-30 

(Ky. 1976). However, the CID must be supported by a reasonable justification. Id. 

at 530. Further, judicial review protects against mistaken or arbitrary orders. Id. at 

529. 

If a CID recipient challenges the CID, that entity may file a petition to 

modify or set aside the demand in circuit court. KRS 367.240(2). It is the circuit 

6 KRS 367.110 to 367.360.

7 For purposes of this analysis, CIDs and subpoenas are treated consistently. See KRS 367.250, 

367.280, and 367.290.
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court’s duty “to examine the documentation and facts upon which the Attorney 

General based his decision to issue the demand.” Ward v. Commonwealth ex rel. 

Stephens, 566 S.W.2d 426, 429 (Ky. App. 1978). Here, that examination never 

took place. Both parties made arguments as to the validity of the CID itself at the 

October 2021 Hearing, but that is where the conversation stopped. While it 

appears there may have been a misunderstanding between the two presiding 

judges, the end result was the same: neither the First Judge nor the Second Judge 

examined the documentation upon which the Attorney General based the CID nor 

held an evidentiary hearing dedicated to whether an in-camera review would be 

appropriate.

While the issuance of the CID is an element of the investigative phase

(not the discovery phase), legal checks and balances must still be respected. The 

Attorney General is required to keep subpoenas confidential and may make them

public only to “the extent necessary for law enforcement purposes in the public 

interest.” KRS 367.250. Kentuckians are protected from arbitrary action at the 

hands of a governmental agency because “once [a CID recipient] makes a prima 

facie showing of facts entitling him to relief[,] the [governmental] agency has the 

onus of coming forward with a showing of reasonable justification, else it runs the 

risk of an adverse judgment.” Pineur, 533 S.W.2d at 530. However, “[n]owhere 

in the statute is there a standard for determining what facts satisfy the conditions 
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precedent to the issuance of an investigative demand.” Ward, 566 S.W.2d at 428. 

To determine this, the trial court must “look behind the demand.” Id. In fact, “it is 

the duty of the court to examine the documentation and facts upon which the 

Attorney General based his decision to issue the demand.” Id. at 429 (emphasis 

added).

Kentucky caselaw on CIDs is limited, but consistent. In every case, a 

determination of the CID’s validity has been the result of a review of the 

information supporting its issuance. In Pineur, the circuit court reviewed the 

information supporting the investigative demand – 38 customer complaint letters, 

affidavits of numerous dissatisfied customers, and the affidavit of one former 

salesman – to determine if it was sufficient to warrant a very broad request for 

information. Pineur, 533 S.W.2d at 527. In Ward, the circuit court reviewed the 

supporting documentation, which included an attorney’s affidavit explaining the 

basis for the issuance. Ward, 566 S.W.2d at 426. In this case, there was no such 

review conducted. In Pineur, the Court specifically held that there was no 

statutory or constitutional requirement that the CID recite on its face the reason for 

its issuance. Pineur, 533 S.W.2d at 528. 

Additionally, although Lassiter v. Landrum, 610 S.W.3d 242 (Ky. 

2020), discussed the Secretary of the Finance and Administration Cabinet’s ability 

to issue subpoenas, we find the holding persuasive and relevant. “[T]he judiciary 
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provides a solid backstop for any potential overreaches by . . . [an] agent of the 

government in issuing [subpoenas.]” Id. at 252. In Lassiter, the Kentucky 

Supreme Court reiterated that the circuit court should assess the validity of a 

subpoena. Id. (“After review of the subpoena issued in this case, it appears to have 

satisfied the foregoing standard. However, we leave that determination to the 

sound discretion of the trial court on remand.”). And, it should be left to the sound 

discretion of the trial court to assess whether “the inquiry is within the authority of 

the agency, the demand is not too indefinite and the information sought is 

reasonably relevant.” Id. 

Therefore, whether the Amazon documentation should be reviewed 

in-camera is a question for the trial court. Whether or not the scope of the CID is 

reasonable (or too broad) is a question for the trial court. Pineur, 533 S.W.2d 

at 530. Whether additional evidence beyond the Amazon documentation is 

required to support the CID is a question for the trial court. Ward, 566 S.W.2d 

at 428. The trial court simply failed to answer these questions; therefore, we 

remand. 

III. CONCLUSION

Accordingly, we VACATE the order granting the motion to set aside 

the CID. We REMAND with instructions for the Fayette Circuit Court to hold an 
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evidentiary hearing to determine if the CID was properly supported and to conduct 

an in-camera review, if necessary, to accomplish this task.

ALL CONCUR.

BRIEFS AND ORAL ARGUMENT 

FOR APPELLANT:

Matthew F. Kuhn

Michael R. Wajda

Philip R. Heleringer

Matthew Cocanougher

Assistant Attorneys General

Frankfort, Kentucky

BRIEF AND ORAL ARGUMENT 

FOR APPELLEE:

Mason Moore Kessinger

Lexington, Kentucky