In the

Supreme Court of Ohio

MICHAEL CIRINO, et al.,

Plaintiffs-Appellees,

v. OHIO BUREAU OF WORKERS’ COMPENSATION,

Defendant-Appellant.

::::::::::

Case No. 2017-0179 On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District Court of Appeals Case No. 104102

______________________________________________________________________________

MERIT BRIEF OF APPELLANT OHIO BUREAU OF WORKERS COMPENSATION

______________________________________________________________________________

PAUL W. FLOWERS* (0046625) *Counsel of Record Paul W. Flowers Co., L.P.A. Terminal Tower, Suite 1910 50 Public Square Cleveland, Ohio 44113 216-344-9393 pwf@pwfco.com

W. CRAIG BASHEIN (0034591) JOHN P. HURST (0010569) Bashein & Bashein Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113 216-771-3239

CHARLES J. GALLO (0043714) Charles J. Gallo Co., L.P.A. 55 Public Square, Suite 2222 Cleveland, Ohio 44113 216-771-5105

Counsel for Plaintiffs-Appellees

MICHAEL DEWINE (0009181) Attorney General of Ohio

ERIC E. MURPHY* (0083284) State Solicitor *Counsel of Record MICHAEL J. HENDERSHOT (0081842) Chief Deputy Solicitor MARK E. MASTRANGELO (0023603) JEFFREY B. DUBER (0018532) Assistant Attorneys General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 eric.murphy@ohioattorneygeneral.gov

RONALD D. HOLMAN, II (0036776) MICHAEL J. ZBIEGIEN, JR. (0078352) DANIEL H. BRYAN (0095309) Special Counsel appointed by the Attorney General Taft Stettinius & Hollister L.L.P. 200 Public Square, Suite 3500 Cleveland, Ohio 44114 216-241-2838 rholman@taftlaw.com

Counsel for Defendant-Appellant Ohio Bureau of Workers’ Compensation

Supreme Court of Ohio Clerk of Court - Filed December 12, 2017 - Case No. 2017-0179

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ................................................................................................................. i 

TABLE OF AUTHORITIES ......................................................................................................... iii 

INTRODUCTION ...........................................................................................................................1 

STATEMENT OF THE CASE AND FACTS.................................................................................3 

A.  The Bureau of Workers’ Compensation changed the way it delivers benefits to save money for the program and workers. ...................................................................................3 

B.  Cirino brought a class action challenging the Chase fees. ...................................................5 

ARGUMENT ...................................................................................................................................8 

Appellant Bureau’s Proposition of Law:  

Only a suit to recover specific funds held by a State defendant, or suits over which the State consented to be sued before the effective date of the Court of Claims Act, are proper in the common pleas court. All other suits against the State must be filed in the Court of Claims. .........................................................................................................8 

A.  Most claims against the State must be litigated in the Court of Claims. .............................8 

1.  Before 1975, the State was immune from most lawsuits. ........................................8 

2.  In 1975, the State broadly waived its immunity, but only for suits in the Court of Claims. ...............................................................................................................11 

B.  Cirino’s suit belongs in the Court of Claims because this Court’s most recent precedent is directly on point, because his suit qualifies as legal rather than equitable restitution, and because the State had never consented to suit for anything resembling his claim before 1975. ........................................................................................................13 

1.  Cirino’s lawsuit belongs in the Court of Claims because his allegations implicate his contract with Chase. .........................................................................14 

2.  Cirino’s lawsuit belongs in the Court of Claims because he seeks legal—not equitable—restitution. ............................................................................................17 

a.  The court of common pleas have jurisdiction over—at most—claims against the State that seek only “equitable relief.” ....................................17 

b.  Under these principles, Cirino seeks legal restitution because he seeks funds that are not in the State’s possession and not tied to its gain. ..........21 

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3.  More generally, Cirino’s suit cannot proceed in the common pleas court because the State never consented to suits of this kind before 1975. ....................24 

a.  Any ambiguities over whether jurisdiction exists outside the Court of Claims must be resolved by looking to the types of claims that were available against the State before the Court of Claims Act. ......................24 

b.  Separation-of-powers principles prohibit this Court from creating jurisdiction in the courts of common pleas. ...............................................26 

c.  Cirino’s claim would have been kicked out of courts of common pleas before 1975, and so it belongs in the Court of Claims today. ....................28 

C.  The Eighth District’s holding is not supportable. ..............................................................30 

CONCLUSION ..............................................................................................................................36 

CERTIFICATE OF SERVICE 

APPENDIX:

Notice of Appeal, Supreme Court of Ohio, Feb. 3, 2017 ....................................... Exhibit 1

Judgment and Opinion, Eighth Appellate District, Dec. 22, 2016 ......................... Exhibit 2

Entry and Opinion on Motion to Dismiss, Cuyahoga County Common Pleas, Mar. 12, 2012 .......................................................................................................... Exhibit 3

Entry and Opinion as to Class Certification, Cuyahoga County Common Pleas, Jan. 13, 2016 ........................................................................................................... Exhibit 4

Entry and Opinion on Summary Judgment Motions, Cuyahoga County Common Pleas, Jan. 13, 2016 ................................................................................................. Exhibit 5

Selected statutes ...................................................................................................... Exhibit 6

iii

TABLE OF AUTHORITIES

Cases Page(s)

Afridi v. Nat’l City Bank, 509 F.Supp.2d 655 (N.D. Ohio 2007) ......................................................................................19

Am. Life & Accident Ins. Co. v. Jones, 152 Ohio St. 287 (1949).....................................................................................................20, 30

Anderson v. Volmer, 83 Mo. 403 (1884) ...................................................................................................................34

Ashland Cty. Bd. of Comm’rs v. Ohio Dep’t of Tax., 63 Ohio St. 3d 648 (1992) .................................................................................................11, 27

Bank of Am., N.A. v. Kuchta, 141 Ohio St. 3d 75, 2014-Ohio-4275.......................................................................................27

Barnhill v. Johnson, 503 U.S. 393 (1992) .................................................................................................................32

Boggs v. State, 8 Ohio St. 3d 15 (1983)............................................................................................................13

Bullard v. Bell, 4 F. Cas. 624 (C.C.D.N.H. 1817) (No. 2,121) .........................................................................33

Burger Brewing Co. v. Liquor Control Comm’n, Dep’t of Liquor Control, 34 Ohio St. 2d 93 (1973) .........................................................................................................10

Cent. States, Se. & Sw. Areas Health & Welfare Fund v. First Agency, Inc., 756 F.3d 954 (6th Cir. 2014) ...................................................................................................22

Cincinnati Golf Mgmt. v. Testa, 132 Ohio St. 3d 299, 2012-Ohio-2846.....................................................................................35

City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999) ...........................................................................................................20, 33

Columbus City School Dist. Bd. of Educ. v. Testa, 130 Ohio St. 3d 344, 2011-Ohio-5534.....................................................................................25

Commodities Futures Trading Comm’n v. Levy, 541 F.3d 1102 (11th Cir. 2008) ...............................................................................................23

Complete Bldg. Show Co. v. Albertson, 99 Ohio St. 11 (1918).........................................................................................................33, 34

iv

Cox v. Blue Cross Blue Shield of Mich., 166 F. Supp. 3d 891 (E.D. Mich. 2015) ...................................................................................21

Cristino v. Ohio Bureau of Workers’ Comp., 118 Ohio St. 3d 151, 2008-Ohio-2013...................................................................17, 24, 25, 31

Cundall v. U.S. Bank, 122 Ohio St. 3d 188, 2009-Ohio-2523.....................................................................................25

Deutsche Bank Nat’l Tr. Co. v. Holden, 147 Ohio St. 3d 85, 2016-Ohio-4603.......................................................................................33

Drain v. Kosydar, 54 Ohio St. 2d 49 (1978) .............................................................................................26, 29, 30

Edelman v. Jordan, 415 U.S. 651 (1974) .................................................................................................................23

Ex parte Water Works & Sanitary Sewer Bd., 93 So. 3d 94 (Ala. 2012) ..........................................................................................................33

Feltner v. Columbia Pictures TV, 523 U.S. 340 (1998) .................................................................................................................33

Fraley v. Estate of Oeding, 138 Ohio St. 3d 250, 2014-Ohio-452.......................................................................................34

Friedman v. Johnson, 18 Ohio St. 3d 85 (1985) .............................................................................................12, 26, 30

Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) .....................................................................................................18, 22, 31

Green v. State Civil Serv. Comm’n, 90 Ohio St. 252 (1914)...............................................................................................................9

Halbach v. Great-West Life & Annuity Ins. Co., 561 F.3d 872 (8th Cir. 2009) ...................................................................................................22

Hanson v. Kynast, 24 Ohio St. 3d 171 (1986) .......................................................................................................35

Helfrich v. PNC Bank, Ky., 267 F.3d 477 (6th Cir. 2001) ...................................................................................................22

Hughes v. Oberholtzer, 162 Ohio St. 330 (1954)...........................................................................................................33

v

Kentucky v. Graham, 473 U.S. 159 (1985) .................................................................................................................10

Kerr v. Charles F. Vatterott & Co., 184 F.3d 938 (8th Cir. 1999) ...................................................................................................20

Krause v. State, 31 Ohio St. 2d 132 (1972) ...............................................................................................8, 9, 27

Liberty Mut. Ins. Co. v. Indus. Comm’n of Ohio, 40 Ohio St. 3d 109 (1988) .......................................................................................................26

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) .................................................................................................................11

McCord v. Ohio Div. of Parks & Recreation, 54 Ohio St. 2d 72 (1978) .........................................................................................................11

Measles v. Indus. Comm’n of Ohio, 128 Ohio St. 3d 458, 2011-Ohio-1523............................................................................. passim

Miers v. Zanesville and Maysville Turnpike Co., 11 Ohio 273 (1842) ....................................................................................................................8

Monaghan v. Richley, 32 Ohio St. 2d 190 (1972) .......................................................................................................30

Montanile v. Bd. of Trs. of Nat’l Elevator Indus. Health Benefit Plan, 136 S. Ct. 651 (2016) ....................................................................................................... passim

Ohio Acad. of Nursing Homes v. Ohio Dep’t of Job & Family Servs., 114 Ohio St. 3d 14, 2007-Ohio-2620.......................................................................................21

Ohio Bureau of Workers’ Comp. v. McKinley, 130 Ohio St. 3d 156, 2011-Ohio-4432.....................................................................................21

Palumbo v. Indus. Comm’n, 140 Ohio St. 54 (1942)..................................................................................................... passim

Paramount Film Distrib. Corp. v. Tracy, 175 Ohio St. 55 (1963).................................................................................................28, 29, 30

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ...................................................................................................................10

Porter v. Robb, 7 Ohio 206 (1835) ......................................................................................................................9

vi

Pounds Photographic Labs, Inc. v. Noritsu Am. Corp., 818 F.2d 1219 (5th Cir. 1987) .................................................................................................33

Racing Guild of Ohio, Local 304 v. Ohio State Racing Comm’n, 28 Ohio St. 3d 317 (1986) .................................................................................................12, 13

Raudabaugh v. State 96 Ohio St. 513 (1917)...........................................................................................................8, 9

Reich v. Cont’l Cas. Co., 33 F.3d 754 (7th Cir. 1994) .........................................................................................18, 19, 20

S.S. Co. v. Joliffe, 69 U.S. (2 Wall.) 450 (1865) ...................................................................................................32

Santos v. Ohio Bureau of Workers’ Comp., 101 Ohio St. 3d 74, 2004-Ohio-28................................................................................... passim

Scot Lad Foods, Inc. v. Sec’y of State, 66 Ohio St. 2d 1 (1981)............................................................................................................11

Sereboff v. Mid A. Med. Servs., Inc., 547 U.S. 356 (2006) .................................................................................................................19

Sherman v. Korff, 91 N.W.2d 485 (Mich. 1958) ...................................................................................................34

State ex rel. Johnston v. Ohio Bur. of Workers’ Comp., 92 Ohio St. 3d 463 (2001) .......................................................................................................25

State ex rel. Liberty Mut. Ins. Co. v. Indus. Comm’n of Ohio, 18 Ohio St. 3d 290 (1985) .......................................................................................................26

State ex rel. Polaroid Corp. v. Denihan, 34 Ohio App. 3d 204 (10th Dist. 1986) ...............................................................................9, 10

State ex rel. Williams v. Glander, 148 Ohio St. 188 (1947).................................................................................................9, 29, 30

State ex rel. Wilson v. Preston, 173 Ohio St. 203 (1962)...........................................................................................................11

State v. Aalim, 150 Ohio St. 3d 489, 2017-Ohio-2956.....................................................................................27

State v. Franklin Bank of Columbus, 10 Ohio 91 (1840) ......................................................................................................................8

vii

Tannenbaum v. UNUM Life Ins. Co., No. 03-CV-1410, 2004 U.S. Dist. LEXIS 5664 (E.D. Pa. Feb. 27, 2004) ..............................22

Thornton v. Duffy, 99 Ohio St. 120 (1918).............................................................................................................11

United States v. Limbs, 524 F.2d 799 (9th Cir. 1975) ...................................................................................................33

US Airways, Inc. v. McCutchen, 133 S. Ct. 1537 (2013) .............................................................................................................18

Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247 (2011) ...........................................................................................................10, 23

W. Park Shopping Ctr., Inc. v. Masheter, 6 Ohio St. 2d 142 (1966) ...........................................................................................................9

Watkins v. Dep’t of Youth Servs., 143 Ohio St. 3d 477, 2015-Ohio-1776.....................................................................................27

Wilborn v. Bank One Corp., 121 Ohio St. 3d 546, 2009-Ohio-306.......................................................................................16

Wolf v. Ohio State Univ. Hosp., 170 Ohio St. 49 (1959).........................................................................................................8, 30

Statutes, Rules, and Constitutional Provisions

O.A.C. 4123-3-10 ............................................................................................................................3

O.A.C. 4123-3-10(D)(3) ..................................................................................................................3

Ohio Const., art. I, § 16 ........................................................................................................8, 26, 27

142 Ohio Laws (Part I) (1988) .......................................................................................................13

R.C. 1.49(D) ...................................................................................................................................25

R.C. 119.12(M) ..............................................................................................................................10

R.C. 1303.45 ..................................................................................................................................32

R.C. 2305.07 ..................................................................................................................................27

R.C. 2743.02(A)(1) ......................................................................................................11, 12, 25, 28

R.C. 2743.03(A)(1) ........................................................................................................................25

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R.C. 2743.03(A)(2) ......................................................................................................12, 13, 24, 25

R.C. 2743.16(A) .............................................................................................................................27

R.C. 4123.58 ..................................................................................................................................14

R.C. 4123.311 ..................................................................................................................................3

R.C. 4123.311(A)(2) ......................................................................................................................16

Other Authorities

Bd. of Governors of the Fed. Reserve Sys., Report to the Congress on Government-Administered General-Use Prepaid Cards (July 2012) .............................3, 5, 32

Candace S. Kovacic-Fleischer, et al., Equitable Remedies, Restitution, & Damages (8th ed. 2011) ...........................................................................................................18

Colleen P. Murphy, Misclassifying Monetary Restitution, 55 S.M.U. L. Rev. 1577 (2002) .................................................................................................................................19, 31

1 Dan B. Dobbs, Dobbs Law of Remedies (2d ed. 1993) ..............................................................20

1 George E. Palmer, The Law of Restitution (1978) ......................................................................33

J.B. Ames, The History of Assumpsit, 2 Harv. L. R. 53 (1888) .....................................................32

Lawrence P. Wilkins, Tort Claims Against the State: Comparative and Categorical Analyses of the Ohio Court of Claims Act and Interpretations of the Act in Tort Litigation Against the State, 28 Cleve. St. L. Rev. 129 (1979) .......................10

Louis Jaffe, Suits Against Governments & Officers: Sovereign Immunity, 77 Harv. L. Rev. 1 (1963) .......................................................................................................................28

Restatement (Third) of Agency (2006) ..........................................................................................34

Restatement (Third) of Restitution & Unjust Enrichment (2011) ...........................................18, 20

Ronald E. Schultz, Ohio Sovereign Immunity: Long Lives the King, 28 Ohio St. L. J. 75 (1967) ..................................................................................................9, 11

4 Spencer W. Symons, Pomeroy’s Equity Jurisprudence (5th ed. 1941) ......................................19

Thomas W. Kahle and Stephen R. Schmidt, Claims Against the State of Ohio: Sovereign Immunity, the Sundry Claims Board and the Proposed Court of Claims Act, 35 Ohio St. L. J. 462 (1974) ...............................................................................8, 9

Tyler Desmond and Charles Sprenger, Fed. Reserve Bank of Boston, Estimating the Cost of Being Unbanked, Communities & Banking (Spring 2007) .........................5, 16, 32

INTRODUCTION

The Ohio Bureau of Workers’ Compensation saved money for claimants and employers

alike when it began distributing benefits through electronic payments rather than paper checks.

