Opinion
Case No. 2:19-cv-05050
2022-11-21
Scott Lee BRAUN, et al., Plaintiffs, v. COULTER VENTURES, LLC, d/b/a Rogue Fitness, et al., Defendants.
Robert E. DeRose, II, Jacob Assaf Mikalov, Brian Richard Noethlich, Barkan Meizlish DeRose Cox, LLP, Columbus, OH, Edward Reilley Forman, Helen M. Robinson, Samuel Micah Schlein, John Spenceley Marshall, Madeline Jean Rettig, Marshall and Forman, LLC, Columbus, OH, for Plaintiffs. Daniel L. Messeloff, FisherBroyles LLP, Cleveland, OH, Melissa Z. Kelly, Tucker Ellis LLP, Cleveland, OH, for Defendants.
Robert E. DeRose, II, Jacob Assaf Mikalov, Brian Richard Noethlich, Barkan Meizlish DeRose Cox, LLP, Columbus, OH, Edward Reilley Forman, Helen M. Robinson, Samuel Micah Schlein, John Spenceley Marshall, Madeline Jean Rettig, Marshall and Forman, LLC, Columbus, OH, for Plaintiffs. Daniel L. Messeloff, FisherBroyles LLP, Cleveland, OH, Melissa Z. Kelly, Tucker Ellis LLP, Cleveland, OH, for Defendants. OPINION & ORDER ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE
This matter is before this Court on Plaintiffs' Motion to Declare that S.B. 47 is Not Retroactive (ECF No. 171), seeking a declaration from this Court that the amendment to Ohio Revised Code Section 4111.10 is applicable to this instant case. For the reasons set forth below, the Motion is GRANTED.
I. BACKGROUND
On November 18, 2019, Plaintiff Scott Lee Braun, on behalf of himself and all similarly situated individuals, filed his Complaint against Defendants for their alleged failure to compensate employees accurately for all hours worked in violation of Federal Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 201, et seq., The Ohio Minimum Fair Wage Standards Act ("the Ohio Wage Act"), O.R.C. §§ 4111.01., 4111.03 and 4111.10, and the Ohio Prompt Pay Act ("the OPPA"). (ECF No. 1). Plaintiffs' Second Amended Collective and Class Action Complaint, filed on April 22, 2020, is the operative complaint. (ECF No. 44). On July 6, 2022, an amended version of Ohio Revised Code § 4111.10 signed into law via Senate Bill 47 ("S.B. 47") took effect, providing in relevant part that:
(C) No employee shall join as a party plaintiff in any civil action that is brought under this section by an employee, person acting on behalf of an employee, or person acting on behalf of all similarly situated employees unless that employee first gives written consent to become such a party plaintiff and that consent is filed with the court in which the action is brought.O.R.C. § 4111.10(C). Pursuant to an Order from this Court (ECF No. 165), the parties briefed the issue of whether O.R.C. § 4111.10(C) applies retroactively to the instant case. (ECF Nos. 170, 171).
II. LAW AND ANALYSIS
Ohio Revised Code § 1.48 provides that "[a] statute is presumed to be prospective in its operation unless expressly made retrospective." Although the Ohio General Assembly "ha[s] no power to pass retroactive laws," the Ohio Supreme Court has held that "retroactivity itself is not always forbidden by Ohio law." Ackison v. Anchor Packing Co., 120 Ohio St.3d 228, 2008-Ohio-5243, 897 N.E.2d 1118, ¶ 10. Instead, the Ohio Supreme Court recognizes "a crucial distinction between statutes that merely apply retroactively (or 'retrospectively') and those that do so in a manner that offends our Constitution." Id.
The Ohio Supreme Court's two-part test to determine whether a statute is unconstitutionally retroactive requires that "the reviewing court must determine as a threshold matter whether the statute is expressly made retroactive" and then, "[i]f a statute is clearly retroactive . . . then determine whether it is substantive or remedial in nature." Id. at ¶ 12. The Ohio Supreme Court has explained the difference between a "substantive" statute and a "remedial" statute thus:
[i]t is well established that a statute is substantive if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction, or creates a new right . . . Remedial laws, however, are those affecting only the remedy provided, and include laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right.State v. Hubbard, 167 Ohio St.3d 77, 2021-Ohio-3710, 189 N.E.3d 720, ¶ 14. If the statute is substantive, this renders it "unconstitutionally retroactive, as opposed to merely remedial." Ackison, 120 Ohio St. 3d 228, 2008-Ohio-5243, 897 N.E.2d 1118, at ¶ 13 (emphasis in original). The Ohio Supreme Court, however, also emphasized that "[t]he General Assembly's failure to clearly enunciate retroactivity ends the analysis, and the relevant statute may be applied only prospectively." Id. at ¶ 12. In other words, "[t]he issue of whether a statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly specified that the statute so apply." State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, at ¶ 8 (citation omitted).
