RENDERED: JULY 12, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-1171-ME

SOUTH CENTRAL BANK APPELLANT 

v. 

APPEAL FROM HARDIN CIRCUIT COURT

HONORABLE LARRY ASHLOCK, JUDGE

ACTION NO. 19-CI-01559

JEAN JOHNSON, INDIVIDUALLY 

AND ON BEHALF OF ALL OTHERS 

SIMILARLY SITUATED APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, ECKERLE, AND MCNEILL, JUDGES.

CALDWELL, JUDGE: South Central Bank appeals from the Hardin Circuit 

Court’s certification of a class action. We affirm. 

FACTS

Appellee Jean Johnson (“Johnson”) is a former customer of Appellant 

South Central Bank (“South Central” or “the bank”). Johnson opened accounts at 
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South Central in 2017 and 2018. She filed suit against the bank in late 2019 and 

closed her accounts shortly after filing suit. 

As summarized in the trial court’s class certification order, Johnson 

alleged breach of contract and other claims based on the bank allegedly charging 

her unauthorized fees on her checking account:

Johnson alleges she was charged fees in violation of 

South Central’s standardized contract. She alleges two 

distinct practices resulted in the unauthorized fees 

charged to her and by which South Central regularly 

charged to accountholders during the period at issue.

Johnson contends South Central has improperly 

garnered millions of dollars in fees from thousands of 

South Central accountholders through its automated 

practice of assessing (1) overdraft fees on debit card 

transactions that were authorized on sufficient funds but 

settled into a negative balance (“APSN Fees”); and (2) 

more than one insufficient funds fee (“NSF fee”) or 

overdraft fee on an item rejected and returned for 

insufficient funds (“Multiple Fees”). Johnson asserts that 

these practices breach South Central’s uniform adhesion 

contract with its accountholders (Counts I and II), and 

violate the Kentucky Consumer Protection Act, KRS[1]

§§ 367.110-367.300 (Count III). South Central brings 

several challenges to certification. 

South Central employed an automated core processor to automatically 

process transactions, including assessing fees on transactions. The trial court 

described how debit card transactions were processed:

1 Kentucky Revised Statutes. 
-3-

South Central’s automated core processor uniformly 

processes debit card transactions in two parts. First, at 

the time the member “swipes” her debit card, 

authorization for the purchase amount is instantaneously 

obtained by the merchant from South Central. At this 

point, South Central chooses to either pay or decline the 

transaction. To determine if a debit card transaction 

should be authorized, South Central looks to the available 

funds in the customer’s account. Once South Central has 

authorized a transaction, it is obligated to pay the 

merchant. Thus, sometime after South Central has 

authorized the transaction, it transfers the funds from the 

customer’s account to the merchant. 

(Citations to trial to record omitted.) 

Johnson’s complaint alleged that two types of fees – APSN fees and 

multiple returned item (“RI”) fees – were improper. According to Johnson, South 

Central “engaged in an automated ‘Authorize Positive, Settle Negative’ ‘APSN’ 

practice of assessing an overdraft fee on debit card transactions that posted when 

the account contained insufficient funds, even though sufficient funds were in the 

account at authorization and South Central contemporaneously set aside funds to 

cover the transaction.” She also asserted that South Central uniformly assessed 

NSF2 or overdraft fees “whenever a transaction (ACH[3] or check) was attempted 

but there were insufficient funds to cover it, including assessing these fees on the 

2

Insufficient Funds Fee.

3 Automated Clearing House, a network which handles electronic payments and automated 

money transfers. 
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re-processing of a transaction that South Central had previously rejected (and 

previously charged a fee).” 

Johnson asserted claims in her complaint for breach of contract and 

the breach of covenant of good faith and fair dealing, unjust enrichment, and 

violation of the Kentucky Consumer Protection Act (“KCPA”). She demanded a 

jury trial and requested that the trial court certify a class under CR4 23. She also 

requested other relief including injunctive or declaratory relief, restitution of 

money, statutory and actual damages, interest, reimbursement of attorneys’ fees 

and other litigation expenses, and other relief deemed proper by the trial court. 

South Central challenged the request for class certification among 

other matters and the parties engaged in some discovery, including taking 

depositions. The parties reached an agreement about certain discovery to be 

produced before the trial court ruled on class certification. “Specifically, South 

Central agreed to produce a one-month sample of transactional data regarding 

APSN charges and multiple RI [returned item] fee charges as well as account 

agreement forms, fee schedules, disclosures, overdraft and non-sufficient funds 

policies, procedures, and practices for checking accounts.”

Johnson filed a motion for class certification and affidavits from her 

expert, Arthur Olsen (“Olsen”). In Olsen’s original affidavit, he stated he received 

4 Kentucky Rules of Civil Procedure. 
-5-

deposition transcripts from five South Central corporative representatives and data 

from South Central. Based on his review of these materials and experience 

analyzing customer transaction data from other financial institutions, Olsen opined 

he would be able to identify class members and calculate damages once provided 

with “full transactional data” from South Central. 

After additional briefing and a hearing, and pursuant to the trial 

court’s order following oral argument, Johnson filed a supplemental affidavit from 

Olsen. In this supplemental affidavit, Olsen described making preliminary 

calculations about the number of class members and amount of fees based on 

review of a one-month sample of South Central’s customer transaction data. He 

stated 237 accountholders were assessed APSN fees totaling $10,890 and 190 

accountholders were assessed multiple RI fees totaling $11,610 for the month 

reviewed. Olsen’s supplemental affidavit also stated he could perform additional 

analysis to give the bank credit for reversed or refunded fees and for uncollectables 

(when an account was closed due to a negative balance) if provided with data 

about such reversals, refunds, and uncollectables. 

Ultimately, the trial court entered an order certifying two classes: 1) 

an Overdraft Fee Class consisting of: “All citizens of Kentucky who were South 

Central Bank checking account holders between October 4, 2009 and October 8, 

2018 and who were charged overdraft fees on debit card transactions authorized on 
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sufficient funds” and 2) a Multiple NSF Fee Class consisting of: “All citizens of 

Kentucky who were South Central Bank checking account holders on or after 

October 4, 2009 and who were charged more than one fee on an item.”5 South 

Central Bank filed a timely appeal from the class certification order. 