The Bureau allowed claimants either (1) to set up a direct deposit into the claimant’s own

checking account, or (2) to accept, at no cost, a physical debit card (tied to a separate bank

account) that the claimant could use at merchants, at automated teller machines (ATMs), or in-

person at bank tellers. Many of the claimants’ transactions with the debit cards were free. But a

few debit-card transactions were not free, such as a request to convert the debit-card funds into a

foreign currency, a request to replace the debit card a third time (replacements one and two were

free), or a request for more than one in-person teller withdrawal in a month. Cirino v. Ohio Bur.

of Workers’ Comp., 2016-Ohio-8323 ¶ 12 n.3 (“App. Op.”). This appeal asks whether class-

action litigation about these allegedly “‘unreasonable’” fees, id. ¶ 35 (quoting trial court), should

proceed in the Court of Claims or in the Cuyahoga County Court of Common Pleas.

Michael Cirino receives workers’ compensation in the amount of $886 biweekly. Id.

¶ 18. Although he has a bank account, he chose to receive his payments on a debit card rather

than via direct deposit. Id. ¶ 23. Cirino entered into a contract with JP Morgan Chase governing

his use of that card. Id. ¶¶ 9, 13. Cirino opted to access the money associated with his debit card

in ways that incurred fees under his contract, even though he could have accessed the money for

free. Id. ¶ 25. Cirino challenged the legality of the fees that he voluntarily incurred and sued the

Bureau as the representative of a class. The Eighth District held that Cirino’s lawsuit could

proceed in common pleas court. That judgment is wrong for three reasons.

First, it conflicts with this Court’s holding in another workers’ compensation case. See

Measles v. Indus. Comm’n of Ohio, 128 Ohio St. 3d 458, 2011-Ohio-1523 ¶ 13. Measles held

that a similar lawsuit alleging that the Bureau breached a statutory duty, as informed by a

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contract for lump-sum advance payments, belonged in the Court of Claims. Cirino’s claim that

his Chase contract illegally charged him for accessing his money wears the same stripes as the

claim in Measles that the claimants’ agreement illegally reduced amounts that they received.

Second, Cirino’s claim belongs in the Court of Claims because it does not seek “equitable

relief.” This Court has three times distinguished equitable from legal restitution for claims

against the Bureau, Measles, 2011-Ohio-1523 ¶¶ 10-12, and held that only claims for equitable

restitution, at most, belong outside the Court of Claims, id. ¶ 9. Equitable restitution requires a

remedy against specific assets in an amount measured by the defendant’s gain. But Cirino seeks

recovery from the Bureau’s general assets (after all, the fees were paid to Chase) in an amount to

compensate him for his alleged loss. Cirino seeks relief at law, not in equity, and so his suit

belongs in the Court of Claims.

Third, Cirino must litigate his claim in the Court of Claims because the State never

consented to anything like his suit before its broad waiver of sovereign immunity in the 1975

Court of Claims Act. Only those suits to which the State consented before 1975 may be

maintained in the courts of common pleas today. And a suit against the State itself to recover

fees paid to a third party is not the kind of suit to which the State had ever consented.

At bottom, the place in which this suit is litigated matters a great deal because the

General Assembly has set conditions on its waivers of immunity in the Court of Claims that do

not apply in the common pleas courts. In the Court of Claims, the statute of limitations is

shorter. And in the Court of Claims, a suit against the State relieves state officers of liability for

the same claim. Respecting the separation of powers means that this Court must respect the

General Assembly’s choice to channel most suits to the Court of Claims.

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STATEMENT OF THE CASE AND FACTS

A. The Bureau of Workers’ Compensation changed the way it delivers benefits to save money for the program and workers.

Historically, the Bureau distributed benefits by mailing paper checks to claimants. In

1997, though, the Bureau tested an electronic payment system. Bureau’s Mot. to Dismiss, R. 12,

Ex. 1 (Morgan Aff.) ¶ 2 (Supp. S-56). As a result of that test, the General Assembly passed a

statute that authorized the Bureau to implement a mandatory electronic payments system. R.C.

4123.311. The statute empowered the Bureau to use “direct deposit” for all payments the Bureau

made to claimants, “[r]equire any payee” to designate a “financial institution and an account

number” for receiving such payments, and “contract” with financial institutions to provide debit

cards to claimants. Id.; see also O.A.C. 4123-3-10 (fleshing out the program). As implemented,

the Bureau gives claimants the option of either direct deposit into a bank account or payment

onto a Visa-branded debit card. The Bureau contracted with JP Morgan Chase to issue the debit

cards to those claimants who wanted them. R. 12, Ex. 1 at ¶ 4; id. Ex. 2 (Chase-Bureau

Agreement) (Supp. S-56; S-59—S-66). With this program, the Bureau joined many other public

entities that distribute benefits electronically rather than through paper checks. See generally Bd.

of Governors of the Fed. Reserve Sys., Report to the Congress on Government-Administered

General-Use Prepaid Cards (July 2012) (available at https://goo.gl/k3gG6D) (noting that

unemployment benefits, TANF, and child-support payments are distributed this way).

Under the program’s default method, the Bureau distributes benefits to claimants through

electronic payments (absent a hardship exemption that permits paper checks). See O.A.C. 4123-

3-10(A)(4), (D). When benefits are due, the Bureau notifies beneficiaries of the electronic

payment system and requests information required to initiate direct deposits. O.A.C. 4123-3-

10(D)(3). If beneficiaries do not have a bank account or do not wish to use direct deposit, they

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receive a debit card. Id. For beneficiaries who lack bank accounts, the payment cards offer a

way to avoid the “substantial” fees imposed to cash a paper check without an account. Id. Cirino

v. Ohio Bur. of Workers’ Comp., 2016-Ohio-8323 ¶ 5 (8th Dist.) (“App. Op.”) (App’x 2).

Electronic processing, both direct deposit and the debit cards, also reduces the Bureau’s

expenses. Id.

For those using debit cards, Chase agreed to create a separate account with a Visa debit

card for each claimant. R. 12, Ex. 2, at 1 (Supp. S-59). The Bureau agreed to transfer 100% of

benefit payments to Chase to be credited to the claimant’s Visa debit card account. R. 12, Ex. 1

at ¶¶ 5-6 (Supp. S-57). A card-holder agreement between Chase and each individual claimant

governed their relationship. Bureau’s Mot. for Summary Judg., R. 42, Ex. A (“2d Morgan Aff.”)

at ¶¶ 6-7 (Supp. S-152). Each claimant received a card-holder agreement, which contained a fee

schedule for various card transactions. Cirino Dep., R. 46, Ex. 8 (cardholder agreement) at 5; id.,

Ex. 9 (cardholder mailer) at 1 (Supp. S-309; S-310).

Under those agreements, claimants could do any of the following for free: withdraw

money from any Chase ATM nationwide, buy goods or services at any merchant that accepts

Visa cards, make one in-person teller withdrawal per month, request an extra debit card for a

family member, get two replacements per year for lost cards, and make telephone or Internet

balance inquiries. R. 12, Ex. 2 at 6 (Supp. S-64). Claimants, however, had to pay fees for

certain transactions, such as: making a second in-person teller withdrawal in a month ($5.00),

requesting a third replacement card within a year ($7.50), having no account activity for a year

(deposit, purchase, or withdrawal) ($1.50/month), converting funds to foreign currency (3%),

making a non-network ATM withdrawal ($1.50), or making a foreign ATM withdrawal ($3.00).

Id. Chase deducted these charges from claimants’ individual accounts, but it shared no part of

5

any fee with the Bureau. R. 42, Ex. A at ¶¶ 7-10; id., Ex. E (Valentino Aff.) at ¶ 10 (Supp. S-

152—153; S-216). As compared to paper checks, the Visa debit card allowed workers’

compensation claimants to buy goods and services without any banking or other fees. R. 46, Ex.

2 (Notice of Program mailing to Cirino) at 1, 4 (Supp. S-291, S-294). The cards also eliminated

the risks of lost or stolen checks, and they guaranteed access to funds 24/7. Id. Ex. 6 at 3 (Supp.

S-301). Most notably, the debit card (or the electronic deposit) let claimants avoid the old

payment system’s potentially significant check-cashing fees, which may cost as much as $20 per

check. Tyler Desmond and Charles Sprenger, Fed. Reserve Bank of Boston, Estimating the Cost

of Being Unbanked, Communities & Banking 24, 25 (Spring 2007) (estimating check cashing

fees at $14-$20 per check) (available at https://goo.gl/C61r83); cf. Report to Congress at 5

(noting that most fees for a teller transaction rage from $1 to $15).

B. Cirino brought a class action challenging the Chase fees.

Michael Cirino is a workers’ compensation beneficiary. In 2009, Cirino was granted

temporary total disability compensation of $886 biweekly. R. 46 at 33 (Supp. S-257). His first

two payments came in the form of checks, which he deposited into his personal checking account

at PNC Bank. Id. at 38-39 (Supp. S-258). In August 2009, Cirino received notice that he would

soon receive payments on a Visa debit card. Id. at 46 & Ex. 2 (Supp. S-260; S-291). The notice

informed him that he could elect direct deposit if he did not want a debit card. Id. at 55 (Supp. S-

262). Cirino refused direct deposits, explaining that he was “not about to hand out my bank

account to anybody.” Id. Cirino therefore received a Visa debit card from Chase. Id. at 66

(Supp. S-265). He used the debit card immediately and withdrew $886 from a teller at a Chase

branch, and was charged no fee for doing so. Id. at 70 (Supp. S-266).

When Cirino withdrew his next biweekly payment, again using a Chase teller, he was

assessed the $5 fee. Id. at 70-71 & Ex. 11 (Supp. S-266; S-319). After a few inquiries, Cirino’s

6

attorney told him that he could execute only one free in-person teller withdrawal each month.

App. Op. ¶ 25. Although Chase refunded the $5 fee as a one-time courtesy, R. 46, Ex. 11

(account record) at 3 (Supp. S-320), Cirino continued to make withdrawals that incurred this $5

fee over the next several months. Id. Ex. 11 at 4-14 (S-320—S-331). At the bank where he

“typically” made these withdrawals, he would have walked right past an ATM where he could

have withdrawn his money for free. He did so merely because he wanted to use the “teller inside

the bank” rather than the ATM. Id. at 140-41 (Supp. S-283-84).

In 2010, Cirino brought a class-action suit against the Bureau challenging all of the fees

Chase charged for the program, not only the fees that he had paid for repeated in-person teller

transactions. The fees, the class alleged, “damaged” claimants in the “amount[] wrongfully

withheld” by the Bureau. Compl., R.1 ¶ 13 (Supp. S-5). As relief, the complaint sought

“restitution/unjust enrichment/equitable disgorgement” along with attorney fees, litigation

expenses, and court costs. Id. ¶¶ 30-31& Prayer (Supp. S-9, S-11).

The common pleas court made three key rulings. First, it rejected the Bureau’s motion to

dismiss for lack of subject-matter jurisdiction. The common pleas court reasoned that, although

the fees were earned and retained by Chase, Chase acted as the Bureau’s agent. Cirino v. Ohio

Bureau of Workers’ Comp., No. CV-727380 at 5 (March 12, 2012) (App’x 3). Therefore, the

court concluded, Cirino’s claim was equitable, and could be brought in a court common pleas

court instead of the Court of Claims. Id. at 5-6.

As to class certification, the court certified the following class under both Rule 23(B)(2)

and (B)(3): “‘All current and former participants in the Ohio Workers’ Compensation system

who were assessed unreasonable fees under authority of the Chase Direct Payment Card

Program—Agency Service Agreement.’” Id. ¶ 35 (quoting order) (see App’x 4).

7

Finally, the common pleas court granted Cirino’s summary-judgment motion, declaring

that the Bureau had violated both “state constitutional policy” and two workers’ compensation

statutes. Cirino v. Ohio Bureau of Workers’ Comp., No. CV-727380, at 8, 9-15 (Jan. 13, 2016)

(App’x 5). The court deferred to a later hearing decisions about the exact amount due each class

member. Id. at 18. The Bureau appealed each of these rulings. The Eighth District affirmed.

As to subject-matter jurisdiction, the appeals court reasoned that Santos v. Ohio Bureau

of Workers’ Comp., 101 Ohio St. 3d 74, 2004-Ohio-28, and similar cases required it to focus on

whether the Bureau had “wrongfully collected” funds from Cirino. App. Op. ¶ 53. Although

Chase, not the Bureau, collected the fees, the court concluded that Chase acted as the Bureau’s

“agent” such that the claim sought “equitable restitution” from the Bureau. Id. ¶¶ 58-59. The

court reasoned that, although Cirino sought “monetary relief,” his requested relief was not a

“‘substitute’” for losses he suffered as a result of the electronic-payment program, but rather a

return of “specific funds he claims were wrongfully withheld from his benefit payments.” Id.

¶ 60 (citation omitted).

The appeals court also addressed the class-action and summary-judgment rulings,

although those rulings are not before this Court. See 2017-Ohio-7843 (accepting jurisdiction

only over subject-matter jurisdiction proposition). On the class-certification question, the Eighth

District reasoned that the class presented common questions because Cirino’s claim that Chase

charged “‘unreasonable’” fees “limited” the class to only those whose costs exceeded any benefit

from the electronic-payment system. Id. ¶ 111-14 (citation omitted). As to summary judgment,

the Eighth District held that it had no jurisdiction over the ruling in favor of the class because

that ruling did not decide how much money was owed to which claimants. Id. ¶ 122-23.

8

ARGUMENT

Appellant Bureau’s Proposition of Law:

Only a suit to recover specific funds held by a State defendant, or suits over which the State consented to be sued before the effective date of the Court of Claims Act, are proper in the common pleas court. All other suits against the State must be filed in the Court of Claims.

A. Most claims against the State must be litigated in the Court of Claims.

The Court of Claims Act broadly waives the State’s immunity, but confines that waiver

to actions in the Court of Claims.

1. Before 1975, the State was immune from most lawsuits.

Before the Court of Claims Act, the State had immunity from almost all suits. As the

Court said in 1917, “[a] state is not subject to suit in its own courts without its express consent.”

