Kentucky

Kentucky UPEPA Held Not Available In Federal Court In Peach

Published

2 years ago

May 11, 2024

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Kentucky UPEPA Held Not Available In Federal Court In Peach

The Bluegrass State Protects Free Speech Unless You Are In Federal Court

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The case of Peach v. Hagerman, 2024 WL 1748443 (W.D.Ky., April 23, 2024), arose from a Kentucky social worker who filed a complaint alleging possible child abuse. The person against whom the claim was made prevailed and fought off the charges at a hearing, and then sued the social worker for malicious prosecution, defamation and some other things arising from the social worker’s complaint. The social worker filed a motion to dismiss the lawsuit under Kentucky’s new Uniform Public Expression Protection Act (UPEPA), asserting the social worker’s protected right to file her complaint.

Now, however, we get to the inevitable fly in the ointment: The lawsuit had been filed not in Kentucky state court, but rather in the U.S. District Court for the Western District of Kentucky. Even before the UPEPA special motion to strike could be heard, there was a preliminary question as to whether Kentucky’s UPEPA even applied at all in federal court.

The United States of course has a bifurcated legal system of federal and state courts. A federal court sitting in diversity jurisdiction, however, is to apply the state law of the district in which the federal court is found. However, federal courts have their own procedural rules, embodied in the Federal Rules of Civil Procedure, known as the FRCP. What happens when the FRCP conflicts with state law?

The rule stated by the U.S. Supreme Court is that if the FRCP answers whatever issue is before the district court, then the FRCP shall apply to resolve that issue to the exclusion of the contrary state law. The question before the district court here is whether the Kentucky UPEPA should apply to allow the social worker a chance for an early dismissal of the plaintiff’s defamation case, or whether the FRCP should apply as it normally does in cases to allow the plaintiff to conduct discovery before the court seriously dismissal.

The district court noted that there was a split of rulings between the U.S. Circuit Courts of Appeals. The U.S. Circuits which have ruled that the FRCP applies instead of a state’s Anti-SLAPP laws (which would include the UPEPA) are the 2nd, 5th, 10th, 11th and DC Circuits. However, the 1st and 9th Circuits have gone the other way and held that the applicable state’s Anti-SLAPP laws should apply instead of the FRCP. Kentucky sits in the 6th Circuit, which so far as not decided the issues, although the district court noted that an appeal of this issue from Tennessee was before the 6th Circuit. So what to do?

The district court here held to the effect that the FRCP essentially provides for a procedure for dismissal of a claim through a summary judgment motion (FRCP 56), and this motion may be held at the onset of the litigation through an FRCP 12(b)(6) motion to dismiss. Thus, since the FRCP already resolved the issue, there FRCP would be applied instead of the Kentucky UPEPA.

Having held that the Kentucky UPEPA would not apply since the FRCP allows for an early dismissal of a claim, the court then next noted that summary judgment should not ordinarily be granted until the parties had completed discovery, which had not happened in this case. Therefore, the social worker’s motion was denied.

ANALYSIS

Although couched as procedural statutes, Anti-SLAPP statutes (including the UPEPA) are instead substantive law statutes that provide a substantive right to persons to be free of extended litigation when they are sued as a result of their lawful exercise of their free speech rights. The Prefatory Note to the UPEPA states:

“An Anti-SLAPP law, at its core, is one by which a legislature imposes external change upon judicial procedure, in implicit recognition that the judiciary has not itself modified its own procedures to deal with this specific brand of abusive litigation. Although procedural in operation, these laws protect substantive rights, and therefore have substantive effects. So, it should not be surprising that each of the 34 legislative enactments have been performed statutorily—none are achieved through civil-procedure rules.”

Comment 2 to UPEPA § 2 elaborates:

“Although the Act operates in a procedural manner—specifically, by altering the typical procedure parties follow at the outset of litigation—the rights the act protects are most certainly substantive in nature. See U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972-973 (9th Cir. 1999) (applying California’s anti-SLAPP law to diversity actions in federal court because the statute was ‘crafted to serve an interest not directly addressed by the Federal Rules: the protection of ‘the constitutional rights of freedom of speech and petition for redress of grievances.’). Otherwise stated, the Act’s procedural features are designed to prevent substantive consequences: the impairment of First Amendment rights and the time and expense of defending against litigation that has no demonstrable merit. Williams v. Cordillera Comms., Inc., No. 2:13–CV–124, 2014 WL 2611746, at * 1 (S.D. Tex. June 11, 2014). As stated by one California court, ‘[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.’ People ex rel. Lockyer v. Brar, 115 Cal. App. 4th 1315, 1317 (4th Dist. 2004).”

That some of the U.S. Circuits have utterly missed this point has lead to forum shopping on these Circuits by way of defamation plaintiffs bringing in federal court what would otherwise be purely state court proceedings, just to avoid the state Anti-SLAPP laws. How the Sixth Circuit will ultimately handle these cases is anybody’s guess, but eventually the U.S. Supreme Court will need to resolve the split within the Circuits, assuming that Congress does not take the matter into its own hands.