ANALYSIS

Standard of Review

Appellate courts review trial court decisions on class certifications for 

abuse of discretion – meaning we reverse only if the decision is “arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.” Hensley v. 

Haynes Trucking, LLC, 549 S.W.3d 430, 444 (Ky. 2018). This deferential 

standard of review reflects both the fact-specific nature of certification inquiries 

and the trial court’s “inherent power to manage and control pending litigation.” Id. 

Therefore, if the trial court’s reasoning for its class certification decision remains 

within the “parameters” of CR 23 class certification requirements, the class 

certification decision should not be disturbed. Id. 

CR 23.01 and CR 23.02 Requirements for Maintaining a Class Action

To maintain a class action, the requirements of both CR 23.01 and CR 

23.02 must be fulfilled. Hensley, 549 S.W.3d at 442. CR 23.01 sets forth four 

5 The trial court excluded from the two classes: “(1) Defendant [South Central Bank], 

Defendants’ [sic] subsidiaries and any entity in which Defendant has a controlling interest; and, 

(2) the Judge assigned to this case and any member of his or her immediate family[.]” 
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mandatory requirements for a class action, often summarized as numerosity, 

commonality, typicality, and adequacy of representation. Id. at 442-43. In 

addition to fulfilling all four CR 23.01 requirements, a viable class action must 

satisfy at least one of three factors set forth in CR 23.02. Id. at 444. 

Preliminary Considerations – Application of Federal Precedent and Burden of 

Proof for Class Certification

As CR 23 closely resembles FRCP6 23, precedent from federal courts 

about class actions may be applied to Kentucky cases involving determinations of 

whether a class can be certified. See Hensley, 549 S.W.3d at 436 (“[B]oth sides 

agree that federal law should guide this Court’s analysis of the trial court’s classcertification decision because CR 23 mirrors its federal counterpart, Federal Rules 

of Civil Procedure Rule (FRCP) 23.”). 

The party seeking class certification bears the burden of showing that 

all CR 23 prerequisites for maintaining a class action are fulfilled. Nebraska All. 

Realty Company v. Brewer, 529 S.W.3d 307, 316 (Ky. App. 2017). The trial court 

must conduct a “rigorous” analysis before determining whether to certify a class 

and the party seeking class certification must demonstrate that CR 23 prerequisites 

are fulfilled, such as there being numerous parties and common questions of law 

and fact – which necessarily involves some “overlap” with the merits of claims. 

6 Federal Rules of Civil Procedure.
-8-

Id. (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-52, 131 S. Ct. 

2541, 2551, 180 L. Ed. 2d 374 (2011)). 

South Central argues that the trial court failed to engage in the 

required rigorous analysis, that it abused its discretion in determining that CR 23 

requirements were met and, in deciding to certify the class, and that its class 

definitions are overly broad. Before addressing its arguments about whether the 

trial court engaged in sufficiently rigorous analysis or the class definitions were 

overly broad, we first address the parties’ arguments about specific CR 23.01 and 

CR 23.02 requirements. 

No Reversible Error in Finding Four CR 23.01 Requirements Fulfilled

CR 23.01 states:

Subject to the provisions of Rule 23.02, one or more 

members of a class may sue or be sued as representative 

parties on behalf of all only if (a) the class is so 

numerous that joinder of all members is impracticable, 

(b) there are questions of law or fact common to the 

class, (c) the claims or defenses of the representative 

parties are typical of the claims or defenses of the class, 

and (d) the representative parties will fairly and 

adequately protect the interests of the class.

1) Numerosity 

South Central does not appear to dispute that the numerosity 

requirement of CR 23.01 is met. It does not explicitly argue the numerosity 

requirement was not fulfilled in its appellate brief, nor did it argue lack of 
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numerosity to the trial court based on our review of the record. In short, the 

numerosity requirement of CR 23.01(a) is indisputably fulfilled. 

2) Commonality

CR 23.01(b) requires that: “there are questions of law or fact 

common to the class[.]” The trial court found there were common questions of law 

or fact among the proposed class. 

The trial court noted Johnson’s assertions that the challenged fees 

breached South Central’s standard contracts with its account holders and violated 

the Kentucky Consumer Protection Act. It also stated:

South Central’s uniform contract and standardized fee 

assessment practices, including the automatic processing 

of transactions and assessments of fee through its “core 

processor,” have been commonly applied to Johnson and 

class members, therefore, this case is amenable to class 

treatment.

 

The trial court then went on to describe how South Central used a core 

processor to automatically process transactions, including assessing fees in the 

factual background section of its class certification order. 

And in analyzing the commonality component of CR 23.01, the trial 

court found “the central questions in this case are common to Johnson and 

members of the Classes” after noting “[o]ne significant issue common to the class 

may be sufficient to warrant certification[.]” (quoting Manning v. Liberty Tire 

Services of Ohio, LLC, 577 S.W.3d 102, 113 (Ky. App. 2019)). Given South 
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Central’s use of form adhesions contracts and its automated, uniformly applied 

processes for assessing fees, the trial court stated: “Not only are South Central’s 

fee assessment practices and standardized contract language uniform as to Johnson 

and class members, Johnson’s claims will turn on common answers to these 

common questions.” 

South Central argues that the trial court erred in finding the CR 23.01 

requirement for commonality fulfilled. It quotes precedent from this Court 

defining commonality under CR 23.01 as follows:

Commonality is the requirement that questions of law or 

fact are common among the class members. The class 

members must “have suffered the same injury[,]” and the 

claims must depend on a common contention capable of 

class-wide resolution, “which means that determination 

of its truth or falsity will resolve an issue that is central to 

the validity of each one of the claims in one stroke.”

Brewer, 529 S.W.3d at 312 (quoting Dukes, 564 U.S. at 350, 131 S. Ct. at 2551). 

In response, Johnson quotes precedent from our Supreme Court 

stating that the commonality requirement “does not require that all questions of 

law or fact be common” and that “complete identity of facts relating to all 

members” is not necessary “as long as there is a common nucleus of operative 

facts.” See Wiley v. Adkins, 48 S.W.3d 20, 23 (Ky. 2001). 