Raudabaugh v. State 96 Ohio St. 513 syll. ¶ 1 (1917); see also Krause v. State, 31 Ohio St. 2d

132 (1972); Wolf v. Ohio State Univ. Hosp., 170 Ohio St. 49 (1959). That core attribute of

sovereignty dates back to statehood, see, e.g., Miers v. Zanesville and Maysville Turnpike Co., 11

Ohio 273 (1842); State v. Franklin Bank of Columbus, 10 Ohio 91 (1840); Thomas W. Kahle and

Stephen R. Schmidt, Claims Against the State of Ohio: Sovereign Immunity, the Sundry Claims

Board and the Proposed Court of Claims Act, 35 Ohio St. L. J. 462, 467 (1974) (immunity was a

“settled principle” before 1912, and probably dated to the “creation of the Northwest

Territories”). In 1912, the people gave sovereign immunity explicit recognition through a

constitutional amendment. A new sentence added to part of the original Constitution reads:

“Suits may be brought against the state, in such courts and in such manner, as may be provided

by law.” Ohio Const., art. I, § 16 (emphasis added).

This 1912 constitutional language, the Court has held, is not “self-executing[,]” because

“[c]onsent by the General Assembly [must] be manifested by the enactment of a statute or

9

statutes providing in what courts and in what manner suits may be brought against the state.”

Krause, 31 Ohio St. 2d at 142; see id. syll. ¶ 3; Raudabaugh, 96 Ohio St. 513 syll. ¶ 2. Before

1975, such consent existed in only “limited areas.” Kahle and Schmidt, Claims Against the State

of Ohio, 35 Ohio St. L. J. at 486 n.117 (listing such statutes); Ronald E. Schultz, Ohio Sovereign

Immunity: Long Lives the King, 28 Ohio St. L. J. 75, 85 n.76 (1967) (same).

Because statutes waiving the State’s immunity were few and far between before 1975, the

Court many times declared that the State was not amenable to various lawsuits. The Court held,

for example, that the State was immune from a suit to direct the Industrial Commission to

garnish the wages of one of its employees. Palumbo v. Indus. Comm’n, 140 Ohio St. 54 (1942).

Nor was the State amenable to an equitable suit to quiet title. W. Park Shopping Ctr., Inc. v.

Masheter, 6 Ohio St. 2d 142 (1966); see Porter v. Robb, 7 Ohio 206 (1835) (quiet-title actions

contemplate equitable relief). The State’s immunity before 1975 thus swept widely.

Beyond a few statutes waiving the State’s immunity, the doctrine shielding the State from

suit did not apply if a litigant sued a state officer, provided the suit was not a disguised suit

against the State itself. Suits against state officers were permitted unless the suit against the

officer was only “‘nominal[]’” because any judgment would “‘operate to control the action of the

state or subject it to liability.’” State ex rel. Williams v. Glander, 148 Ohio St. 188, 193 (1947)

(citation omitted); see also Green v. State Civil Serv. Comm’n, 90 Ohio St. 252, 255 (1914)

(permitting suit). The idea behind these officer suits was that “the state’s interests are advanced

by the person bringing the action rather than the state official.” State ex rel. Polaroid Corp. v.

Denihan, 34 Ohio App. 3d 204, 211 (10th Dist. 1986). That is, there was “no reason to bring the

action against the state itself since the state officer, by attempting to perform an illegal act, [was]

acting contrary to the state’s interests.” Id. Before 1975, therefore, the general rule was that

10

“[o]nly when the real party in interest [was] the state itself, rather than the state officer, [was] an

action brought against a state officer, whether in injunction or declaratory judgment, deemed to

be an action against the state and, thus, required to be brought in the Court of Claims.” Id.

A similar rule weaves through the law of state immunity in federal court. “[S]overeign

immunity does not apply” to certain suits against an officer “because an official who acts

unconstitutionally is ‘stripped of his official or representative character.’” Pennhurst State Sch.

& Hosp. v. Halderman, 465 U.S. 89, 104 (1984). Suits in federal court pay careful attention to

whether the suit is against an officer or the State. See, e.g., Va. Office for Prot. & Advocacy v.

Stewart, 563 U.S. 247, 261 (2011) (suit against state officer in official capacity to restrain

ongoing violation of federal law); Kentucky v. Graham, 473 U.S. 159, 168 (1985) (error to award

fees against State because suit was against officer).

Thus, before 1975, suits challenging state action generally followed one of two tracks.

On the first track, if a statute specifically authorized a suit, it could be maintained against the

State or a state agency. On the second track, some suits against a state officer could be

maintained because a suit against an officer is not automatically a suit against the State.

As an example of track one, the Court decided that the Declaratory Judgment Act

authorized a suit against a state agency to test the “validity” of an agency regulation. Burger

Brewing Co. v. Liquor Control Comm’n, Dep’t of Liquor Control, 34 Ohio St. 2d 93 (1973).

Chapter 119 provides another example of a pre-1975 waiver. That section authorizes judicial

review of state-agency action in common pleas courts and empowers those courts to “vacate” or

“modify” agency decisions. R.C. 119.12(M); see Lawrence P. Wilkins, Tort Claims Against the

State: Comparative and Categorical Analyses of the Ohio Court of Claims Act and

Interpretations of the Act in Tort Litigation Against the State, 28 Cleve. St. L. Rev. 129, 181

11

(1979) (noting lower court holdings that administrative appeals are prior-consent-to-suit

statutes); cf. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209,

215 (2012) (federal Administrative Procedure Act “generally waives the Federal Government’s

immunity”).

As to track two, the Court entertained a suit against members of the Industrial

Commission to test the constitutionality of certain statutes. Thornton v. Duffy, 99 Ohio St. 120

(1918). The Court also permitted a mandamus suit against the Director of Highways to

compensate a landowner. State ex rel. Wilson v. Preston, 173 Ohio St. 203 (1962); see Schultz,

Ohio Sovereign Immunity, 28 Ohio St. L. J. at 83 (mandamus suits not “regarded” as suits against

the State); see also Scot Lad Foods, Inc. v. Sec’y of State, 66 Ohio St. 2d 1, 12 (1981) (Court of

Claims Act did not initially “change the general law” regarding suits against officers).

Outside of specific statutory authority to sue the State, or lawsuits that were not against

the State (because brought against an officer), the State was generally immune from suit.

2. In 1975, the State broadly waived its immunity, but only for suits in the Court of Claims.

The Court of Claims Act broadly waived the State’s sovereign immunity from “liability”

and gave “consent to be sued” under the “same rules of law” that apply to private parties. R.C.

2743.02(A)(1). The Act confined that waiver of sovereign immunity, however, to suits “in the

court of claims,” and subjected those claims to various additional “limitations.” Id. By doing so,

the Act did “not create a new right of action against the state.” McCord v. Ohio Div. of Parks &

Recreation, 54 Ohio St. 2d 72, 74 (1978). It instead only waived immunity for those suits that

“were barred by the doctrine of sovereign immunity” before 1975. Ashland Cty. Bd. of Comm’rs

v. Ohio Dep’t of Tax., 63 Ohio St. 3d 648, 651 (1992).

12

Critically, this broad new waiver did not affect any pre-1975 claims in which the State

could already be sued in the courts of common pleas. The Act expressly noted: “To the extent

that the state has previously consented to be sued, this chapter has no applicability.” R.C.

2743.02(A)(1) (emphasis added). Thus, while “[t]he Court of Claims was created to become the

sole trial-level adjudicator of claims against the state,” the Act retained “the narrow exception”

that “specific types of suits that the state subjected itself [to] before 1975 could be tried

elsewhere as if the defendant was a private party.” Friedman v. Johnson, 18 Ohio St. 3d 85, 87

(1985). As this Court later explained, for “any actions . . . permitted against state commissions,

boards or agencies in a court of common pleas prior to the enactment [of the Court of Claims

Act], those actions may be maintained against the state in a court of common pleas subsequent

to” its enactment. Racing Guild of Ohio, Local 304 v. Ohio State Racing Comm’n, 28 Ohio St.

3d 317, 319-20 (1986). Indeed, these actions originally had to be maintained in the court of

common pleas because the Court of Claims Act had “no applicability” to them. R.C.

2743.02(A)(1).

In 1988, the General Assembly partially departed from this framework by further

expanding the Court of Claims’ jurisdiction. Those amendments required the Court of Claims to

assert mandatory supplemental jurisdiction over claims that otherwise would have been brought

in the common pleas courts under the pre-1975 waivers, but only if the plaintiff also asserted a

claim that fell within the Court of Claims’ exclusive jurisdiction. R.C. 2743.03(A)(2). This

supplemental-jurisdiction amendment reiterates, however, that it “does not affect, and shall not

be construed as affecting, the original jurisdiction of another court of this state to hear and

determine a civil action in which the sole relief that the claimant seeks against the state is a

declaratory judgment, injunctive relief, or other equitable relief.” Id. (emphasis added). This

13

language ensured that standalone claims that could have been brought outside the Court of

Claims before 1975—which were largely characterized as claims for “a declaratory judgment,

injunctive relief, or other equitable relief”—still could be brought in those courts. In other

words, R.C. 2743.03(A)(2) did not create new jurisdiction for suits against the State outside the

Court of Claims; it preserved the jurisdiction that had existed outside the Court of Claims before

1975 for some of those claims. The General Assembly itself made clear that these 1988

amendments to the Court of Claims Act “confirm[ed]” the dichotomy that this Court recognized

in Racing Guild between pre-1975 claims (allowed in the court of common pleas) and post-1975

claims (allowed in the Court of Claims). See 142 Ohio Laws (Part I) 1301, 1304 (1988).

In sum, the Court of Claims Act did not change the preexisting law governing suits

against the State that was in place before 1975. Suits for declaratory judgments, injunctions, or

other equitable relief that were permitted before 1975 in the common pleas courts are still

permitted there today. But that is because the Act preserved rather than altered the status quo in

those courts. It should not be read as expanding what plaintiffs can bring there. As this Court

has said, the Court of Claims Act did not “in any way give consent for the state to be sued in any

forum other than the Court of Claims.” Boggs v. State, 8 Ohio St. 3d 15, 17 (1983).

B. Cirino’s suit belongs in the Court of Claims because this Court’s most recent precedent is directly on point, because his suit qualifies as legal rather than equitable restitution, and because the State had never consented to suit for anything resembling his claim before 1975.

Under this statutory scheme, the Court should find jurisdiction in the court of common

pleas lacking for three reasons: (1) this Court’s most on-point precedent requires that result;

(2) its more general holdings distinguishing legal and equitable restitution also support it; and

(3) the result follows from the principle that a suit in the common pleas court must be the kind of

suit to which the State previously consented before 1975.

14

1. Cirino’s lawsuit belongs in the Court of Claims because his allegations implicate his contract with Chase.

As the narrowest way to resolve this appeal, the Court need only apply its latest precedent

about Court of Claims jurisdiction over a suit seeking money from the Bureau. Measles v. Indus.

Comm’n of Ohio, 128 Ohio St. 3d 458, 2011-Ohio-1523. This case is like Measles in all of the

ways that matter. That case, like this one, involved a claim that workers’ compensation

claimants should receive more benefits based on an intersection of a statute and a contract.

Measles involved a group of claimants who were entitled to lifetime workers’

compensation benefits. They agreed to receive some of those benefits in a lump sum rather than

in weekly payments. Id. ¶ 4. The claimants’ choice to take a partial lump sum—they agreed in

their contracts—would permanently reduce the amount of their weekly benefits. Id. Later, the

claimants alleged that these weekly-payment reductions “should have stopped” when the

accumulated value of the reductions equaled the value of the lump sum that they received earlier.

Id. ¶ 5. Not only that, they claimed that the Bureau’s failure to stop the reductions violated R.C.

4123.58. Id. ¶ 12. The claimants filed a complaint in the court of common pleas “styled as a

‘Complaint for Equitable Relief Only,’” and they “asked for declaratory relief, injunctive relief,

and disgorgement from the commission and [Bureau] relating to benefits received after the lump-

sum advancement.” Id. ¶ 5. Because they asserted equitable relief, the claimants believed that

they could pursue their lawsuit in a court of common pleas. Id. ¶ 10.

This Court disagreed. The claimants’ claim for money against the State, it held, sought

restitution as a “remedy at law,” and therefore had to “proceed under the exclusive jurisdiction of

the Court of Claims.” Id. ¶ 2. That holding followed, the Court explained, even though the

claimants tried “to steer” the analysis to whether the Bureau had “violate[d]” a statute. Id. ¶ 12.

While they effectively asserted that their contracts were illegal, the Court concluded that it was

15

“impossible to judge whether [the Bureau] unlawfully deprived [the claimants] of statutorily

guaranteed benefits without evaluating the contract they executed that defines those benefits.”

Id. That made it sufficiently a contract dispute to trigger the Court of Claims jurisdiction. Id.

The same logic applies here. The core of Cirino’s claim is that he has “not received the

full claims payments [he is] entitled to be paid.” R. 1 ¶ 29 (Supp. S-9). As in Measles, the

reason he has received less than he believes he is due is his contract with Chase that defines how

he can access his benefits for free, and how he can access them in ways that incur a fee. True,

Cirino points to statutes directing that the Bureau pay the “‘administrative costs’” of the system

and instructing it to pay benefits “‘only to the employees or their dependents.’” Id. (quoting

statutes). But the Measles plaintiffs also pointed to a statute that they claimed the contracts

violated. Measles, 2011-Ohio-1523 ¶ 12. Just as in Measles, therefore, “it is impossible to judge

whether [the Bureau] unlawfully deprived [Cirino] of statutorily guaranteed benefits without

evaluating the contract” that he entered with Chase. Id.

Cirino had the “choice” to receive benefits through direct deposit or a debit card. App.

Op. ¶ 17. And, “[d]espite [the] knowledge” that he could have “avoided all fees” by accessing

his benefits in other ways, he chose to access them in a way that incurred nominal fees. Id. ¶ 25.

Cirino’s choices to incur the withdrawal fee when he had multiple options to access his benefits

for free “define[d] [his] benefits” in a way that those who opted to access their benefits in other

ways did not. Measles, 2011-Ohio-1523 ¶ 12. Cirino bound himself to the terms of the Chase

debit-card program when he declined direct deposit and activated a Visa debit card. App. Op.

¶ 13 (recounting testimony that by activating debit card claimants agreed to the “‘terms and

conditions’” of the card) (citation omitted)). The Chase contract is integral to Cirino’s claims.

16

That Cirino asserts, in essence, a contract claim is further illustrated by the statute giving

the Bureau the option to “[r]equire” Cirino to provide “written authorization” for a direct deposit.

R.C. 4123.311(A)(2). In other words, the Bureau structured its electronic-benefits program with

more options for claimants that the statute requires. The fees Cirino paid, therefore, resulted

from choices he made under a program that the Bureau had no obligation to make as generous as

it did. Cirino’s claims simply cannot be untangled from the contract that set the fees attached to

the choices he made.

In addition, the Eighth District’s analysis of class certification confirms that the claim

here is intertwined with the Chase contracts that each claimant entered. In affirming class

certification, the Eighth District placed great weight on the trial court’s reformulation of the class

to include only those claimants charged “‘unreasonable fees.’” App. Op. ¶ 114 (citation

omitted). That is, the class members who might ultimately recover if this case is successful on

the merits are only those whose fees “exceeded” any “‘benefits’” received from having a debit

card instead of a paper check. Id. Since check-cashing fees range as high as $20, Unbanked, at

25, and the debit card could be used everywhere a Visa is accepted, see R. 12, Ex. 2 at 5-6 (Supp.