Plaintiffs argue that there is no indication in S.B. 47 or in O.R.C. § 4111.10(C) itself that the legislature intended the statute to apply retroactively. Besides, Plaintiffs assert, O.R.C. § 4111.10(C) would be unconstitutionally substantive even if retroactive; this is because its intended effect is to restrict the size of overtime class actions by imposing an additional hurdle, opting in (rather than opting out), to the process. Defendants argue that they are not seeking to apply the statute retroactively, but rather to apply it prospectively to a pending case. Defendants assert that the question of the retroactive or prospective application of a new law to a pending case is not dependent upon when the complaint was filed, but rather upon whether any "past events" in the litigation are impacted by the new law. And here, Defendants contend, Plaintiffs "have not moved for class certification so as to give rise to anyone's right to join the Ohio state law class in the first place." Even if this Court concluded that application of the new law to the instant case would be retroactive, Defendants maintain, this would not be unconstitutional because no putative class members' vested rights would be impacted. Instead, according to Defendants, O.R.C. § 4111.10(C) merely requires any further employees who desire to join the case to give written consent to do so; but each class member in the instant case has already decided whether to join by this stage in the litigation.
This Court finds it unnecessary to determine whether O.R.C. § 4111.10(C) is remedial or substantive because the statute does not survive the threshold inquiry on retroactivity. Contrary to Defendants' argument, the Ohio Supreme Court has indicated that a law is "retroactive" if it applies to cases that were pending on the date that the law entered into effect. See, e.g., Kiser v. Coleman, 28 Ohio St.3d 259, 262, 503 N.E.2d 753, 756 (1986) (holding that where "there is no clear indication of retroactive application, then the statute may only apply to cases which arise subsequent to its enactment."); Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100, 103, 106, 522 N.E.2d 489, 493, 496 (1988) (finding that the legislature clearly expressed its intent that former O.R.C. § 4121.80(H) be retroactive by writing that "[t]his section applies to and governs any action . . . pending in any court on the effective date of this section . . . notwithstanding any provisions of any prior statute or rule of law of this state."); Ackison, 120 Ohio St. 3d at 230, 2008-Ohio-5243, 897 N.E.2d at 1122, at ¶ 8 (characterizing the question at bar of whether several Ohio statutes applied to cases that were pending when they entered effect as an inquiry into whether the statutes were retroactive). Similarly, the instant case was pending at the time that O.R.C. § 4111.10(C) became effective; as such, any application of said law to this case would be retroactive.
When confronted previously with the question of whether to apply retroactively a statute that was silent on the issue of retroactivity, this Court declined to do so. See Erwin v. Honda N. Am., Inc., No. 2:20-CV-4350, 2022 WL 3716561, at *10 n.7 (S.D. Ohio Aug. 29, 2022) (Marbley, J.) (declining to apply O.R.C. § 4112.052(C)(1) retroactively to Plaintiffs' claims because the statute did not mention retroactivity). Because O.R.C. § 4111.10(C) similarly makes no mention of retroactivity, this Court likewise decline to apply it retroactively to Plaintiff's claims. See Ackison, 120 Ohio St. 3d at 231, 2008-Ohio-5243, 897 N.E.2d at 1123, at ¶ 12 (holding that "[t]he General Assembly's failure to clearly enunciate retroactivity ends the analysis, and the relevant statute may be applied only prospectively."). Under the circumstances of the case sub judice, this Court continues to decline to apply retroactively a statute silent on the issue of retroactivity.
III. CONCLUSION
Given the foregoing reasons, Plaintiffs' Motion to Declare that S.B. 47 is Not Retroactive (ECF No. 171) is GRANTED. Accordingly, this Court DECLARES that O.R.C. § 4111.10(C) does not apply retroactively to the instant case.
IT IS SO ORDERED.