The parties also note that the commonality requirement also entails 

class members be able to use the same proof to prove their claims, so there is no 
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need for a separate trial for each class member. See Sprague v. General Motors 

Corp., 133 F.3d 388, 397-98 (6th Cir. 1998) (stating: “What we are looking for is 

a common issue the resolution of which will advance the litigation” and 

recognizing commonality entails proof on a class-wide rather than individualized 

basis). But Johnson emphasizes that even Sprague holds that “there need only be 

one question common to the class.” See id. at 397.

Having carefully reviewed the record and the applicable law, we 

discern no abuse of discretion or other error in the trial court’s determination that 

the CR 23.01 commonality requirement was fulfilled. Evidence in the record 

supports the trial court’s finding that the same standard contracts applied to 

account holders at relevant times and that South Central’s core processor 

automatically processed transactions and assessed fees in a uniform manner. 

Further, Johnson came forward with proof from her expert (including a 

supplemental affidavit after the trial court evidently found the initial affidavit 

insufficient) that he could ascertain class members and determine damages (based 

on the amount of fees paid) from data supplied by South Central. In short, the trial 

court’s finding the CR 23.01(b) commonality requirement fulfilled was not in 

error.

7

7 We are aware the parties both discussed the CR 23.01(b) commonality requirement together 

with the predominance requirement of CR 23.02(c) in their briefs, but we elect to discuss all CR 
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3) Typicality

CR 23.01(c) requires that: “the claims or defenses of the 

representative parties are typical of the claims or defenses of the class[.]” 

The trial court concluded the typicality requirement of CR 23.01(c) 

was fulfilled because Johnson was, at least at one time, charged the same types of 

fees as other class members through the same fee assessment practices. It noted 

South Central’s arguments about changes made to its form contracts effective 

August 1, 2019. But the trial court perceived that the same questions about 

whether the fees were permitted before or after August 1, 2019 applied to Johnson 

as to other class members. It found the typicality requirement met, viewing 

typicality as not a difficult standard to meet. 

According to our Supreme Court, a proposed class representative’s 

“claims and defenses are considered typical if they arise from the same event, 

practice, or course of conduct that gives rise to the claims of other class members 

and if the claims of the representative are based on the same legal theory.” 

Hensley, 549 S.W.3d at 443. 

23.01 requirements before considering whether CR 23.02 requirements are met. The 

predominance element will be discussed later in this Opinion. 
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As the trial court noted, Johnson’s claims stemmed from the same 

course of conduct as other proposed class members – the bank’s automatically 

assessing the challenged fees via its core processor. And Johnson’s claims would 

be based on the same legal theories as other class members – i.e., breach of 

contract and/or breach of the covenant of fair dealing or alternatively unjust

enrichment, and violation of the Kentucky Consumer Protection Act. This was 

enough to satisfy typicality according to Hensley.

8

Similar to Hensley’s definition of typicality, this Court has described 

typicality as simply there being a sufficient nexus between the individual class 

representative’s claims and those of the class in general. Brewer, 529 S.W.3d at 

312. We discern no error in the trial court’s typicality finding under this definition 

either. 

Furthermore, federal authority indicates typicality results in the class 

representative’s interests aligning with those of other class members. Sprague, 133 

F.3d at 399. Despite Johnson’s no longer having accounts at South Central, the 

8

In discussing typicality, the trial court quoted another portion of Hensley, 459 S.W.3d at 445, 

which perhaps addresses commonality rather than typicality: “[i]t is not necessary that there be a 

complete identification of facts relating to all members of the class as long as there is a common 

nucleus of operative facts.”) (internal quotation marks omitted). Nonetheless, questions of 

commonality and typicality are closely intertwined, and we discern no error in the trial court’s 

finding of typicality. And to the extent that the trial court’s reasoning differs from our own, we 

affirm on independent grounds supported by the record and applicable law. See Mark D. Dean, 

P.S.C. v. Commonwealth Bank & Tr. Co., 434 S.W.3d 489, 496 (Ky. 2014) (“If an appellate 

court is aware of a reason to affirm the lower court’s decision, it must do so, even if on different 

grounds.”).
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evidence supports a finding that her interests generally aligned with other current 

or former account holders who might wish to recoup the challenged fees or change 

the bank’s policies going forward. 

In addition to typicality requiring alignment of interests, other federal 

authority states: “To meet the typicality requirement, the named representatives 

must be able to establish the bulk of the elements of each class member’s claims 

when they prove their own claims.” Brooks v. Southern Bell Tel. & Tel. Co., 133 

F.R.D. 54, 58 (S.D. Fla. 1990). Logically, this would be true here – Johnson 

proving there was a breach of contract and breach of covenant of fair dealing as 

well as violation of Kentucky Consumer Protection Act in the bank charging her 

these fees would also establish the bulk of these same claims of other bank 

customers under the same form contracts for being charged these same types of 

fees. In other words, it would take the same sort of proof to prove her claims as to 

prove the claims of other class members. See Sprague, 133 F.3d at 399. 

South Central suggests Johnson’s unjust enrichment claims require 

determination of individual circumstances so her unjust enrichment claims are not 

typical of others. But unjust enrichment was asserted as an alternative claim to 

breach of contract or breach of covenant of fair dealing in the complaint. Possibly, 

class members might recover for breach of contract without the court ever 

considering unjust enrichment to resolve the case. And even though unjust 
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enrichment claims might typically not be as amenable to class actions due to 

reliance requirements,9such unjust enrichment claims in this context – for 

challenged bank fees – may be more amenable to class action certification due to 

the defendant’s common course of conduct in automatically assessing such fees. 

For example, federal precedent has rejected similar contentions of 

lack of typicality for bank overdraft fees despite plaintiffs asserting alternative 

claims of unjust enrichment where the defendant’s uniform conduct makes the 

class representative’s efforts to recoup challenged fees typical of other class 

members. See In re Checking Account Overdraft Litigation, 307 F.R.D. 630, 643 

(S.D. Fla. 2015) (noting plaintiff’s argument that: “The evidence regarding Wells 

Fargo's scheme, including its uniform misrepresentations and concealment of its 

overdraft practices, renders Plaintiffs’ unjust enrichment and unconscionability 

claims typical of the class claims.”). See also id. at 647 (“Unjust enrichment 

claims can be certified for class treatment where common circumstances bear upon 

whether the defendant’s retention of a benefit from class members was unjust.”). 