S-63—64), the benefits were many. But the key for the present appeal is that whether a class

member benefitted or not requires comparing that claimant’s banking history with the terms of

the Chase contract. Just like Measles, “evaluating the contract,” 2011-Ohio-1523 ¶ 12, is key to

resolving the merits.

Ultimately, this suit seeks compensation for the “damage[],” R. 1 ¶ 13 (Supp. S-5), linked

to an allegedly illegal contract term that limited the ways Cirino could receive benefits without

cost. Like the plaintiff in Measles, Cirino “demands his payment be reinstated to the amount

required by the statute.” App’ee Br. in No. 2010-393 at 13 (Sept. 2, 2010); cf. Wilborn v. Bank

17

One Corp., 121 Ohio St. 3d 546, 2009-Ohio-306 ¶ 4 (suit to recover money paid under allegedly

illegal attorney-fee provision). Measles thus compels jurisdiction in the Court of Claims.

2. Cirino’s lawsuit belongs in the Court of Claims because he seeks legal—not equitable—restitution.

Even if Cirino’s suit does not fit within the Measles holding that restitution claims bound

up with contracts must be litigated in the Court of Claims, his suit still cannot proceed in a

common pleas court because it does not seek “equitable restitution.” That is, if the precise rule

of Measles does not resolve this appeal, the broader principle that has been this Court’s focus in

recent cases compels a reversal. That broader principle shows that Cirino’s claim does not fit the

mold of “equitable restitution.” See Santos v. Ohio Bureau of Workers’ Comp., 101 Ohio St. 3d

74, 2004-Ohio-28 ¶¶ 11-14 (distinguishing legal and equitable restitution).

a. The court of common pleas have jurisdiction over—at most—claims against the State that seek only “equitable relief.”

This is the fourth case since 2004 that has involved whether a suit against the Bureau

belongs in the Court of Claims or a common pleas court. As in those previous cases, this case

can be resolved by deciding whether the suit seeks legal or equitable restitution because legal

restitution is not “equitable relief.” See Santos, 2004-Ohio-28 ¶ 13 (suit sought equitable, not

legal, restitution); Cristino v. Ohio Bureau of Workers’ Comp., 118 Ohio St. 3d 151, 2008-Ohio-

2013 ¶¶ 13-15 (applying Santos, but holding that the suit belonged in the Court of Claims);

Measles, 2011-Ohio-1523 ¶¶ 10-13 (same). Applying the test from Cristino’s first paragraph

shows that Cirino’s case belongs in the Court of Claims: “a civil claim against the state that

requests only equitable relief [such as equitable restitution] may be heard in the court of common

pleas, whereas all other civil claims against the state fall within the exclusive, original

jurisdiction of the Court of Claims.” Id. ¶ 1.

18

Whether the relief is equitable restitution instead of legal restitution depends on the wider

distinction between equity and law and ultimately turns on two questions: (1) does the suit seek

specific funds in the defendant’s possession (equitable) or damages to be paid from the

defendant’s general assets (legal), and (2) does the suit seek the amount the defendant gained

(equitable) or the amount the plaintiff lost (legal).

Generally, to determine if a suit seeks equitable relief, a court must ask whether it

resembles a suit that would have been litigated in an equity court and that sought equitable

remedies. “[A] correct understanding of both historical and current practice” teaches that

“restitution is a legal remedy when ordered in a case at law and an equitable remedy . . . when

ordered in an equity case” Reich v. Cont’l Cas. Co., 33 F.3d 754, 756 (7th Cir. 1994); US

Airways, Inc. v. McCutchen, 133 S. Ct. 1537 (2013) (concluding claim was equitable because it

sought equitable remedies). “[L]egal remedies—even legal remedies that a court of equity could

sometimes award—are not ‘equitable relief.’” Montanile v. Bd. of Trs. of Nat’l Elevator Indus.

Health Benefit Plan, 136 S. Ct. 651, 661 (2016).

Restitution straddles law and equity. As this Court recognized, “restitution has been

available both in equity and in law.” Santos, 2004-Ohio-28 ¶ 11; see also Great-West Life &

Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213 (2002) (noting that restitution can be legal or

equitable); Candace S. Kovacic-Fleischer, et al., Equitable Remedies, Restitution & Damages

548 (8th ed. 2011) (“Restitution is not limited to equity.”). So, while “[r]estitution may be legal

or equitable or both,” Restatement (Third) of Restitution & Unjust Enrichment § 4 (2011), it is

“presumptively legal” if “accomplished exclusively by a judgment for money, without resort to

any of the ancillary remedial devices traditionally available in equity but not at law.” Id. § 4

cmt. d.

19

Admittedly, the distinction between legal and equitable restitution can be quite fine. For

example, “[i]f the beneficiary of a trust sought an accounting of the profits of a defalcating

trustee—a form of restitutionary relief—the accounting if ordered would be ordered in a suit in

equity, and the remedy thus would be equitable, while a suit seeking the identical relief against a

nonfiduciary would normally be a suit at law and the relief sought therefore legal.” Reich, 33

F.3d at 756. Or, as one survey of the question notes, the “key” to determining if restitution is

legal or equitable may turn on something as specific as whether the defendant has “exchange[d]

. . . the plaintiff’s money for something else.” Colleen P. Murphy, Misclassifying Monetary

Restitution, 55 S.M.U. L. Rev. 1577, 1604-05 (2002). Given this sometimes fine line between

legal and equitable restitution, the Court should exercise caution before holding that a suit can

proceed outside the court that the General Assembly has designated for claims against the State.

Two key metrics generally divide legal from equitable restitution—whether the defendant

still possesses the funds that are at issue and whether the amount of restitution is measured by the

plaintiff’s loss or the defendant’s gain. A suit that seeks general compensation as measured by

the plaintiff’s loss belongs in the Court of Claims. A suit that seeks specific funds as measured

by the defendant’s gain may belong in a common pleas court.

Specific funds v. General funds. Equitable restitution is available only for “‘specifically

identifiable’” funds “‘within the possession and control’” of the defendant. Sereboff v. Mid A.

Med. Servs., Inc., 547 U.S. 356, 362–63 (2006) (citation omitted); see also 4 Spencer W.

Symons, Pomeroy’s Equity Jurisprudence §1234 (5th ed. 1941) (equitable remedies are generally

“directed against some specific thing; they give or enforce a right to or over some particular

thing”). Restitution is legal—not equitable—when the specific funds to which the plaintiff

“claim[s] an entitlement . . . [are] not in [the defendants’] possession.” Montanile, 136 S. Ct. at

20

657. Put another way, relief “cannot be considered equitable” if the relevant funds have been

“dissipated” and are no longer “in the possession of [d]efendant.” Afridi v. Nat’l City Bank, 509

F.Supp.2d 655, 661 (N.D. Ohio 2007).

The Restatement of Restitution singles out as the “hallmark” of equitable remedies in

restitution that “they give relief to the claimant via rights in identifiable assets.” Restatement of

Restitution § 4 cmt. d; see also id. cmt. d, illus. 3 (relief that “consists solely of a judgment

enforceable against . . . general assets . . . may properly be characterized as legal.”); cf. Am. Life

& Accident Ins. Co. v. Jones, 152 Ohio St. 287, 298 (1949) (noting that specific funds were “not

in any general state fund”). If a defendant has spent the disputed funds, and they are not

traceable, any equitable lien is “destroy[ed].” Montanile, 136 S. Ct. at 658. Consistent with

these authorities, this Court held in Santos that a suit could be litigated in common pleas court

because it sought the “return of specific funds.” 2004-Ohio-28 ¶ 17 (emphasis added).

Plaintiff’s gain v. Defendant’s loss. Restitution involves a “[d]efendant’s gains, not [a]

plaintiff’s losses.” 1 Dan B. Dobbs, Dobbs Law of Remedies § 4.1(1) (2d ed. 1993); Reich, 33

F.3d at 755 (“restitution as normally understood in civil cases seeks to deprive the defendant of

money or any other thing of value that he gained from tortious or otherwise wrongful activity”).

As one federal court detailed, a “restitutionary award focuses on the defendant’s wrongfully

obtained gain while a compensatory award focuses on the plaintiff’s loss at the defendant's

hands. Restitution seeks to punish the wrongdoer by taking his ill-gotten gains, thus, removing

his incentive to perform the wrongful act again. Compensatory damages on the other hand focus

on the plaintiff's losses and seek to recover in money the value of the harm done to him.” Kerr v.

Charles F. Vatterott & Co., 184 F.3d 938, 944 (8th Cir. 1999) cf. City of Monterey v. Del Monte

Dunes, 526 U.S. 687, 710 (1999) (legal relief is distinct from “equitable restitution and other

21

monetary remedies available in equity” because, for legal relief, “‘the question is what has the

owner lost, not what has the taker gained’” (citation omitted)). As with the question whether the

defendant still possesses the funds, this Court’s cases line up with prevailing authority. For

example, in Ohio Academy, the nursing homes sought exactly what the State gained—funds

retained by allegedly underpaying reimbursements. Ohio Acad. of Nursing Homes v. Ohio Dep’t

of Job & Family Servs., 114 Ohio St. 3d 14, 2007-Ohio-2620 ¶¶ 3-4. Similarly in Santos, the

plaintiffs sought the funds the Bureau collected through subrogation, which would be dollar-for-

dollar gains to the Bureau. Id. 2004-Ohio-28 ¶¶ 4-7; see Ohio Bureau of Workers’ Comp. v.

McKinley, 130 Ohio St. 3d 156, 2011-Ohio-4432 ¶ 45 (Pfeifer, J., concurring) (Bureau’s rights

as subrogee “limited” to rights of claimant).

b. Under these principles, Cirino seeks legal restitution because he seeks funds that are not in the State’s possession and not tied to its gain.

Cirino’s claim belongs in the Court of Claims because he seeks money from the Bureau’s

general assets (to compensate for money Chase collected) as measured by what Cirino allegedly

lost by making these payments.

No specific funds. Cirino does not seek “specific funds” in the hands of the Bureau.

Santos, 2004-Ohio-28 ¶ 16. He and the class seek to be made whole for expenses they bore

based on their choices about accessing their workers’ compensation benefits. And they seek

money that is in the hands of the bank that facilitated those transactions. That sort of claim seeks

legal relief, not equitable relief.

Two federal cases show why. In one, the plaintiff, a member of a benefit plan, sought

“disgorgement” of “hidden fees” that the benefit plan had paid to an insurance company,

allegedly in breach of the plan’s fiduciary responsibility to its members. Cox v. Blue Cross Blue

Shield of Mich., 166 F. Supp. 3d 891, 897 (E.D. Mich. 2015). The court granted a motion to

22

dismiss because that relief was “indistinguishable from a money judgment” no “matter what

label” the plaintiff used. Id. at 896, 897. The plaintiff had not sought specific funds held by the

insurance company.

In a second case, a plaintiff claimed that a defendant “wrongfully failed to pay him the

benefits he was due.” Tannenbaum v. UNUM Life Ins. Co., No. 03-CV-1410, 2004 U.S. Dist.

LEXIS 5664, at *19-20 (E.D. Pa. Feb. 27, 2004); see also Great-West, 534 U.S. at 210 (“A claim

for money due and owing under a contract is ‘quintessentially an action at law.’” (citation

omitted)). Again, the court granted a motion to dismiss the restitution claim because the request

for unpaid benefits amounted to a “legal remedy.” Tannenbaum, 2004 U.S. Dist. LEXIS 5664,

at *19, 32.

Cirino’s claim fits the mold of these cases. It contests certain fees paid to a third party

that—he alleges—illegally reduced the benefits that should have been paid to him. Cirino’s

requested relief “has no connection to any particular fund at all.” Cent. States, Se. & Sw. Areas

Health & Welfare Fund v. First Agency, Inc., 756 F.3d 954, 960 (6th Cir. 2014) (Sutton, J.).

“That means [Cirino] [seeks] legal rather than equitable restitution.” Id. If equity suits fail

where a defendant had and spent the disputed funds, Montanile, 136 S. Ct. at 659, how can a suit

(like this one) succeed when a third party gained the disputed funds from the plaintiff?

Measured by Plaintiff’s loss. Cirino’s claim fails the test of equitable restitution for

another reason—it is measured by his loss, rather than the Bureau’s gain. Cirino seeks a money

judgment “in the amount[]” not paid to him. R.1 ¶ 13(Supp. S-5); id. ¶ 32 (Supp. S-9) (class

members should receive “100% of their awarded” payments). That is, he seeks what he lost, not

what the Bureau gained. Courts routinely treat requests for payments of this sort as legal, not

equitable, relief because they are “measured by Plaintiffs’ loss[es].” Halbach v. Great-West Life

23

& Annuity Ins. Co., 561 F.3d 872, 883 (8th Cir. 2009) (claim for “past-due benefits” sought legal

restitution); Helfrich v. PNC Bank, Ky., 267 F.3d 477, 483 (6th Cir. 2001) (although plaintiff

“denominated his requested relief as ‘restitution,’” he measured it “with reference to his losses

rather than [defendant’s] gains”) (reversing with instructions to dismiss); cf. Commodities

Futures Trading Comm’n v. Levy, 541 F.3d 1102, 1113 (11th Cir. 2008) (vacating award and

remanding to determine how much was attributable to defendant’s gain).

Cirino and the class seek what they have allegedly lost—benefit payments without being

charged for certain forms of access—not what the Bureau gained. Indeed, the Bureau gained

nothing from the transactions challenged here. Whether a claimant accessed benefits through

free transactions or paid Chase Bank a fee for certain transactions made no difference to the

Bureau. It paid every claimant the full award he or she was due.

A final point: Consider the U.S. Supreme Court’s statements cautioning against too

quickly classifying a suit against a State as equitable restitution. In a landmark case about

sovereign immunity, the Court considered whether a State was immune from a judgment that

ordered “state officials to ‘release and remit . . . benefits wrongfully withheld.’” Edelman v.

Jordan, 415 U.S. 651, 656 (1974). The Court held that, even though a lower court had described

that relief as “‘equitable restitution,’” the award was “indistinguishable . . . from an award of

damages against the State,” as it would have been “paid from state funds, and not from the

pockets of the individual state officials” and was “measured in terms of a monetary loss resulting

from a past breach of a legal duty.” Id. at 668; Stewart, 563 U.S. at 262 (Kennedy, J.,

concurring) (describing holding in Edelman as resting on the view that “equitable restitution”

was “too similar to an award of damages against the State” to avoid sovereign immunity). In

24

other words, even equitable restitution that too closely approximates damages is unavailable

against the State.

3. More generally, Cirino’s suit cannot proceed in the common pleas court because the State never consented to suits of this kind before 1975.

If neither Measles nor this Court’s rule distinguishing legal from equitable restitution

resolves this appeal in favor of the Bureau, first principles would. The language in the Court of

Claims Act about “other equitable relief” merely preserves pre-1975 law about suing the State.

It does not create new causes of action against the State in the common pleas courts. The

relevant passage says that it “does not affect” the “original jurisdiction” of the common pleas

courts. R.C. 2743.03(A)(2) (emphasis added). That is, it left in place the pre-1975 law about

suits available against the State. That preservation language shows why this Court in Cristino

framed the jurisdictional rule permissively: a suit “against the state that requests only equitable

relief may be heard” in a common pleas court. 2008-Ohio-2013 ¶ 1 (emphasis added). And it is

why Santos described this language as “not divest[ing]” common pleas courts of jurisdiction to

hear claims for “equitable relief” that they already had. 2004-Ohio-28 ¶ 9 (emphasis added). So

while Santos and Cristino reached different outcomes about whether a suit against the Bureau

belonged in the Court of Claims, the principle underlying those decisions recognizes that the

Court of Claims Act did not create new causes of action against the State in common pleas

courts. That principle, too, requires reversing the Eighth District here.

a. Any ambiguities over whether jurisdiction exists outside the Court of Claims must be resolved by looking to the types of claims that were available against the State before the Court of Claims Act.