If you are curious about how the Federal Rules of Civil Procedure come about, the Rules Enabling Act of 1934 (28 USC § 2071, et seq.) authorizes the U.S. Supreme Court to enact court rules or procedure. Our highest court, however, delegates that function to the Judicial Conference to come up with those rules. The Judicial Conference is made up of ― you guessed it ― judges of the U.S. Circuit and District Court. The Judicial Conference is thus made up of the very judges who have failed to take action against the problem of so-called SLAPP suits in the first place. “Nothing to see here, Ma’am, now please do just move along.”

Ideally, the Judicial Conference would amend FRCP 12, which is the rule that allows for the dismissal of certain cases before the litigation really starts rolling along, so as to better protect free speech defendants from meritless litigation, but they have not done so. As just discussed, federal judges are historically loathe to admit that there is even any problem with anything in the first place, and so the odds of that happening are low. Thus, if anything is going to happen with Anti-SLAPP in the federal courts, it will likely take Congressional action to make it happen.

From time to time, Anti-SLAPP Acts have been introduced into various sessions of Congress, but those introductions have gone nowhere as so much good legislative proposals have done with that highly dysfunctional institution. This is odd as at the state level, at least, Anti-SLAPP legislation has proven to be that rare breed which is popular with both political parties. Nonetheless, with Anti-SLAPP legislation now having been adopted by a solid majority of states, pressure for a federal statute will continue to grow and I expect that someday we will seen a President sign it into law.

In the meantime, at the federal level the application of Anti-SLAPP laws is a mess as demonstrated by this case.

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Kentucky

The Indiana game is a must-win for Kentucky, even in December

Published

10 hours ago

December 13, 2025

Press Room

The Indiana game is a must-win for Kentucky, even in December

One week ago, I wrote that Kentucky needed to show us something against Gonzaga. Unfortunately, it did, in a bad way. The Cats’ 35-point loss to the Bulldogs was their fourth to a ranked team this year. It was a performance so abysmal that the team got booed off the floor at halftime. Ever since, BBN has been in a tailspin, uncertainty about the program’s short-and long-term future hanging over the Bluegrass like a thick fog.

Kentucky has already gotten back in the win column, beating NC Central by 36 on Tuesday night; however, the true test of whether or not the Cats have reached rock bottom is Saturday vs. Indiana. The Hoosiers are 8-2, losing to Minnesota and Louisville last week. They rebounded from the 87-78 loss to the No. 6 Cards by routing Penn State 113-72 on Tuesday, thanks in large part to 44 points from Lamar Wilkerson, who picked Indiana over Kentucky out of the transfer portal this past April.

Both Kentucky and Indiana fell out of the AP and Coaches Polls this week, hovering near each other in the group of “others receiving votes.” KenPom ranks Kentucky No. 20 and Indiana No. 21. It gives the Cats a 4-point edge in Saturday’s game, while BetMGM goes a half-point higher at 4.5.

Thank goodness this one’s at Rupp because it’s a must-win, in more ways than one.

Resume

Let’s start with the most basic: the schedule. It may feel premature to start worrying about the NCAA Tournament, but we’re 10 games in, one-third of the way through the regular season, and Kentucky still doesn’t have a good win, going 0-4 in said opportunities. The highest-ranked team the Cats have beaten so far is Valparaiso, which ranks No. 191 in the NET rankings. All of Kentucky’s wins are in Quad 4, all of its losses in Quad 1. Quad 1 losses don’t hurt you a ton, but at some point, you have to pick up some meaningful wins to offset them.

The Cats have two more chances to pick up a Quad 1 win before SEC play begins: vs. Indiana and St. John’s. Over half of Kentucky’s conference games are in Quad 1; before starting that gauntlet, we need to see that the Cats are capable of winning one. Of the two coming up, beating Indiana in Rupp feels more manageable than Mark Pope taking down his old coach, Rick Pitino, and St. John’s next weekend in Atlanta.

Lamar Wilkerson

Much has been said about Kentucky’s struggles with recruiting this week. Most of that conversation has centered around high school recruiting, not the transfer portal, but Lamar Wilkerson is one of the biggest portal targets Mark Pope missed on this past offseason. Kentucky felt so good about landing him that Mark Pope took him to the winner’s circle at Keeneland. Instead, Wilkerson went to Indiana, the Hoosiers sweetening the pot at the last minute.

On Tuesday, Wilkerson set an Indiana record with 10 three-pointers in the win over Penn State. He is averaging 18.8 points and 3.5 made threes per game this season. There were other whiffs for Pope and his staff during the offseason, but Wilkerson will take center stage at Rupp tomorrow night, at a time when Kentucky’s $22 million team is the laughing stock of college basketball.

Please don’t let him get hot.

Lock in for the 2025 Kentucky Basketball season with KSR Plus! We’re giving you behind-the-scenes intel you won’t find anywhere else. Join the most passionate online community in the BBN during Mark Pope’s second season.