See also in re Checking Account Overdraft Litigation, 286 F.R.D. 645, 653-54 

(S.D. Fla. 2012) (citation omitted) (“[I]t is the defendant’s common course of 

9

See generally Johnson v. BLC Lexington, SNF, LLC, No. CV 5:19-064-DCR, 2020 WL 

3578342, at *8 (E.D. Ky. Jul. 1, 2020) (unpublished); Carter v. Paschall Truck Lines, Inc., No. 

5:18-CV-41-BJB, 2023 WL 359559, at *16 (W.D. Ky. Jan. 23, 2023) (unpublished) – both cited 

in the Appellant brief at page 16. Such unpublished cases are not binding on us. See Kentucky 

Rules of Appellate Procedure (“RAP”) 41. 
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conduct . . . which governs considerations of typicality. Plaintiffs and the members 

of the class are all challenging the same overdraft policies of [bank] and seeking to 

recover the additional overdraft fees they incurred as a result of [bank’s] resequencing of their transactions. This is true irrespective of the cause of action 

alleged.”). In short, especially given evidence that the challenged fees were 

automatically assessed by South Central’s core processor, there was no error in the 

trial court’s finding of typicality. 

4) Adequacy of Representation

CR 23.01(d) requires that: “the representative parties will fairly and 

adequately protect the interests of the class.” 

The trial court found that Johnson as class representative would fairly 

and adequately protect other class members’ interests as “her interests are 

evidently common with members of the classes” and as she retained experienced 

class counsel. South Central does not appear to dispute that proposed class counsel 

is capable of adequately representing the interests of class members. But it 

challenges the trial court’s finding that Johnson would fairly and adequately 

protect class members’ interests.

For instance, South Central argues Johnson lacks standing and/or 

incentive for seeking injunctive relief and is therefore an inadequate class 
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representative. It cites, inter alia,

10 an unpublished federal case from the Eastern 

District of Arkansas in which class certification was denied partly due to concerns 

with the adequacy of representation based on the proposition that a former bank 

customer would lack standing to seek injunctive relief. See Wilkins v. Bank, No. 

3:20-CV-116-DPM, 2023 WL 1868142, at *7 (E.D. Ark. Feb. 9, 2023)

(unpublished) (“Watson is not a current Simmons [bank] customer, so he does not 

have standing to seek injunctive relief.”). The federal district court also found that 

even if Watson had standing, he lacked incentive to seek injunctive relief. 

But the former bank customer (Watson) in Wilkins expressly denied in 

his deposition testimony any interest in reforming the bank’s current practices or in 

protecting current account holders. Id. South Central points to no evidence of 

Johnson expressly disclaiming any similar interest in reforming the bank’s current 

policies or protecting current account holders. Johnson asserts she has an interest 

in seeing that others are not harmed by the fee practices as she was. We also note 

that according to Kentucky’s Rules of Appellate Procedure: “Unpublished 

10 South Central also cites opinions from Kentucky appellate courts purportedly holding that a 

former customer lacks standing to seek injunctive relief. It cites an unpublished opinion from 

our court, but such unpublished opinions from Kentucky appellate courts are not binding, RAP 

41(A), and we decline to discuss that unpublished case. It also cites a published case about a 

former shareholder lacking standing to prosecute an appeal of a shareholder’s derivative lawsuit. 

See Bacigalupo v. Kohlhepp, 240 S.W.3d 155, 157 (Ky. App. 2007). However, Bacigalupo is of 

limited relevance here due to its different context (shareholder’s derivative suits with their 

“continuous ownership” rules for maintaining standing) and its lack of any class action 

certification questions. 
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opinions from other jurisdictions are not binding precedent and citation of these 

opinions is disfavored.” RAP 41(B). So, Wilkins is not binding upon us. 

Furthermore, in addition to the lack of disavowal of interest in future 

fee practices in this case, we have some concerns with Wilkins’ reasoning. For 

example, when stating a former bank customer lacked standing to seek injunctive 

relief, the Wilkins court did not cite to another case challenging bank fees. Instead,

it cited a case involving a former pit bull owner’s challenge to an ordinance 

banning the owning or possession of pit bulls in a city in which the former pit bull 

owner no longer lived. See Frost v. Sioux City, Iowa, 920 F.3d 1158, 1161 (8th 

Cir. 2019), cited in Wilkins, 2023 WL 1868142, at *7. In addition to this 

distinguishable fact situation, Frost does not mention any attempt to seek 

certification as a class action. So, Frost does not address how an individual 

plaintiff’s lack of standing to seek declaratory or injunctive relief affected the 

adequacy of a class representative’s representation. 

Furthermore, as Johnson points out, South Central does not argue she 

lacks standing to seek money damages. Given that she has standing to seek at least 

some of the relief sought in the complaint, even if she does lacks standing to seek 

injunctive relief, Johnson argues the trial court could still properly certify a class. 

As support, she cites Imhoff v. House, 628 S.W.3d 88, 92 (Ky. 2021) (stating trial 

court has subject matter jurisdiction over case to properly rule on class certification 
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if it has subject matter jurisdiction over one claim). See also Hensley, 549 S.W.3d 

at 439 (“Once a trial court has the requisite subject-matter jurisdiction over a claim

– and all it takes is one claim – the circuit court may proceed to decide upon 

certification of a class.”). 

Of course, the trial court’s having subject matter jurisdiction over a 

case is not necessarily the same thing as a party having standing to seek a 

particular type of relief. See Mason v. Stikes, 650 S.W.3d 292, 298 (Ky. App. 

2022) (“[S]tanding and lack of subject-matter jurisdiction are not synonymous. 

The key difference is that subject-matter jurisdiction involves a court’s ability to 

hear a type of case while standing involves a party’s ability to bring a specific 

case.”). 