In its present form, R.C. 2743.03(A)(2) marks jurisdiction in the Court of Claims by

looking at whether a suit seeks the type of “equitable relief” over which courts of common pleas

had “original jurisdiction” before the Court of Claims Act. Id. That division “does not affect”

25

those types of claims so long as they are the “sole” ones asserted in the court of common pleas.

Id. “[A]ll other civil claims against the state fall within the exclusive, original jurisdiction of the

Court of Claims.” Cristino, 2008-Ohio-2013 ¶ 1. Any ambiguity about the breadth of the

“original jurisdiction” of the courts of common pleas over claims for “other equitable relief” in

R.C. 2743.03(A)(2) should be resolved against that jurisdiction because pre-1975 history shows

the narrow nature of the equitable relief traditionally allowed in those courts.

The search for the meaning of statutory language often benefits from the perspective of

what preceded it. See, e.g., State ex rel. Johnston v. Ohio Bur. of Workers’ Comp., 92 Ohio St.

3d 463, 470 (2001) (“historical background against which a statute is enacted” is relevant to

meaning); Columbus City School Dist. Bd. of Educ. v. Testa, 130 Ohio St. 3d 344, 2011-Ohio-

5534 ¶ 21 (using “legislative background” to confirm meaning of statute); R.C. 1.49(D) (court

may consult former law on the “same or similar subjects” to resolve ambiguity).

The pre-enactment background shows the narrowness of the “equitable relief” that R.C.

2743.03(A)(2) “does not affect.” Before the Court of Claims Act, courts of common pleas

generally had original jurisdiction over suits against the “State” that were either suits against

individual officers or suits against the State authorized by a specific statute. See Part A.2, supra.

Any claimed relief that does not fall into these categories is presumptively a “civil action[]

against the state permitted by the waiver of immunity contained in” R.C. 2743.02(A)(1). See

R.C. 2743.03(A)(1).

Two examples show the narrowness of the court of common pleas’ “original jurisdiction”

over “equitable relief” under R.C. 2743.03(A)(2). Consider a claim for unjust enrichment.

Although certain remedies for unjust enrichment are equitable, e.g., Cundall v. U.S. Bank, 122

Ohio St. 3d 188, 2009-Ohio-2523 ¶ 39, “restitution has been available both in equity and in law

26

as the remedy for an unjust enrichment,” Santos, 2004-Ohio-28 ¶ 11 (emphasis added). Before

Santos, this Court affirmed a judgment arising from the Court of Claims that recognized a

workers’ compensation insurer’s right to recover overpayment on a “theory of unjust

enrichment.” Liberty Mut. Ins. Co. v. Indus. Comm’n of Ohio, 40 Ohio St. 3d 109, 110 (1988).

Indeed, in an earlier phrase of that litigation, this Court held that the insurer could not bring a

mandamus suit against the Bureau to compel a credit for an out-of-state payment because it had

an adequate remedy in the Court of Claims. State ex rel. Liberty Mut. Ins. Co. v. Indus. Comm’n

of Ohio, 18 Ohio St. 3d 290, 291 (1985). When it is ambiguous whether a claim for unjust-

enrichment seeks legal or equitable relief, therefore, the claim presumptively belongs in the

Court of Claims.

As a second example, a case decided shortly after the Court of Claims Act shows the

narrowness of prior statutory consent. That opinion examined whether the State had previously

afforded “an administrative remedy” for the precise tax-refund claims involved. Drain v.

Kosydar, 54 Ohio St. 2d 49, 55 (1978). Taking a microscope to past waivers, it held that no

suggested pre-1975 statutes gave a remedy because refunds on behalf of “vendors” or

“consumers” differed from those on behalf of “officers” or “employees.” Id. at 53-54. The

taxpayer therefore had a remedy in the Court of Claims.

True equitable relief against the State was rarely available before 1975. The Court of

Claims Act preserved that state of affairs; it did not change it. See Friedman, 18 Ohio St. 3d at

88 (“exceptions to [the Court of Claims’] exclusive jurisdiction should be strict and narrow”).

b. Separation-of-powers principles prohibit this Court from creating jurisdiction in the courts of common pleas.

Any common-law holding that the State is amenable to suit in the common pleas courts

also risks violating the separation of powers because the Ohio Constitution gives the General

27

Assembly, not the courts, the authority to waive Ohio’s sovereign immunity. Since 1912, the

State’s sovereign immunity has been embedded in the Constitution. See Ohio Const. art. I, § 16.

That provision authorizes suits against the State “as provided by law.” Id. That text commits to

the General Assembly the power to decide if and where the State’s immunity will be set aside.

See, e.g., State v. Aalim, 150 Ohio St. 3d 489, 2017-Ohio-2956 ¶ 2 (same phrase in art. IV,

§ 4(B) “grants exclusive authority to the General Assembly”); Bank of Am., N.A. v. Kuchta, 141

Ohio St. 3d 75, 2014-Ohio-4275 ¶ 20 (similar). Whether before 1975 or after, the Constitution

leaves to the General Assembly the power to define the scope of the State’s sovereign immunity.

That conclusion is confirmed in precedent and statutory structure.

Past cases recognize that, under the “separation of powers,” “[i]t must be left to the

General Assembly to determine in what courts and in what manner suits against the state are to

be brought.” Palumbo, 140 Ohio St. at 60; Krause, 138 (“The history of Section 16 of Article I

shows that [it] empowered the General Assembly” to shape any waiver of immunity).

“Obviously,” then, “this court could not constitutionally grant any consent to sue the state.”

Krause, 31 Ohio St. 2d at 144. When the people added language to Article I, § 16 in 1912, they

handed the State’s immunity, and any retreat from it, to the General Assembly.

Exercising this authority, the General Assembly has placed certain limitations on its

general waiver of sovereign immunity. See Ashland, 63 Ohio St. 3d at 651 (waiver confined by

the “limits provided in [Section] 2743.02”). For example, the General Assembly has decided

that the waiver is generally limited by a two-year statute of limitations. R.C. 2743.16(A). An

identical claim in the common pleas court may enjoy a longer limit. See, e.g., R.C. 2305.07;

Watkins v. Dep’t of Youth Servs., 143 Ohio St. 3d 477, 2015-Ohio-1776 ¶ 13. An atextual

28

holding that a claim belongs in a common pleas court instead of the Court of Claims risks

thwarting the legislative choice to cabin the State’s liability for most claims to two years.

Likewise, the General Assembly has decided that a suit in the Court of Claims “results in

a complete waiver” of any action against a state officer or employee. R.C. 2743.02(A)(1). The

Court should also not lightly cast aside (through common-law decisionmaking) this policy of

absolving officers and employees of liability because the State has agreed to accept

responsibility for their actions. See, e.g., Paramount Film Distrib. Corp. v. Tracy, 175 Ohio St.

55, 60 (1963) (Matthias, J., concurring) (questioning whether officers should “be held

answerable for the performing of their duties” when sued for acts taken under a law later

declared unconstitutional). Any decision reading Court of Claims jurisdiction narrowly could

frustrate the General Assembly’s desire to assume responsibility for its officers and employees

through a defense litigated in the Court of Claims. Cf. Louis Jaffe, Suits Against Governments &

Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 9 (1963) (in England, “the King could claim

[an officer’s] act as his own and thus insulate the officer from responsibility”).

c. Cirino’s claim would have been kicked out of courts of common pleas before 1975, and so it belongs in the Court of Claims today.

Cirino’s claim belongs in the Court of Claims because the State never consented to a suit

like this before 1975. This Court’s pre-1975 case law illustrates that suits against the State were

permitted in only narrow circumstances. In Palumbo, for example, a creditor sought to garnish

the wages of a debtor, who happened to be an employee of the Industrial Commission. 140 Ohio

St. at 55. The Court held that no statute “provid[ed] for the maintenance of suits against the

sovereign state itself,” id. at 60, and that the suit could not be reframed as a suit against an officer

alone because an order to garnish wages could ultimately require “payment from state funds,” id.

at 61. At bottom, said the Court, the only way to “carry . . . into effect” a system of garnishing

29

state-employee wages was “adequate legislation.” Id. at 63. Until then, “the orderly process of

government” meant respecting the General Assembly’s choice to leave the State’s immunity

intact. Id. at 64.

Five years later, the Court had to decide whether the State had to pay taxes on its own

liquor sales. Once again, the outcome turned on whether the suit was, in substance, one against

the State itself or against an officer. See Glander, 148 Ohio St. 188. The Court ultimately

concluded that the mandamus suit against the Tax Commissioner was a suit against the State

itself because the claim could not be viewed as merely a request that the Commissioner perform

some duty “pertinent” to the claim. Id. at 195.

About a decade before the Court of Claims Act, another decision illustrated how narrow

statutory relief was before 1975. The Court entertained a suit against several state officers to

recover allegedly illegal taxes. Paramount Film Distributing Corp., 175 Ohio St. at 55. The

court applied a specific statute authorizing courts to “‘enjoin the illegal levy’” of a tax, although

the action was out of time. Id. at 56 (quoting statute). Three concurring Justices thought the

statute did not apply to the particular fees, such that any remedy would need to be brought before

the “Sundry Claims Board.” Id. at 61 (Matthias, J., concurring). Before 1975, relief for the

obvious harm of overpaying a tax turned on a precise statute giving the taxpayer a cause of

action against the State. Even then, the plaintiffs often sued state officers, not the State itself.

As another example, shortly after the Court of Claims Act took effect, the Court

considered a tax-refund claim challenging a sales-tax assessment. Drain, 54 Ohio St. 49. The

Court rebuffed suggested pre-1975 remedies. Id. at 53-54. Since the precise remedy the

taxpayer sought was not available before the Court of Claims Act, the Court held, the taxpayer

had a remedy in the Court of Claims the same as if the suit were “between private parties” for

30

conversion. Id. at 55. As in Palumbo, Glander, and Paramount, the touchstone was whether the

State had consented to the precise kind of suit involved before 1975.

To be sure, some cases before 1975 awarded money to plaintiffs who sued state officers,

usually in mandamus. For example, in Jones, and Monaghan, plaintiffs secured money

judgments incidental to a declaration that a state officer acted illegally. See Jones, 152 Ohio St.

287; Monaghan v. Richley, 32 Ohio St. 2d 190 (1972). But those cases involved commands to

State officers, not the State itself. And those suits involved requests to enforce specific statutory

commands. Cirino’s suit fails on both counts: it is not a suit against a State officer, and it asks

the Court to impose liability under the most general of statutes.

Applying these principles to Cirino’s case shows that it belongs in the Court of Claims.

His suit is directed at the State, not a State officer. See R. 1 ¶ 2 (Supp. S-1); see, e.g., Friedman,

18 Ohio St. 3d at 87 (it is “beyond dispute” that a suit against an agency is “a suit against the

state.”); Wolf, 170 Ohio St. syll. ¶ 4 (university is a non-suable “instrumentalit[y] of the State);

Palumbo, 140 Ohio St. at 55 (Industrial Commission, as “agency” of the State, immune from

suit). And the suit seeks money, not merely a declaration or injunction. See R. 1 at Prayer

(Supp. S-11). Cirino can point to no pre-1975 statute that waived the State’s sovereign immunity

and allowed a suit for a money award equivalent to what a third party charged the plaintiff.

Cirino’s suit must be brought in the Court of Claims. The Eighth District erred by holding

otherwise.

C. The Eighth District’s holding is not supportable.

The Eighth District’s judgment is out-of-step with the principles defining Court of

Claims’ jurisdiction. The judgment does not squarely confront the import of Measles, the line

between legal and equitable restitution, or the question whether a suit of this type was available

in a common pleas court before 1975. That alone should warrant reversal.

31

The Eighth District’s judgment is also inconsistent with precedent and the principles they

embrace. The Eighth District oversimplified Santos and similar authority by reducing them to

the proposition that a suit in common pleas is proper whenever a plaintiff alleges that a state

agency “fails to pay amounts it should have paid.” App. Op. ¶ 55. Neither first principles nor

this Court’s cases are that broad. Under first principles, “suits seeking (whether by judgment,

injunction, or declaration) to compel the defendant to pay a sum of money to the plaintiff are

suits for money damages, as that phrase has traditionally been applied, since they seek no more

than compensation for loss resulting from the defendant’s breach of legal duty.” Great-West,

534 U.S. at 210 (citation and internal quotation marks omitted); id. (“A claim for money due and

owing under a contract is quintessentially an action at law.”) (citation and internal quotation

marks omitted)); Murphy, Misclassifying Monetary Restitution, 55 S.M.U. L. Rev. at 1606-07

(“restitution claims for money typically have been asserted at law, subject to a limited set of

circumstances”). This Court’s cases likewise recognize that equitable restitution is limited to

certain suits that seek “the return of specific funds.” Santos, 2004-Ohio-28 ¶ 17 (emphasis

added); see also Cristino, 2008-Ohio-2013 ¶ 15 (distinguishing Santos as involving the “the

return of funds that had once been in [plaintiffs’] possession”). A claim that the State should

have paid more money is not automatically a claim that can be litigated in common pleas courts.

Turning to statutes, the appeals court wrongly focused on the fact that the Bureau

deposited money with Chase, and did not “deliver benefits directly to Cirino.” App. Op. ¶ 56.

The Eighth District intimates that delivery to Chase was incompatible with the Bureau’s

obligation to pay only employees and their dependents. Id. But, even the old system of mailing

a paper check did not deliver benefits “directly to” any claimant. “Receipt of a check does not,

however, give the recipient a right against the bank. The recipient may present the check, but, if

32

the drawee bank refuses to honor it, the recipient has no recourse against the drawee.” Barnhill

v. Johnson, 503 U.S. 393, 398 (1992); R.C. 1303.45 (a “check or other draft does not, of itself,

operate as an assignment of any funds in the hands of the drawee available for its payment, and

the drawee is not liable on the instrument until he accepts it.”). In other words, the paper check

was only a step in benefits delivery. It did not guarantee the full face value in the recipient’s

hands in cash. See Unbanked, Communities & Banking, at 25 (Spring 2007) (check-cashing fees

may reach $20 per check); cf. Report to Congress at 5 (teller transactions may cost $15). Indeed,

no system “directly” delivers benefits short of giving a bag of money to every claimant.

It is no answer, as the Eighth District seems to have thought, App. Op. ¶¶ 57-59, that

Cirino characterizes his claim as a “statutory violation.” R. 1 ¶¶ 28-30 (Supp. S-8—9). As in

Measles, Cirino’s effort to “steer” the issue to a statute does not override the contractual

ingredient here. 2011-Ohio-1523 ¶ 12; see also App’ee Br. in No. 2010-393 at 13 (Measles

claimants “demand[ed]” that payments be made as “required by the statute”).