Fan fatigue

You don’t need me to tell you BBN is unhappy. The boos in Nashville were ugly proof of the unrest in the fanbase now. Concerns about recruiting and the school’s partnership with JMI, as outlined by Jacob Polacheck and Jack Pilgrim earlier this week, aren’t helping. Mark Pope struck a different tone on Tuesday night, using his bench to send messages to Kam Williams, Jaland Lowe, and Brandon Garrison, and biting back anger afterward as he talked about how his team continues to fall short of the standard. On the player side, Otega Oweh seemed to step up as a leader, scoring a season-high 21 points and insisting all is well in the locker room during interviews, one of which took place with his teammates surrounding him.

On Saturday, we get to see if those baby steps of progress are enough to avoid a fifth loss. Kentucky has already lost one home game this season, last week vs. North Carolina. Given all that’s happened since, there might be boos if the Cats pick up a second tomorrow night.

Fear of becoming Indiana

Indiana used to be one of Kentucky’s biggest rivals; for fans of a certain age, the Hoosiers may still be. Over the past 20 or so years, Indiana has faded to irrelevance. The Hoosiers haven’t gone to a Final Four since 2002. There’s a reason they put Christian Watford’s buzzer-beater vs. Kentucky in 2011 on a popcorn box; they haven’t had much else to celebrate.

As Kentucky fans, we’ve made our fair share of jokes about Indiana, but it’s not quite as funny now that the Cats haven’t gone to the Final Four in a decade, won an SEC regular-season championship since 2019-20, or an SEC Tournament title since 2017-18. For all our hopes that Mark Pope would be the one to turn it around, Kentucky still hasn’t won a big game this season. As Mark Story outlined in the Herald-Leader, Kentucky could be on the path to becoming the next Indiana, which makes Saturday’s game even bigger. With this being the first game in a four-year series, it could be an annual reminder if things keep trending in this direction.

So, please, Kentucky, win this basketball game. You can make it my early Christmas gift.

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Kentucky

Kentucky lawmaker introduces federal bill to fight pharmacy benefit managers

Published

22 hours ago

December 12, 2025

Press Room

Kentucky lawmaker introduces federal bill to fight pharmacy benefit managers

WASHINGTON, D.C. — A Kentucky lawmaker is taking the fight for pharmacists to Washington.

Representative James Comer introduced the Pharmacists Fight Back Act on Thursday.

Kentucky already has a similar law in place that WKYT Investigates’ Kristen Kennedy has been following as the state works to get the law enforced.

Kentucky pharmacists may now get help on the federal level.

“Rarely does a day go by without hearing from my constituents in Kentucky who are struggling under the weight of soaring prescription drug costs,” Comer said. “The questions I’m consistently asked are, ‘why? Who is benefiting from the system? Why isn’t it patients?’ My response is the same each time. It’s the PBMs.”

Federal bill targets pharmacy benefit managers

Comer says pharmacy benefit managers have outgrown their role in healthcare. State legislators agreed when they passed Senate Bill 188 last year. The law was supposed to increase reimbursement rates for pharmacies and keep PBMs from steering patients to affiliated pharmacies.

The regulations are similar to what Comer wants to do on a federal level.

“Our oversight investigation, which culminated in a report last year with our findings and recommendations, found PBMs have largely operated in the dark,” Comer said. “PBMs have abused their positions as middlemen to line their own pockets by retaining rebates and fees, undermine our community pharmacists and pass along costs to patients at the pharmacy counter. It’s unacceptable, and Congress has a responsibility to act.”

If the act becomes law, it would affect pharmacies across the U.S.

Pharmacists in Kentucky are already seeing some advantages with the regulations placed on pharmacy benefit managers, but their biggest complaint is that the law isn’t being enforced.

That could change if the federal government gets involved. The Kentucky Pharmacists Association thinks Frankfort has a responsibility to act on the PBM law that passed in the state. They’re still asking the governor to make sure the Department of Insurance is enforcing the law in place.

Stay informed on investigations like this by checking out our WKYT Investigates page at wkyt.com/investigates.

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Kentucky

Several people hurt in Western Kentucky Parkway multi-car accident, officials say

Published

1 day ago

December 12, 2025

Press Room

Several people hurt in Western Kentucky Parkway multi-car accident, officials say

MUHLENBERG, Ky. (WFIE) – Kentucky officials says there are multiple people injured in a three-car accident on Western Kentucky Parkway.

According to a post made by the Central City Fire Department, three vehicles were involved in a crash between the 64 and 65 mile markers eastbound of the parkway.

They say both the eastbound and westbound lanes are closed at this time. The closure should last around 3 hours.

Two people were extricated from a vehicle. Four adults and three juveniles are being taken to the hospital. No update has been given on their conditions.

They say a mass casualty incident was declared, and Ohio County Fire and EMS were called to the scene due to the number of patients.

We will update you when we learn more.

Several people hurt in Western Kentucky Parkway multi-car accident, officials say(Central City Fire Department)

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