Even if Johnson lacks standing to seek injunctive relief herself, she 

clearly has standing to seek money damages and/or recoup improperly assessed 

fees so she could at least adequately represent the class in that regard. It is easily 

foreseeable that the class certification order may eventually be amended to reflect 

the issues certified concern only entitlement to money damages and/or recoupment 

of assessed fees and not entitlement to injunctive relief, in the absence of a current 

South Central bank customer class representative. Therefore, we cannot say that 

the trial court abused its discretion in certifying the class despite South Central’s 
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arguments that its former customer Johnson lacked standing to seek injunctive 

relief and was therefore an inadequate class representative. 

As Johnson asserts, the adequacy of representation requirement is 

primarily concerned with conflicts of interest between named class representatives 

and the class they seek to represent. See Amchem Products, Inc. v. Windsor, 521 

U.S. 591, 625, 117 S. Ct. 2231, 2250, 138 L. Ed. 2d 689 (1997) (Adequacy of 

representation requirement of federal equivalent to CR 23.01(d) “serves to uncover 

conflicts of interest between named parties and the class they seek to represent.”). 

Like the typicality requirement, the focus of the adequacy of representation 

requirement is whether the class representative’s interests align with those of other 

class members. Id. at 626, 117 S. Ct. at 2251. See also Hensley, 549 S.W.3d at 

443 (adequacy of representation satisfied if class representative has “common 

interests” and no “antagonistic” or conflicting interests with other class members, 

and it appears class representative will vigorously pursue class action).

Even if Johnson, as a former bank customer, might not directly benefit 

from injunctive relief to the same extent as South Central’s current customers, 

there is no indication that her interests conflict with that of current bank customers. 

Instead, the evidence of record shows that her interests generally align with that of 

current bank customers as noted by the trial court. 
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In addition to its argument that Johnson is an inadequate class 

representative since she is not a current South Central customer, South Central 

argues she cannot adequately represent the class due to timing concerns. It asserts 

that Johnson was not assessed multiple fees on any one item until August 2019, 

when the modified account agreement took effect and permitted such multiple fees 

(at least in its view). 

South Central also argues Johnson is not even a class member of the 

multiple fee class because of the new account agreement allegedly permitting such 

multiple fees. But while the August 2019 amendments to the form contract might 

affect whether Johnson could recover on a breach of contract claim, perhaps she 

might still recover if this fee is held to be a KCPA violation. And in any event, she 

could still be a member of the class (people charged multiple RI fees during that 

time frame) regardless of whether she is entitled to recovery for multiple RI fees 

during the relevant time frame. 

South Central misses the mark in suggesting that Johnson could not be 

an adequate representative due to concerns she might not be able to prevail on 

certain claims. The trial court was not faced with determining whether Johnson 

could prevail on any claim on the merits in ruling on class certification, but 

whether there were common questions capable of being resolved together with the 

same sort of evidence. As our Supreme Court aptly noted, “A suit may be a proper 
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class action, conforming to Rule 23, and still be dismissed for failure to state a 

cause of action.” Hensley, 549 S.W.3d at 437. 

In short, we discern no error in the trial court’s finding of adequacy of 

representation to satisfy CR 23.01(d). Having discerned no error in the trial court’s 

finding of CR 23.01 prerequisites, we next assess whether the trial court erred in 

determining that the requirements of CR 23.02(c) were fulfilled. 

No Reversible Error in Finding CR 23.02(c) Requirements Fulfilled

CR 23.02 states: “An action may be maintained as a class action if 

the prerequisites of Rule 23.01 are satisfied, and in addition” one of three 

alternative grounds is met. The trial court found CR 23.02(c) requirements met, 

and neither party argued that the alternative requirements stated in CR 23.02(a)-

(b) apply. 

CR 23.02(c) requires that, in addition to finding CR 23.01 

prerequisites met:

(c) the court finds that the questions of law or fact 

common to the members of the class predominate over 

any questions affecting only individual members, and 

that a class action is superior to other available methods 

for the fair and efficient adjudication of the controversy. 

The matters pertinent to the findings include: (i) the 

interest of members of the class in individually 

controlling the prosecution or defense of separate actions; 

(ii) the extent and nature of any litigation concerning the 

controversy already commenced by or against members 

of the class; (iii) the desirability or undesirability of 

concentrating the litigation of the claims in the particular 
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forum; (iv) the difficulties likely to be encountered in the 

management of a class action.

The trial court found that common issues predominated over issues 

pertaining only to certain individual members and that a class action would be 

superior to other methods for adjudicating the controversy. We first address the

predomination requirement of CR 23.02(c). 

1) Predominance (Common Issues Predominate Over Individual Issues)

To satisfy CR 23.02(c), common issues of fact or law must 

predominate over issues affecting only individual class members. 

The trial court found that common questions about whether automated 

and uniform fee assessment practices violated its standard form questions 

predominated despite South Central’s assertion of various individualized issues. It 

found that the deposition testimony of South Central representatives “reflects the 

uniform and automated manner that South Central assesses the challenged fees 

through its core processor” and that “any changes made by South Central to its 

uniform, adhesion contract were made uniformly as to the Classes and therefore, 

can be addressed through generalized proof[.]” It also found that Johnson and her 

expert, Olsen, “demonstrated that damages can be determined through South 

Central’s transaction data, including data on reversals and refunds.” And it 

concluded that any statutes of limitation defenses would not defeat certification. 
-24-

We discern no reversible error in the trial court’s predominance 

analysis. Substantial evidence in the record supports the trial court’s findings 

about the uniform and automated nature of the assessment of the challenged fees 

and about the similarly uniform nature of changes to the bank’s form contracts. 

And although statutes of limitations arguments may pose some interesting 

questions – especially as the different claims asserted have different statutes of 

limitations, federal precedent suggests that the possibility of individual statute of 

limitation defenses does not preclude a finding that common issues predominate 

over individual issues. See, e.g., Waste Management Holdings, Inc. v. Mowbray, 

208 F.3d 288, 296 (1st Cir. 2000) (“[T]he mere fact that such [statute of 

limitations] concerns may arise and may affect different class members differently 

does not compel a finding that individual issues predominate over common 

ones.”). See also Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 327 (4th Cir. 