Regardless, the outcome in Measles is consistent with the background principle that

statutory violations are usually claims at law. Courts have long treated statutory violations as

actions in quasi contract or actions on a debt, both actions at law. For example, the Supreme

Court has said that the law “regarded” a claim for statutory boat-pilot fees as an action for “quasi

contract.” S.S. Co. v. Joliffe, 69 U.S. (2 Wall.) 450, 457-58 (1865); see also J.B. Ames, The

History of Assumpsit, 2 Harv. L. R. 53, 64 (1888) (Quasi-contracts are “founded [among others]

. . . upon a statutory, official, or customary duty . . . .”). And Justice Story said before then that

“liabilities or rights created by statute” may often be vindicated by an action for “debt.” Bullard

v. Bell, 4 F. Cas. 624, 639 (C.C.D.N.H. 1817) (No. 2,121). Those categorizations have stood the

test of time. See, e.g., Ex parte Water Works & Sanitary Sewer Bd., 93 So. 3d 94, 98 (Ala. 2012)

33

(“[W]hen a statute creates a liability to pay money and prescribes no particular form of action for

its recovery, an action in debt is the appropriate remedy.”) (internal quotation marks omitted);

Pounds Photographic Labs, Inc. v. Noritsu Am. Corp., 818 F.2d 1219, 1222 (5th Cir. 1987)

(“under Texas law liability created by statute is an action for debt”); United States v. Limbs, 524

F.2d 799, 801 (9th Cir. 1975) (“A statutory right of recovery may be deemed quasi-contractual

. . . .”) (collecting authorities).

Both an action for quasi contract and an action for a debt are actions at law. See, e.g.,

Hughes v. Oberholtzer, 162 Ohio St. 330, 335 (1954) (“quasi contract, . . . [t]hough equitable in

nature and origin, . . . may be enforced at law); Del Monte Dunes, 526 U.S. 687, 717 (plurality

op.) (“quasi contract was itself an action at law”); 1 George E. Palmer, The Law of Restitution §

1.1 (1978) (quasi contract is an action at law); Complete Bldg. Show Co. v. Albertson, 99 Ohio

St. 11, 15 (1918) (“an action for the recovery of money as a debt or as damages is essentially an

action at law”); Deutsche Bank Nat’l Tr. Co. v. Holden, 147 Ohio St. 3d 85, 2016-Ohio-4603

syll. ¶ 1 (describing action to collect mortgage debt as an “action at law”); Feltner v. Columbia

Pictures TV, 523 U.S. 340, 350 (1998) (action for a debt is “a prototypical action brought in a

court of law”). Cirino’s claim that a statute requires the Bureau to pay him more money should

be treated as a claim at law.

Cirino’s pleadings cannot mask the legal nature of his suit. As this Court said a century

ago, an action at law “cannot be converted into a suit in equity by the mere use of words and

phrases usually found only in pleadings in equitable actions, no matter how often repeated nor

the extent of variation of such allegations.” Complete Bldg. Show, 99 Ohio St. at 15. The Eighth

District’s focus on the statutes simply confirms that this case belongs in the Court of Claims.

34

The Eighth District then tried to confront the obvious problem that the Bureau did not

have the funds that Cirino sought by noting that Chase served as the Bureau’s agent for certain

purposes. App. Op. ¶¶ 58-59. See Santos, 2004-Ohio-28 ¶ 13 (restitution is equitable when

sought against “‘particular funds or property in the defendant’s possession’”) (citation omitted);

Montanile, 136 S. Ct. at 659 (restitution is a legal remedy when the funds are no longer in the

defendant’s possession). The Eighth District’s approach to agency, though, violates the

“hornbook learning that because one is an agent for one purpose he is not an agent for all.”

Sherman v. Korff, 91 N.W.2d 485, 487 (Mich. 1958); cf. Restatement (Third) of Agency § 3.14

(2006) (an agent may act “in the same transaction” on behalf of “more than one principal”).

Even if Chase was the Bureau’s agent for some purpose, but see id. § 3.14, cmt. c (“Popular or

commercial usage of the term[] ‘agent’ . . . does not control how a particular actor is

characterized for legal purposes.”), Chase was not the Bureau’s agent for all purposes. “An

agent for one purpose is not an agent for every other purpose.” Anderson v. Volmer, 83 Mo. 403,

406 (1884).

At best, Chase was the Bureau’s agent for the purpose of distributing debit cards and

crediting them with claimants’ funds. But Chase was Cirino’s agent for the purpose of carrying

out his instructions about how to access those funds. Restatement of Agency § 3.14, cmt. c.

(noting that an insurance “agent” sometimes serves the insured and sometimes the insurer in the

same series of transactions). After all, “an agency relationship requires the purported principal to

have the right of control over the purported agent’s actions.” Fraley v. Estate of Oeding, 138

Ohio St. 3d 250, 2014-Ohio-452 ¶ 27; Cincinnati Golf Mgmt. v. Testa, 132 Ohio St. 3d 299,

2012-Ohio-2846 ¶ 20 (defining agency as “a consensual fiduciary relationship between two

persons where the agent has the power to bind the principal by his actions, and the principal has

35

the right to control the actions of the agent” (internal quotation marks omitted)); Hanson v.

Kynast, 24 Ohio St. 3d 171, 173 (1986) (principal’s control is “directed toward the attainment of

an objective” that the principal seeks) (collecting cases). Cirino had all the control over Chase

(and whether he paid any fees) because he could instruct Chase to deliver his benefits via ATM,

in cash, or as payment for goods and services he consumed. If agency principles apply here, they

undercut rather than support the Eighth District’s judgment.

The appeals court concluded its reasoning with the claim that Cirino sought the “specific

funds” or the “very thing” that he claims he should have received. App. Op. ¶ 60 (citation

omitted). That only makes sense if the funds that Chase collected are somehow in the Bureau’s

control. They are not. Under the agreement between Chase and the Bureau, Chase received the

fees that claimants incurred for certain transactions. Moreover, if the Bureau were to claw back

the fees that Chase earned by serving Ohio’s workers’ compensation claimants, the Bureau

would breach its agreement with Chase and torpedo a program that benefits thousands of

workers’ compensation claimants. If the logic of a lawsuit requires harming a broad class that

benefits from the challenged practice, there is probably something wrong with the theory of the

lawsuit. Cirino’s choice to bypass an ATM and use a teller every two weeks should not require

tens of thousands of beneficiaries to give up the benefits and conveniences they enjoy from

electronic payments.

36

CONCLUSION

The Court should reverse the Eighth District’s judgment.

Respectfully submitted,

MICHAEL DEWINE (0009181) Attorney General of Ohio /s Eric E. Murphy ERIC E. MURPHY* (0083284) State Solicitor *Counsel of Record MICHAEL J. HENDERSHOT (0081842) Chief Deputy Solicitor MARK E. MASTRANGELO (0023603) JEFFREY B. DUBER (0018532) Assistant Attorneys General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 eric.murphy@ohioattorneygeneral.gov

RONALD D. HOLMAN, II (0036776) MICHAEL J. ZBIEGIEN, JR. (0078352) DANIEL H. BRYAN (0095309) Special Counsel appointed by the Attorney General Taft Stettinius & Hollister L.L.P. 200 Public Square, Suite 3500 Cleveland, Ohio 44114 216-241-2838

Counsel for Defendant-Appellant Ohio Bureau of Workers’ Compensation

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Merit Brief of Appellant Ohio Bureau of Workers’

Compensation was served by U.S. mail this 12th day of December, 2017, upon the following

counsel:

Paul W. Flowers Paul W. Flowers Co., L.P.A. Terminal Tower, Suite 1910 50 Public Square Cleveland, Ohio 44113

W. Craig Bashein John P. Hurst Bashein & Bashein Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113

Charles J. Gallo Charles J. Gallo Co., L.P.A. 55 Public Square, Suite 2222 Cleveland, Ohio 44113

/s Eric E. Murphy Eric E. Murphy State Solicitor

APPENDIX

In the

Supreme Court of Ohio

MICHAEL CIRINO, et al.,

Plaintiffs-Appellees,

v.

OHIO BUREAU OF WORKERS’ COMPENSATION,

Defendant-Appellant.

:::::::::

Case No. ________ On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District Court of Appeals Case No. 104102

______________________________________________________________________________

NOTICE OF APPEAL OF DEFENDANT-APPELLANT OHIO BUREAU OF WORKERS’ COMPENSATION

______________________________________________________________________________

W. CRAIG BASHEIN (0034591) JOHN P. HURST (0010569) Bashein & Bashein Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113 216-771-3239

CHARLES J. GALLO (0043714) Charles J. Gallo Co., L.P.A. 55 Public Square, Suite 2222 Middleburg Heights, Ohio 44113 216-771-1081

PAUL W. FLOWERS (0046625) Paul W. Flowers Co., L.P.A. Terminal Tower, Suite 1910 50 Public Square Cleveland, Ohio 44113 216-344-9393 pwf@pwfco.com

Counsel for Plaintiffs-Appellees

MICHAEL DEWINE (0009181) Attorney General of Ohio

ERIC E. MURPHY* (0083284) State Solicitor *Counsel of Record MICHAEL J. HENDERSHOT (0081842) Chief Deputy Solicitor MARK E. MASTRANGELO (0023603) JEFFREY B. DUBER (0018532) Assistant Attorneys General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 eric.murphy@ohioattorneygeneral.gov

RONALD D. HOLMAN, II (0036776) MICHAEL J. ZBIEGIEN, JR. (0078352) DANIEL H. BRYAN (0095309) Special Counsel appointed by the Attorney General Taft Stettinius & Hollister L.L.P. 200 Public Square, Suite 3500 Cleveland, Ohio 44114 216-241-2838 rholman@taftlaw.com

Counsel for Defendant-Appellant Ohio Bureau of Workers’ Compensation

Supreme Court of Ohio Clerk of Court - Filed February 03, 2017 - Case No. 2017-0179

EXHIIBT 1

NOTICE OF APPEAL OF DEFENDANT-APPELLANT OHIO BUREAU OF WORKERS’ COMPENSATION

Defendant-Appellant Ohio Bureau of Workers’ Compensation gives notice of this

discretionary appeal to this Court, pursuant to Ohio Supreme Court Rules 5.02 and 7.01, from a

decision of the Eighth District Court of Appeals captioned Michael Cirino, et al. v. Ohio Bureau

of Workers’ Compensation, No. 104102, issued and journalized on December 22, 2016.

Date-stamped copies of the Eighth District’s Journal Entry and Opinion and entries of the

Cuyahoga County Common Pleas Court are attached as Exhibits 1, 2, 3, and 4, respectively, to

the Memorandum in Support of Jurisdiction.

For the reasons set forth in the accompanying Memorandum in Support of Jurisdiction,

this case is of public and great general interest.

Respectfully submitted,

MICHAEL DEWINE (0009181) Attorney General of Ohio

/s Eric E. Murphy ERIC E. MURPHY* (0083284) State Solicitor *Counsel of Record MICHAEL J. HENDERSHOT (0081842) Chief Deputy Solicitor MARK E. MASTRANGELO (0023603) JEFFREY B. DUBER (0018532) Assistant Attorneys General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 eric.murphy@ohioattorneygeneral.gov

RONALD D. HOLMAN, II (0036776) MICHAEL J. ZBIEGIEN, JR. (0078352) DANIEL H. BRYAN (0095309) Special Counsel appointed by the Attorney General Taft Stettinius & Hollister L.L.P. 200 Public Square, Suite 3500 Cleveland, Ohio 44114 216-241-2838 Counsel for Defendant-Appellant Ohio Bureau of Workers’ Compensation

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Notice of Appeal of Defendant-Appellant Ohio

Bureau of Workers’ Compensation was served by U.S. mail this 3d day of February, 2017, upon

the following counsel:

W. Craig Bashein John P. Hurst Bashein & Bashein Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113

Charles J. Gallo Charles J. Gallo Co., L.P.A. 55 Public Square, Suite 2222 Middleburg Heights, Ohio 44113

Paul W. Flowers Paul W. Flowers Co., L.P.A. Terminal Tower, Suite 1910 50 Public Square Cleveland, Ohio 44113 Counsel for Plaintiffs-Appellees

/s Eric E. Murphy Eric E. Murphy State Solicitor

Court of appeals! of <0f)to

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 104102

MICHAEL CIRINO, ET AL.

PLAINTIFFS-APPELLEES

vs.

OHIO BUREAU OF WORKERS’

COMPENSATION

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED IN PART; DISMISSED IN PART;

REMANDED

Civil Appeal from the

Cuyahoga County Court of Common Pleas

Case No. CV-10-727380

BEFORE: E.A. Gallagher, P.J., Boyle, J. and S. Gallagher, J.

RELEASED AND JOURNALIZED: December 22, 2016

( CV10727380 96969571

96969571

EXHIIBT 2

ATTORNEYS FOR APPELLANT

Ronald D. Holman, II

Michael J. Zbiegien, Jr.

Daniel H. Bryan

Taft Stettinius & Hollister L.L.P.

200 Public Square, Suite 3500

Cleveland, Ohio 44114

Mark E. Mastrangelo

Jeffrey B. Duber

Assistant Attorneys General

615 West Superior Avenue, 11th Floor

Cleveland, Ohio 44113-1899

ATTORNEYS FOR APPELLEES

W. Craig Bashein

John Hurst

Bashein & Bashein Co., L.P.A.

Terminal Tower, 35th Floor

50 Public Square

Cleveland, Ohio 44113

Charles J. Gallo

Charles J. Gallo Co., L.P.A.

55 Public Square, Suite 2222

Cleveland, Ohio 44113

Paul W. Flowers

Paul W. Flowers Co., L.P.A.

Terminal Tower, Suite 1910

50 Public Square

Cleveland, Ohio 44113

EILEEN A. GALLAGHER, P.J.:

{f 1} This appeal involves a class action filed by plaintiff-appellee Michael

Cirino on behalf of himself and other injured workers (collectively, “plaintiffs”)

who were paid workers’ compensation benefits, most on a biweekly basis,

through the Ohio Bureau of Workers’ Compensation’s (the “BWC’s”) mandatory

electronic benefits transfer program (the “EBT program”). Under the EBT

program, workers’ compensation benefit payments were credited to debit cards

issued by JPMorgan Chase Bank, N.A. (“Chase”) that the benefit recipients then

used to access their benefit payments. Cirino alleges that he and other benefit

recipients who received workers’ compensation benefits through the EBT

program did not receive the full amount of the workers’ compensation benefits

\

to which they were entitled because they were assessed various fees by Chase

to access their benefit payments using the debit cards. Cirino contends that the

BWC’s mandatory EBT program and, in particular, the fees that the BWC

authorized Chase to charge benefit recipients to access their workers’

compensation benefits under the EBT program, violates Article II, Section 35 of

the Ohio Constitution and R.C. 4123.341 and 4123.67.

{f 2} The BWC appeals the trial court’s denial of its motion to dismiss, its

certification of a class under Civ.R. 23(B)(2) and 23(B)(3) and its rulings on

summary judgment in favor of Cirino. The BWC contends that the trial court

erred in denying its motion to dismiss for lack of subject matter jurisdiction

because plaintiffs’ claims constitute “legal claims” that can only be brought in

the court of claims. The BWC contends that the trial court abused its discretion

in certifying the class because (1) Cirino is not an adequate class representative

and his claims are not typical of the claims of the class, (2) certification of the

class under Civ.R. 23(B)(2) was improper because plaintiffs seek “a recovery of

money that is individualized as to each class member” and (3) certification of the

class under Civ.R. 23(B)(3) was improper because “individual issues predominate

over common issues.” Finally, the BWC contends that the trial court erred in

concluding that the BWC’s benefit payment practices under the EBT program

violates Article II, Section 35 of the Ohio Constitution and R.C. 4123.341 and

4123.67 and in granting Cirino’s motion for summary judgment and denying its

own motion for summary judgment on that basis.

{13} For the reasons that follow, we affirm the trial court’s rulings on

subject matter jurisdiction and class certification, dismiss the BWC’s challenge

to the trial court’s rulings on summary judgment and remand the matter for

further proceedings.