2006) (affirming denial of class certification under specific facts of case because 

individualized statute of limitations issues predominated over common issues but

noting “we can easily foresee a situation where the defendant’s statute of 

limitations defense is so dependant [sic] upon facts applicable to the entire class

. . . that individual hearings would not be necessary.”). 

Sometimes common issues of statute of limitations defenses may

predominate over more individual issues. And often a court has options for 
-25-

dealing with statute of limitation issues in an efficient manner through class action 

litigation, as discussed in secondary authority:

Statute of limitations defenses – like damage 

calculations, affirmative defenses, and counterclaims –

rarely defeat class certification. In many circumstances, 

statutes of limitations defenses run against most or all 

class members. For example, the question of whether a 

prior class action suit tolled the statute of limitations will 

be common to many or all class members, as will the 

question of whether alleged fraudulent concealment by 

the defendant should affect the limitations period. When 

a limitations defense is common across the class, it 

will contribute to – not undermine – a finding that 

common issues predominate.

Statute of limitations defenses are often also 

marginalized by the fact that class counsel typically will 

define the proposed class as those with live claims (e.g.

buyers of a specific product within a specified time 

period); such definitions will preempt the assertion of a 

statute of limitations defense. Finally, if statute of 

limitations issues are somewhat individualized, courts 

deem that these concerns can be resolved during the 

damage phase of the case and need not preclude 

certification of liability issues.

For these reasons, most courts reject the 

contention that statute of limitations defenses, on 

their face, preclude a finding of predominance and 

instead demand evidence that such defenses will in 

fact cause the litigation to devolve into multiple 

individualized hearings. Individualizing evidence can 

arise, but it is more the exception than the norm.

The First Circuit summarized the state of the law as 

follows:
-26-

Although a necessity for individualized 

statute-of-limitations determinations 

invariably weighs against class certification 

under Rule 23(b)(3), we reject any per se

rule that treats the presence of such issues as 

an automatic disqualifier. In other words, 

the mere fact that such concerns may arise 

and may affect different class members 

differently does not compel a finding that 

individual issues predominate over common 

ones. As long as a sufficient constellation of 

common issues binds class members 

together, variations in the sources and 

application of statutes of limitations will not 

automatically foreclose class certification 

under [Federal] Rule 23(b)(3) . . . .

[11]

This passage reflects the law in most circuits.

WILLIAM B. RUBENSTEIN, 2 NEWBERG AND RUBENSTEIN ON CLASS ACTIONS § 4:57 

(6th ed. Nov. 2023 update). See also J. Douglas Richards & Benjamin D. Brown,

Predominance of Common Questions – Common Mistakes in Applying the Class 

Action Standard, 41 RUTGERS L.J. 163, 182-84 (2009) (concluding some courts 

mistakenly deny class certification based solely on the presence of statute of 

limitations defenses and overlook other tools for resolving statute of limitations 

issues in an efficient manner in class actions cases, calling for careful weighing of 

individual and common issues in predominance analysis, and noting that a 

11 Mowbray, 208 F.3d at 296. FRCP 23(b)(3) is the equivalent of CR 23.02(c). 
-27-

predominance of common issues does not mean that a case involves exclusively 

common issues). 

At the present juncture, there is no reversible error in the trial court 

finding that common issues predominate over individual issues – despite the 

possibility of statute of limitation defenses applying to some class members’ 

claims but not others.

12

 Next, we address the superiority prong of CR 23.02(c). 

2) Superiority (Class Action Best Way to Resolve Dispute)

To satisfy the superiority requirement of CR 23.02(c), one must show 

“a class action is superior to other available methods for the fair and efficient 

adjudication of the controversy.” 

South Central asserts that the trial court erred in finding a class action 

to be a superior way to adjudicate the controversy. It asserts that an administrative 

proceeding would instead be superior for resolving these disputes. But South 

Central does not identify the type of administrative proceeding to which it refers. 

And as the trial court noted, numerous cases from other jurisdictions have 

12 Some statutes of limitations issues may be common to many class members and might be 

addressed in an efficient manner through motions for summary judgment or dismissal of certain 

claims for fees assessed before a certain point. Possibly the class certification order may be 

altered or amended under CR 23.03(3), or the classes divided into subclasses under CR 23.03(7)

to reflect assessment of fees prior to and after certain dates. Or possibly individual statute of 

limitations problems may be resolved at the damages stage despite the certification of liability 

issues. See generally 2 NEWBERG AND RUBENSTEIN ON CLASS ACTIONS § 4:57. 
-28-

concluded that similar litigation about bank overdraft fees is best resolved by class 

action. 

The trial court also stated that “mass consumer” cases involving small 

amounts of individual damages with “little means to pursue expensive, complex 

litigation” are best pursued as class actions to protect the rights of people who 

might otherwise be unable to assert their rights in court at all (citing Windsor, 521 

U.S. at 617, 117 S. Ct. at 2246). 

South Central disagrees, suggesting in its brief there are too many 

separate issues here to resolve in a single class action:

Analyzing hundreds of thousands of transactions to 

determine which agreements governed, whether overdraft 

fees were appropriate under the agreements, whether the 

accountholder was a business or an individual, what the 

accountholder knew about their balance at the time of 

certain transactions, what fees were charged, whether 

fees were reversed or refunded, and whether the claims 

fall within the applicable statute of limitations for four 

different causes of action is an insurmountable task. The 

sheer enormity of this task mandates reversal of the class 

certification.

(South Central makes a nearly identical argument to suggest that individual issues 

predominate over common issues in its reply brief.) 

Certainly, we do not deny that there may be difficulties in resolving 

the merits of all class members’ claims in the same proceeding. Nor do we deny 

that individuals may have different preferences regarding how they would like to 
-29-

resolve the fee disputes here or that the merits of individual claims may differ. Yet 

while such difficulties or differences may be considered in determining whether a 

class action is superior for resolving a certain dispute, see CR 23.02 (c), they do 

not necessarily show that class action adjudication is not superior or that 

certification should be denied. 

For example, a well-known treatise construing the federal equivalent 

of CR 23.02(c) – which identifies the same factors for consideration of whether a 

class action would be superior for resolving the dispute – states:

The rule does not indicate the weight to be given to each 

factor or require that the action be dismissed if particular 

conclusions are reached as to any or all of them. Clearly, 

no single element is determinative. The enumeration 

simply provides some guidance to assist a judge in 

deciding whether a class action best serves the interests 

of the litigants and the court.

MARY KAY KANE, 7AA FED. PRAC. & PROC. CIV. § 1780 (3d ed. Apr. 2023 

update). 

As we discuss later in this Opinion, perhaps South Central may 

request alteration or amendment to the class certification order or pursue motions 

for dismissal or summary judgment on certain claims in the future. However, we 

view Johnson’s arguments that class action would be a superior way to resolve the 

fee disputes here as much more compelling than South Central’s arguments to the 
-30-

contrary. And we quote with approval the following portion of the appellee brief 

regarding the superiority of a class action for resolving this type of dispute:

this is a straightforward case where Appellee’s 

[Johnson’s] and class members’ claims uniformly turn on 

South Central’s standardized fees charged under a form 

adhesion contract – as shown by the class-wide evidence, 

including unrebutted expert testimony that the relevant 

overcharges can be systematically identified from South 

Central’s own data. This is precisely the type of case 

suited for class certification, and the trial court did not 

abuse its discretion. 

To the extent that there are any (if any at all) 

individual issues, they are negligible and do not defeat 

manageability. Indeed, if a class action cannot be 

certified in a case where a bank has charged thousands of 

customers the same fees under the same contracts using 

the same automated processes, it is hard to imagine how 

any case could be a class action. How else could the class 

members redress their claims? Bringing thousands of 

individual claims for paltry damages is unworkable and 

precisely why courts recognize classes as superior forms 

of adjudication. This is a far cry from the management 

issues in Sowders v. Atkins, 643 S.W.2d 344, 346-47 (Ky. 

1983), where the plaintiff brought civil rights claims 

against county-judges and jailers in 78 counties, or where 

individuals were charged different fees for different 

reasons in Lamar v. Office of Sheriff of Daviess County, 

669 S.W.3d 27, 29 (Ky. Ct. App. 1984). Rather, the 

circumstances here present the textbook case of why 

class actions exist – so that parties and courts can 

efficiently resolve disputes about a systemic, uniform 

practice that has affected many people. 

 

In short, we discern no error in the trial court’s finding that a class 

action would be a superior method of resolving the fee disputes based on the 
-31-

record and applicable law. Having discerned no reversible error in the trial court’s 

findings regarding individual CR 23.01 and CR 23.02 requirements, we next 

address whether the trial court conducted sufficiently rigorous analysis of CR 

23.01 and CR 23.02 requirements. 

Trial Court Conducted Rigorous Analysis of CR 23 Requirements

South Central’s brief claims the trial court erred by “failing to conduct 

a rigorous analysis of Johnson’s claims.” But the key question is whether the trial 

court conducted a rigorous analysis of CR 23 requirements, not whether it 

conducted a rigorous analysis of the merits of Johnson’s or others’ claims. 

Hensley, 549 S.W.3d at 437 (at class certification stage, trial court may consider 

merits questions about claims only to the extent that they reflect on whether CR 23 

requirements are met). 

Having carefully examined the trial court’s findings of all necessary 

CR 23.01 and CR 23.02 requirements, we reject any contention that the trial court

failed to rigorously analyze whether certification requirements were met. We 

further reject South Central’s argument that the trial court improperly took all 

allegations in the complaint as true without properly considering whether evidence 

showed CR 23 requirements were met. 

South Central contends that the trial court erroneously concluded that 

the bank’s “uniform contract and standardized fee assessment practices, including 
-32-

the automatic processing of transactions and assessment of fees through its ‘core 

processor’” were commonly applied to Johnson and class members. It argues that 

if the trial court had examined Johnson’s account agreement, it would have found 

that this agreement permitted some of the challenged fees (such as multiple fees on 

the same returned items) so her claims were not typical, and she could not fairly 

and adequately represent the class. 

Johnson contends that this would be determining the merits of a 

breach of contract claim, which is not called for at the class certification stage, but 

which perhaps might be appropriately resolved through a summary judgment 

motion. She asserts that despite not resolving the merits of breach of contract 

claims, the trial court examined the terms of account agreements and appropriately 

determined such account agreements were uniform among account holders. She

also suggests that South Central’s merit-based argument shows why the case is 

appropriate for class action resolution – since claims could be resolved in “one 

stroke” when the trial court properly determines whether uniform contracts were 

breached by the fee assessment practices. See Hensley, 549 S.W.3d at 443. 

So, Johnson contends the court engaged in the rigorous analysis of CR 

23 requirements by, inter alia, examining the terms of the account agreement and 

determining they were uniform among account holders at relevant times. We also

recognize the trial court did not simply take all allegations of the complaint as true 
-33-

for purposes of determining if CR 23 requirements were met. Instead, the trial 

court allowed the parties to brief certification issues at length, heard oral argument

regarding class certification issues, and even called for the filing of a supplemental 

affidavit of the plaintiff’s expert before resolving the class certification issue. 

While the class certification order entered by the trial court bears 

some substantial similarities to the proposed class certification order submitted by 

Johnson,13 the class certification order identifies evidence in the record relevant to 

CR 23 requirements. It also applies relevant state and federal case precedent in 

determining that CR 23 requirements are met and deciding that class certification 

is appropriate. And though its discussion of some CR 23 requirements in the class 

certification order may be somewhat brief or conclusory, it discussed each relevant 

requirement and its findings on CR 23 requirements are supported by substantial 

evidence in the record. 

In short, despite any imperfections asserted by South Central, we 

discern that the trial court’s analysis of class action certification issues was 

13 Kentucky precedent has long recognized “the delegation of the clerical task of drafting 

proposed findings of fact and conclusions of law under the proper circumstances does not violate 

the trial court’s responsibility” so long as the trial court is thoroughly familiar with the record 

and does not abdicate its fact-finding and decision-making responsibilities. See Bingham v. 