Factual and Procedural Background

The BWC’s Obligation to Make Workers’ Compensation Benefit

Payments

{14} The BWC is responsible for the payment of workers’ compensation

benefits to injured workers who have been awarded benefits for workplace

injuries. R.C. 4123.54 et seq. As Mary Manderson, the BWC’s EBT coordinator,

testified: “That is what our job is, to put the benefits [in the hands of] the injured

worker.” Pursuant to R.C. 4123.341, the “administrative costs” incurred by the

BWC in discharging its duties, including the payment of benefits to claimants

awarded workers’ compensation benefits (“benefit recipients”), are to be borne

by the state and employers. R.C. 4123.341 provides, in relevant part:

The administrative costs of the industrial commission, the bureau

of workers’ compensation board of directors, and the bureau of

workers’ compensation shall be those costs and expenses that are

incident to the discharge of the duties and performance of the

activities of the industrial commission, the board, and the bureau

under this chapter and Chapters 4121., 4125., 4127., 4131., and

4167. of the Revised Code, and all such costs shall be borne by the

state and by other employers * * *

The Electronic Benefits Payment Program

{f 5} In or around 1995 or 1996, Ralph Morgan, the BWC’s manager of

benefits payable, had an idea for a cost-savings initiative. He observed that the

BWC had been making benefit payments to benefit recipients who had bank

accounts through electronic fund transfers (“EFTs”). These electronic transfers

were a fraction of the cost of printing and mailing benefit checks. However, a

number of benefit recipients did not have bank accounts into which funds could

be electronically transferred. As a result, they still received their benefit

payments through paper checks. Many of these recipients incurred substantial

check-cashing fees to convert the paper checks into cash that could be used to

pay for their living expenses. Morgan queried whether there was a way benefit

payments to these benefit recipients could also be made electronically and began

exploring whether debit cards could be used to pay benefits to benefit recipients

who did not have bank accounts.

{f 6} In 1997, the BWC conducted a pilot program with Bank One for the

electronic delivery of workers’ compensation benefit payments. Participants

were selected randomly and given the option of participating in the pilot

program. Under the pilot program, a benefit recipient could have benefit

payments deposited directly into his or her bank account or could receive

benefits through a Visa debit card credited with the amount of the benefit

payments due the benefit recipient. All costs of the pilot program were borne by

the BWC, i.e., the BWC paid any bank fees or other fees that would have

otherwise been charged to benefit recipients for accessing their benefits using

the debit card.1 The pilot program was a success and, sometime prior to 2000,

'There is no evidence in the record as to whether the fees paid by the BWC under

the pilot program were among the “administrative costs” allocated to the state,

counties, taxing districts and private employers under R.C. 4123.341. In an affidavit

submitted in support of the BWC’s motion for summary judgment, discussed infra,

Tracy Valentino, the BWC’s chief fiscal/planning officer, asserted that the BWC does

not include “expenses arising from banking or bank-related fees” in the “administrative

costs” it allocates to the state, counties, taxing districts and private employers for

recoupment under R.C. 4123.341 because “such services are not within the scope of [the

BWC’s] duties and functions” as set forth in R.C. 5121.121. However, he did not

address the costs incurred or fees paid in connection with the pilot program. Once the

program became mandatory, there were no such fees to allocate as costs because the

BWC was charged nothing by Chase for its role in distributing benefits under the EBT

program; all fees assessed in connection with the distribution of workers’ compensation

benefits under the EBT program were charged to the benefit recipients.

the BWC decided to implement the program permanently, offering it to all

workers’ compensation benefit recipients statewide on a voluntary basis.

{117} In 2006, the General Assembly enacted R.C. 4123.311, which

authorized the BWC to make payments of workers’ compensation benefits to

benefit recipients through direct deposit of funds by electronic transfer and debit

cards. R.C. 4123.311 provides:

(A) The administrator of workers’ compensation may do all of the

following:

(1) Utilize direct deposit of funds by electronic transfer for all

disbursements the administrator is authorized to pay under

this chapter and Chapters 4121., 4127., and 4131. of the

Revised Code;

(2) Require any payee to provide a written authorization

designating a financial institution and an account number to

which a payment made according to division (A)(1) of this

section is to be credited, notwithstanding division (B) of

section 9.37 of the Revised Code;

(3) Contract with an agent to do both of the following:

(a) Supply debit cards for claimants to access payments

made to them pursuant to this chapter and Chapters

4121., 4127., and 4131. of the Revised Code;

(b) Credit the debit cards described in division (A)(3)(a)

of this section with the amounts specified by the

administrator pursuant to this chapter and Chapters

4121., 4127., and 4131. of the Revised Code by utilizing

direct deposit of funds by electronic transfer.

(4) Enter into agreements with financial institutions to credit

the debit cards described in division (A)(3)(a) of this section

with the amounts specified by the administrator pursuant to

this chapter and Chapters 4121., 4127., and 4131. of the

Revised Code by utilizing direct deposit of funds by electronic

transfer.

(B) The administrator shall inform claimants about the

administrator’s utilization of direct deposit of funds by electronic

transfer under this section and section 9.37 of the Revised Code,

furnish debit cards to claimants as appropriate, and provide

claimants with instructions regarding use of those debit cards.

(C) The administrator, with the advice and consent of the bureau

of workers’ compensation board of directors, shall adopt rules in

accordance with Chapter 119. of the Revised Code regarding

utilization of the direct deposit of funds by electronic transfer under

this section and section 9.37 of the Revised Code.

{f 8} Ohio Adm.Code 4123-3-10 was thereafter revised to provide that

“[t]he standard method of delivering payment to a claimant or benefit recipient

shall be by electronic fund transfer.” Ohio Adm.Code 4123-3-10(A)(4). Ohio

Adm.Code 4123-3-10(D)(2) provides that “[f]or any compensation paid directly

to an injured worker or a dependent, the bureau shall require either an

electronic fund transfer into a savings or checking account, or shall issue to the

payee an electronic benefits card.” The BWC is required to notify benefit

recipients that benefits are paid through electronic transfer and to request bank

account information from benefit recipients for directly depositing benefit

payments. Ohio Adm.Code 4123-3-10(D)(3). If a benefit recipient does not have

a bank account or fails to provide the BWC with his or her bank account

information, the BWC issues payments electronically to the benefit recipient by

debit card. Id.

The BWC’s Agreement with Chase to Distribute Benefits to EBT

Program Participants

{^f9} Pursuant to the authorization provided in R.C. 4123.311(A)(3) and

(4), on December 22, 2006, the BWC entered into an agreement with Chase, the

Chase Direct Payment Card Program—Agency Service Agreement (the “BWC-

Chase agreement”), to distribute benefit payments to benefit recipients under

the EBT program.2 Under the BWC-Chase agreement, Chase established an

individual account for each benefit recipient who was to receive workers’

compensation benefit payments through the EBT program. As Tracy Dangott,

a Chase vice president, explained: “There is an account underlying the card.”

The card is “simply an access device” that “draws off the balance.”

{^f 10} The BWC makes electronic transfers to Chase equal to the amount

of the benefits payments that are due benefit recipients participating in the EBT

program. Chase then credits those funds to the benefit recipients’ individual

accounts.

{f 11} Tracy Valentino, the BWC’s chief fiscal/planning officer, testified

that after the BWC transfers funds to Chase, it has “no access or control over the

funds except under limited circumstances involving fraud or mistake.”

Manderson testified that where the BWC determines it has made a payment in

2The BWC-Chase agreement was amended in January 2007 and April 2011.

However, those amendments are not material to the issues presented here.

error, e.g., where a power of attorney is not honored, a duplicate payment is

made or an injured worker is paid by his or her employer for time off, it will

submit an EBT reversal, removing the “erroneously deposited” funds from the

benefit recipient’s account.

{^112} The BWC-Chase agreement includes an attached fee schedule,

setting forth the fees “Chase will charge the Cardholders for its services * * *

which Chase may change with reasonable notice to the Cardholder.” The fee

schedule authorized Chase to charge EBT program participants ten different

fees for various banking activities,3 but benefit recipients could access their

benefits without being assessed a fee by (1) using their debit cards at Chase

ATM machines, (2) withdrawing their benefits in one teller transaction at a

Chase or other participating Visa member bank each month or (3) using their

debit card to pay for goods and services at merchants directly.

{If 13} Dangott testified that to access benefits under the EBT program,

benefit recipients had to activate the debit cards they received from Chase

“which then binds them to the terms and conditions [Chase} put[s] forth to

3These fees included: fees for debit card withdrawals from non-Chase ATMs

($1.50 per transaction), ATM balance inquiries at non-Chase ATMs ($.50 per

transaction), withdrawals from ATMs outside the United States ($3.00 per

transaction), two or more teller transactions in a month ($5.00 per transaction after

the first monthly teller transaction), converting debit card funds into foreign currencies

(3% of the transaction value), transactions denied for insufficient funds ($.50 per

transaction), check issuance ($12.50 per request), card replacement (after the second

card replacement) ($7.50 per card), overnight delivery service ($25.00 per delivery) and

inactivity fees ($1.50 per month).

them,” including the fee schedule. Dangott testified that, depending on how

benefit recipients chose to use their debit cards, “[e]very fee may be avoided.”

{^14} Morgan testified that the BWC “negotiated” the fee schedule “on

behalf of the injured worker.” Dangott similarly acknowledged that “[t]he

amount that [benefit recipients] would pay and for what service they were

paying was specifically approved by [the BWC].” Dangott testified that Chase

administers prepaid debit card programs for a number of different public sector

entities, each with a different fee schedule. He indicated that some public sector

entities, such as those involved in the disbursement of unemployment benefits,

refuse to allow charges for point-of-sale cash advances through the use of teller

transactions at a Chase bank and that cardholders in other public sector

programs can withdraw funds from an ATM using the prepaid debit card

without a fee. Dangott testified that the BWC is the only public workers’

compensation agency for which it manages a prepaid card program.

(115} Although Dangott asserted that Chase “offered cardholders multiple

no-cost options for accessing the entirety of their payments,” Manderson

acknowledged that, due to transaction limits and other restrictions on

withdrawals, there could be instances in which a benefit recipient could not

access all of his or her benefit payments under the EBT program at one time.

She indicated that limits or restrictions on withdrawals are determined by the

individual banks (in the case of a cash advance) or ATM owners (in the case of

an ATM withdrawal). Dangott acknowledged that, in 2011, Chase instituted an

$800 per day limit on its customers’ ATM withdrawals, “[rjegardless of [the]

institution,” as part of an “anti[-]money laundering program.”

{f 16} Morgan testified that during the BWC’s negotiations with Chase,

he objected to the imposition of a $5.00 fee for a second teller transaction in a

given month. Because most benefit recipients receive their benefits on a bi­

weekly basis, Morgan believed that that fee was “unfair.” He testified that he

voiced his concerns during the BWC’s negotiations with Chase and that, in

response, Chase offered to allow benefit recipients to conduct two monthly teller

transactions without a fee if the BWC would agree to eliminate the requirement

that Chase provide monthly account statements. The BWC refused to eliminate

the monthly statement requirement, and the $5.00 fee for a second monthly

teller transaction remained until September 2012. In September 2012, the fee

schedule was modified to permit benefit recipients to conduct two free teller

transactions each month.

Participation in EFT or EBT Program Becomes Mandatory

{117} In February 2008, participation in the BWC’s electronic payment

program using either EFT or EBT became mandatory for all workers’

compensation benefit recipients. Flyers were included with benefit recipients’

workers’ compensation benefit checks advising them that the BWC was

converting to electronic payment, that the BWC would no longer offer paper

checks as a payment method and that benefit recipients would have a choice of

receiving their benefits either through EFT or EBT. If benefit recipients

provided their bank account information, their benefits would be paid by direct

deposit without charge into their bank account. Those recipients who did not

have a bank account or who did not identify a bank account for direct deposit

were issued debit cards. The BWC provided information regarding the benefit

recipients to Chase and Chase sent those recipients an enrollment packet.

Benefit recipients were not permitted to opt out of the electronic payment

program and continue receiving paper checks except in certain extraordinary

circumstances where “hardship” was shown.4 As Morgan acknowledged, there

was nothing in the promotional materials benefit recipients received from the

BWC that indicated that any fees would be charged when accessing benefits

through the EBT program or that advised EBT program participants how fees

could be avoided. However, EBT program participants were purportedly

provided disclosure statements from Chase that identified the fees associated

with each transaction, which benefit recipients could review to determine how

to access their benefits to avoid paying any fees.

4 Morgan testified that he receives less than ten requests for a hardship

exception each year and makes the determination of whether a benefit recipient

qualifies for a hardship exception on a case-by-case basis. He indicated that examples

of hardship cases have included benefit recipients who are in a nursing home, are

paraplegics or cannot read or write.

Cirino’s Receipt of Benefits through the EBT Program

{1118} In 2009, Cirino applied for and began receiving workers’

compensation benefits for temporary total disability arising of out a workplace

accident. He was awarded $443 in weekly benefits, which were to be paid on an

biweekly basis in the amount of $886. After he received two benefit checks from

the BWC, which he deposited into his personal checking account at PNC Bank,

he received a notice from the BWC advising him that would no longer receive

paper checks and that he could either provide his bank account information to

set up direct deposit or receive his benefits through a debit card issued by Chase.

{1f 19} In August 2009, Cirino received several notices from the BWC and

Chase regarding the EBT program. One such notice from the BWC, dated

August 20, 2009, stated, in relevant part:

This may be the last paper check you receive from BWC. For your

security and convenience, BWC has established an electronic

benefits transfer (EBT) debit card account for you. BWC will make

future payments to you through the EBT debit card program. Your

EBT debit card is issued through Chase and will arrive soon. The

card will give you around-the-clock access to your money at any

bank machine. You can also use it like a credit card to make

purchases. If you would prefer BWC to deposit your benefits

directly to your bank account, please call 1-800-OHIOBWC and

listen to the options, or return the completed Direct deposit

authorization form shown on page 2. * * *

{H20} Another notice from the BWC dated August 18, 2009, stated:

This notice confirms your enrollment in BWC’s electronic benefits

transfer (EBT) debit card program effective 08/18/2009, Chase bank

manages the program for BWC.

Fraud Disclaimer/Terms of Usage

Under the terms of this agreement, deposit of your

compensation benefit(s) by BWC or use of your EBT

debit card by you constitutes payment of benefits under

the provisions of Ohio Revised Code section 4123.67.

By receiving the electronic benefit card and attempting

payments by this method, you agree that you are

entitled to the benefits. You also agree to notify BWC

should you become employed or otherwise ineligible to

receive these benefits.

If you have any questions or would prefer to have BWC deposit your

benefit payments directly to your bank account, please call 1-800-

OHIOBWC, and listen to the options. BWC will no longer issue

paper checks as a payment method.

{f 21} Cirino also received a flyer from the BWC for its electronic benefit

card, which stated, in relevant part:

Now you can have quick, easy access to your workers’

compensation benefits thanks to the Electronic Benefit

Card, issued by the Ohio Bureau of Workers’ Compensation

(BWC) and Chase. The Electronic Benefit Card is available

to all benefit recipients who receive payment(s) from BWC.

Why you should receive the Electronic Benefit Card?

Why shouldn’t you?

1. Pay no more check cashing fees! Receive 100 percent of your

benefit.

2. Receive around-the-clock access to your money. You can use the

Electronic Benefit Card at any bank machine, anywhere (with no

ATM fees if used at Chase machines).

3. Make bill payments by phone.

4. Use it like a credit card for making purchases (only without the

costly finance charges).

You don’t need to have a bank account.