Bingham, 628 S.W.2d 628, 629 (Ky. 1982). Despite the class certification order largely

reflecting the proposed class certification order with some modifications, we are satisfied that the 

trial court was familiar with the record and did not abdicate its fact-finding and decision-making 

responsibilities in considering class certification issues based on our review of the record –

especially recordings of hearings. 
-34-

sufficiently rigorous and that its decision is not an abuse of discretion. See 

Hensley, 549 S.W.3d at 446 (despite some minimal and conclusory findings of CR 

23 requirements and the brevity of the class certification order, trial court went 

beyond the pleadings in allowing discovery, briefing and oral argument on 

certification issues; its analysis was sufficiently rigorous, and it did not abuse its 

discretion). 

No Reversible Error in Trial Court’s Rejecting Argument that Proposed 

Class Definitions Were Overly Broad

In addition to arguing that the trial court erred in finding all CR 23.01 

and CR 23.02 requirements to be met, South Central argues the class definitions 

are overly broad. For example, it points to the class definitions not excluding 

business account holders despite the KCPA only recognizing a private cause of 

action for those suffering losses from buying services or goods “primarily for 

personal, family or household purposes[.]” KRS 367.220(1). It also contends the 

class definitions are overly broad because they include persons whose unjust 

enrichment and KCPA claims are barred by applicable statutes of limitations. 

South Central also asserts that Johnson conceded the classes were 

overly broad. It points to her statement in a brief to the trial court stating that even 

if the 2019 contract amendment authorized multiple fees, the multiple fee class 

“could be modified to reflect the shortened time period when the amendment was 

not in place, or judgment could be entered in favor of the Class for one period of 
-35-

time and for South Central for the other period of time.” The bank also points to 

another statement in Johnson’s briefs that: “The Court can easily exclude business 

accounts from the proposed class definition for purposes of the KCPA claim . . . .” 

Johnson disagrees with the contention she conceded the class 

definitions were overly broad. She points out, the fact the trial court can modify 

the definition of the class in the certification order as the case proceeds pursuant to 

CR 23.03(3), does not mean that certification is improper. She further asserts: 

“The class definition need not be drafted with hyper specificity to account for 

every plausible exclusion or inclusion, especially in light of the trial court’s broad 

authority, under CR 23.03(3), to alter or amend a class certification at any time 

before final judgment.” 

Johnson also suggests that South Central did not raise the overbreadth 

argument to the trial court and thus did not properly preserve this issue for review. 

But South Central argues that it did raise the issue of the proposed class definitions 

being allegedly overly broad, citing generally to its twenty-four-page response to 

class certification.

We agree with South Central that the overbreadth issue was 

preserved, although the lack of pinpoint citation to a specific page of a twentyfour-page document is not ideal. Nonetheless, South Central did argue the class 
-36-

definitions had an “overly broad temporal scope” and failed to exclude business 

accounts despite the assertion of KCPA claims. 

Although the overbreadth issue is preserved, no relief on this issue is 

merited at this time. As our Supreme Court stated in rejecting a similar argument 

that a class definition was overbroad: “The class definition identifies exactly who 

is and is not included in the class and provides the trial court with initial guidance 

as to how this lawsuit is to proceed.” Hensley, 549 S.W.3d at 449. Similarly, the 

class definitions here identify who is included in the classes and provide the trial 

court with initial guidance as to how the lawsuit should proceed. 

The focus of the class certification inquiry is whether the class is 

ascertainable and whether CR 23.01 and CR 23.02 requirements are met – not 

whether all class members will ultimately succeed on each claim asserted. As our 

Supreme Court aptly stated in Hensley:

Merits questions may be considered to the extent-but 

only to the extent-that they are relevant to determining 

whether the Rule 23 prerequisites for class certification 

are satisfied. . . . Rule 23 requires a showing that 

questions common to the class predominate, not that 

those questions will be answered, on the merits, in favor 

of the class. . . . A suit may be a proper class action, 

conforming to Rule 23, and still be dismissed for failure 

to state a cause of action. 

Id. at 437 (internal quotation marks and footnotes omitted). 
-37-

Given the trial court’s authority to alter or amend its class certification 

order under CR 23.03(3) and the fact that class certification does not amount to a 

finding that all class members shall recover on all claims asserted, we see no need 

to disturb the trial court’s interlocutory class certification order

14 at this time:

We note at this preliminary stage of this litigation, and as 

this litigation proceeds, that the trial court has several 

tools at hand to address the concerns of all those involved 

in this litigation. The trial court can create subclasses 

within the general class to address the concerns of the 

defendants in this case, including the allegation that this 

case really concerns three different and distinct groups of 

[plaintiffs] and that the case is unmanageable. If the 

current class definition proves to be unworkable or 

unascertainable, the trial court can modify the class 

definition. And, nothing prevents the trial court from 

decertifying the class at any point during the proceedings 

if the need so arises.

Hensley, 549 S.W.3d at 450 (internal quotation marks and footnotes omitted). 

Nothing in this Opinion prevents South Central from filing any motion to alter or 

amend the class certification order to define the classes more narrowly or filing 

appropriate motions for dismissal or summary judgment. And we expect the trial 

court will appropriately rule on such motions and exercise its authority to create 

subclasses or otherwise correct any overbreadth in class definitions as necessary.

14 As our Supreme Court recognized in Hensley, class certification orders are interlocutory but 

appeals from class certification orders are expressly permitted by CR 23.06. Such appeals from 

class certification orders are subject to “strict parameters” meaning that appellate courts will not 

engage in analyzing complex issues about the merits of the claims asserted but will simply 

determine whether the trial court erred in certifying the class based on CR 23 requirements. 549 

S.W.3d at 436. 
-38-

Further arguments in the parties’ briefs which are not discussed herein 

have been determined to lack merit or relevancy to our resolving this appeal from 

the class certification order. 

CONCLUSION

For the foregoing reasons, we affirm the trial court’s certification of 

the class action. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Byron E. Leet

Jordan M. White

Matthew L. Bunnell

Louisville, Kentucky

ORAL ARGUMENT FOR 

APPELLANT:

Byron E. Leet

Louisville, Kentucky

BRIEF FOR APPELLEE:

Andrew E. Mize

J. Gerard Stranch, IV, pro hac vice

Nashville, Tennessee

ORAL ARGUMENT FOR 

APPELLEE:

J. Gerard Stranch, IV, pro hac vice

Nashville, Tennessee