Chase issues your Electronic Benefit Card, which will directly

access your BWC account. You will receive a personal identification

number (PIN) when you call to activate your card, which ensures

that only you can access your money. It is safer than carrying cash,

and replacing a lost or stolen card is quick and easy.

It’s easy to receive. Just complete the attached, postage-paid form

and mail it to BWC. * * *

To receive.

Carefully read and sign the Electronic Benefit Card agreement and

provide your claim number. * * *

(Emphasis sic.) It further provided that there was “[n]o monthly or annual fee.”

{f 22} The flyer included a detachable postage paid “enrollment card” with

an “Electronic Benefit Card agreement” benefit recipients were asked to sign,

which stated, in relevant part:

This authorization shall remain in full force and effect until BWC

has received notification from me of its termination or until there is

no account or payment activity for six months; after which this

authorization will be terminated and all future payments will be

delivered by check to the last known address; or until an

authorization is received by BWC.5

I agree that under the terms of this agreement, deposit of my

compensation payment(s) to this account constitutes payment to me

under the provisions of the Ohio Revised Code (ORC) Section

4123.67. * * *

Cirino did not recall whether he ever signed the electronic benefit card

agreement. Morgan testified that after the electronic payment program became

mandatory, benefit recipients received an EBT card whether or not they

5Although the enrollment card suggests that checks would be issued if a benefit

recipient terminated his or her authorization under the EBT program or there was “no

account or payment activity for six months,” Manderson testified that “[ejlectronic

payment is mandatory” and that “[y]ou can’t get a check.”

returned the enrollment card or signed the electronic benefit card agreement if

they did not provide bank account information for direct deposit.

{^[23} Cirino testified that, although he had a bank account, he did not

wish to disclose his personal banking account information to the BWC or any

third party and, therefore, did not authorize the direct deposit of his benefit

payments into his bank account. Shortly after he received the August 20, 2009

letter from the BWC, Cirino testified that he was sent a Chase debit card to be

used to access the workers’ compensation benefits he was paid by the BWC.

Cirino testified that prior to his receipt of the Chase debit card, he had never

used an ATM card or debit card. Cirino claims that did not know he would be

assessed fees for accessing benefits before he used the card and claimed that he

never had never seen a Chase fee schedule until his deposition.

{^f24} Cirino testified that after he activated the card, he went to a local

Chase branch, gave the teller the debit card and his driver’s license and asked

to withdraw his biweekly benefit of $886. He received $886 in cash. The second

time he attempted to withdraw his biweekly $886 benefit through a teller

transaction, his request was denied. Cirino called the number on the back of the

debit card and was informed that the balance of his account was $881. When he

went back to the teller and attempted to withdraw the $881 balance in his

account, the teller informed him that she could not conduct the transaction and

that he would have to go to another branch to withdraw the funds because only

one attempted account withdrawal could be made at a branch in a single day.

Cirino went to another branch and withdrew the $881 in another teller

transaction.

{if25} Cirino testified that he later learned from his attorney that under

the EBT program, he was limited to one free teller transaction a month and that

for every subsequent teller transaction each month, Chase would assess him a

$5 fee.6 Despite this knowledge, Cirino continued withdraw his benefit

payments on a bi-monthly basis through teller transactions, incurring a $5 fee

with each second monthly teller transaction. Cirino accessed his benefits only

through teller transactions; he did not use his debit card at any ATMs, to make

purchases at merchants or in any other way. According to Chase’s records,

between September 23, 2009 and October 23, 2010, Cirino was assessed a $5

“POS Cash Advancfe]” charge on 14 occasions, totaling $70 in fees. As of his

deposition in May 2012, Cirino estimated that he had been charged

approximately $150 or $160 in fees to access his benefit payments twice a month

through teller transactions. Cirino does not dispute that he could have avoided

all fees by (1) authorizing the direct deposit of his benefit payments into his bank

account, (2) withdrawing all of his benefits from Chase ATMs or (3) waiting to

withdraw his two bi-monthly payments in a single monthly teller transaction.

6Chase ultimately refunded Cirino the first $5 fee he was assessed for a second

monthly teller transaction purportedly as a “one-time courtesy.”

The Costs of Distributing Benefits under the Mandatory EBT

Program

{f 26} Manderson testified that the goal of the EFT/EBT program was

“[t]o cut down the costs of producing checks.” She explained that prior to

implementation of the mandatory EFT/EBT program, the BWC had incurred

various administrative costs in purchasing checks, printing checks and mailing

checks that it no longer incurred once the mandatory EFT/EBT program was

implemented. Chase charged the BWC nothing for administering the EBT

program on its behalf. Dangott testified that Chase was compensated for its

services through the fees it charged EBT cardholders, interest earned on account

balances and interchange fees paid by merchants when the debit cards were

used to purchase goods or services. Chase retained all of the fees it collected

from debit card transactions under the EBT program; the BWC received no

portion of the funds withheld to pay for the fees charged by Chase.

{^[27} The BWC projected over $4.6 million in annual costs savings under

the electronic payment program. From June 2007 through February 2012,

Chase collected $1.47 million in fees from benefit recipients through EBT

transactions.

Legal Action

{f 28} On May 21, 2010, Cirino filed a class action complaint against the

BWC, challenging the validity of the EBT program and asserting claims for (1)

“statutory violation” of R.C. 4123.341 and 4123.67, (2) “restitution/unjust

enrichment/equitable disgorgement and injunctive relief’ and (3) “declaratory

relief.” Cirino requested that a class be certified and that he and the other class

members be awarded “equitable restitution,” “disgorgement” and “restoration”

of the benefits that were allegedly wrongfully withheld from their benefit

payments along with attorney fees, litigation expenses and court costs. Cirino

also requested a declaration (1) that the BWC’s “continuing practices” of

withholding fees from his and other class members’ benefit payments under the

EBT program violated the BWC’s “authority provided under Ohio statutory

laws,” (2) that such practices are “unlawful and unenforceable” against the class

and (3) “establishing the restitution and remedies that are due.” Cirino also

claimed that the class was entitled to “preliminary and permanent injunctive

relief’ enjoining the BWC and others acting in concert with it from engaging in

such practices.

{^29} The BWC filed an answer denying that it had engaged in any

wrongdoing and asserting a laundry list of affirmative defenses. On December

23, 2010, the BWC filed a motion to dismiss Cirino’s complaint for lack of subject

matter jurisdiction, asserting that because “none of the disputed funds are

collected or held by [the BWC],” Cirino was really seeking “legal damages” and

his lawsuit, therefore, belonged in the court of claims. In support of its motion,

the BWC attached: an affidavit from Morgan explaining the EBT program and

the BWC and Chase’s roles in the distribution of workers’ compensation benefits

under the EBT program; a copy of the BWC-Chase agreement and an affidavit

from John Guzzi, vice-president and assistant general counsel at J.P. Morgan

Electronic Financial Services, Inc., attaching documentation prepared by Chase

explaining the use of the EBT debit card (including an illegible “direct payment

card disclosure statement and user agreement”)7 and account statements and

printouts of computer screen entries pertaining to transactions involving Cirino’s

account. Cirino opposed the motion, asserting that because the complaint seeks

only equitable, declaratory and injunctive relief and does not seek an award of

“damages” against the BWC, his complaint was within the subject matter

jurisdiction of the common pleas court. On March 12, 2012, the trial court

denied the motion, concluding that Cirino’s claims were purely equitable in

nature and that it, therefore, had subject matter jurisdiction over such claims.

The court found that Chase was the BWC’s agent for the payment of benefits

and that because “money in an agent’s possession is imputed to its principal’s

possession,” Cirino’s claim for “the return of specific funds wrongfully collected

or held by the state” was brought in equity notwithstanding that he was seeking

reimbursement of fees that were collected by Chase.

7It is not clear from the record whether any of the Chase documents attached to

Guzzi’s affidavit, explaining the use of the EBT debit card were, in fact, provided to

Cirino. Guzzi’s affidavit does not state that these documents were provided to Cirino

or when these documents were used by Chase and there is no other evidence in the

record as to when these documents were used by Chase or during what period of time

they were provided to EBT program participants.

{f30} Five months later, Cirino filed a motion for class certification,

requesting that the following class be certified under Civ.R. 23(B)(2) and

23(B)(3):

All current and former participants in the Ohio Workers’

Compensation system who were assessed fees under authority of the

Chase Direct Payment Card Program—Agency Service Agreement

that was approved by Defendant, Ohio Bureau of Workers’

Compensation, and dated December 22, 2006, as amended.

The following were excluded from the proposed class:

all of Defendant’s officers, employees, and attorneys, the attorneys

representing the Named Plaintiff and members of the Class, and

any judge assigned to this case as well as his/her staff and family

members.8

{f31} In support of his motion, Cirino attached copies of several Chase

spreadsheets, the BWC-Chase agreement as amended, promotional materials

from the BWC and Chase related to the EBT direct payment card and excerpts

from the depositions of Cirino, Morgan, Manderson and Dangott. The BWC also

filed a motion for summary judgment, arguing that Cirino’s claims were

“unsupported and unsupportable as a matter of law.” The BWC asserted that,

based on the undisputed facts, the EBT program complied fully with the relevant

statutes and regulations and that Cirino’s unjust enrichment claim failed

because the BWC never charged, collected or benefitted from the $5 fees Chase

charged Cirino. The BWC also contended that because Cirino admitted he could

8Also excluded were “any claims arising prior to May 21, 2000 that could be

barred by the ten-year statute of limitations governing equitable actions.”

have avoided the $5 fees by having his benefit payments directly deposited into

his bank account, his failure to mitigate his damages barred any recovery. The

BWC argued that because Cirino could not prevail on his substantive statutory

violation and unjust enrichment claims, his request for declaratory judgment

must also be denied.

{132} In support of its motion, the BWC attached: the BWC-Chase

agreement; affidavits from Morgan and Valentino explaining the history of the

EBT program, the respective roles of the BWC and Chase in the distribution of

workers’ compensation benefits under the BWC-Chase agreement and the

BWC’s interpretation of “administrative costs”; an affidavit from Thomas Sico,

assistant general counsel for the BWC, relating to the public hearing on Ohio

Adm.Code 4123-3-10, and excerpts from the depositions of Cirino and Dangott.

{^33} On September 17, 2012, Cirino filed a combined opposition to the

BWC’s motion for summary judgment and his own cross-motion for summary

judgment. Cirino argued that, based on the undisputed material facts, the trial

court should issue a declaration (1) that the EBT program is unlawful to the

extent that it shifts the administrative costs of distributing workers’

compensation benefits to benefit recipients in violation of Article II, Section 35

of the Ohio Constitution and R.C. 4123.341 and 4123.67 and (2) that plaintiffs

are “entitled to a payment of benefits from the [BWC] equal to the fees that were

withdrawn by Chase.” Cirino also argued that plaintiffs were entitled to

“[Appropriate equitable relief’ restoring them to the “status quo ante they held

before the charges were assessed” and injunctive relief precluding the continued

withholding of fees from benefit recipients’ workers’ compensation benefit

payments.

{134} The BWC opposed Cirino’s motions for class certification and

summary judgment. In its opposition to Cirino’s motion for class certification,

the BWC once again argued that the trial court lacked subject matter

jurisdiction over Cirino’s claims and, therefore, was “without power” to certify

a class. The BWC also argued that (1) Cirino could not meet Civ.R. 23(A)’s

typicality and adequacy requirements, (2) certification under Civ.R. 23(B)(2) was

inappropriate because the predominant relief sought was monetary relief and

that each class member, assuming liability, would be entitled to an

individualized damage award and (3) certification under Civ.R. 23(B)(3) was

improper because Cirino could not establish an injury in fact to all class

members and had failed to show that common questions of law and fact

predominated over the individualized issues presented by the BWC’s defenses.

In support of its opposition, the BWC attached: excerpts from the depositions of

Manderson, Cirino and Dangott; copies of the Morgan and Valentino affidavits

it submitted with its summary judgment motion; an affidavit from Dangott

identifying the sources of Chase’s compensation under the EBT program and an

affidavit from Cheryl Belgrave, an employee of Cavitch, Familo & Durkin Co.,

L.P.A., attaching documents she downloaded from various websites regarding

“unbanked” and “underbanked” households. In its opposition to Cirino’s motion

for summary judgment, the BWC reiterated the arguments it made in its own

motion for summary judgment and its opposition to Cirino’s motion for class

certification.

{^[35} On October 21, 2014, the trial court held a hearing on class

certification. The parties waived the presentation of evidence at the hearing and

stipulated that the trial court could consider all evidence submitted by the

parties on summary judgment in deciding the issue of class certification.9 On

January 13, 2016, the trial court found that all requirements for class

certification had been met and certified the following plaintiff class under Civ.R.

23(B)(2) and 23(B)(3):

All current and former participants in the Ohio Workers’

Compensation system who were assessed unreasonable fees under

authority of the Chase Direct Payment Card Program—Agency

Service Agreement that was approved by Defendant, Ohio Bureau

of Workers’ Compensation, and dated December 22, 2006, and as

amended.10

9The trial court’s January 27, 2015 order suggests that other stipulations were

entered into by the parties relative to the class certification motion; however, the

transcript from the class certification hearing is not in the record and there is nothing

else in the record that appears to set forth these stipulations.

l0It is unclear from the trial court’s judgment entry why it modified the class

definition so as to limit the class to benefit recipients who were assessed

“unreasonable” or what fees the trial court considered to be an “unreasonable” fee

“With regard to class definition, the trial court has discretion to modify the class, even

sua sponte.” Hupp u. Beck Energy Corp., 2014-Ohio-4255, 20 N.E.3d 732, f 3 (7th

Dist.). Because neither party has claimed any error related to the trial court’s

{f 36} The trial court further held that “the claims of the class” would

consist of (1) claims for “restitution, unjust enrichment, disgorgement, and

injunctive relief’ and (2) “a declaratory judgment establishing that BWC’s

practices are unlawful and unenforceable” but would not include “the complaint’s

prayor [sic] for injunctive relief.”11 The trial court ordered that the BWC produce

a class list, including the types of fees and total amount of each fee charged to

each and that the parties submit a proposed class notice to the court.

{f 37} In a separate judgment entry, the trial court denied the BWC’s

motion for summary judgment and granted Cirino’s motion for summary

judgment, holding that the BWC violated “state constitutional policy” and R.C.

4123.341 by shifting administrative costs of benefit payments to EBT benefit

recipients and violated R.C. 4123.67 by “permitting] unlawful attachment of

claimants’ benefits by Chase to pay transaction fees.” The trial court also held

that “[e]ach of the theories advanced by Cirino” — equitable restitution, unjust

enrichment and disgorgement — “is a valid basis under Ohio law to require

definition of the class, we do not address that issue further here.

uIt is unclear what the trial court meant by its statement that “[t]he class

claims will not include the complaint’s prayor [sic] for injunctive relief,” particularly

given that it expressly included the complaint’s claim for “injunctive relief’ among the

“claims of the class.” With respect to plaintiffs’ claim for injunctive relief, the

complaint’s prayer requests only that the trial court award “such declaratory,

injunctive, and other equitable relief as is just and appropriate [.]” Once again, because

neither party has claimed any error related to this apparent discrepancy, we do not

address the issue further here.

BWC to * * * restore the part of those benefits deducted by Chase” and stated

that “[t]he amount of unpaid benefits, i.e., bank fees deducted from * * * benefits,

shall be calculated after hearing” for all members of the class. The court set a

date for the hearing and included Civ.R. 54(B) language in the judgment entry,

indicating that there was “no just reason for delay should an interlocutory

appeal of this order be pursued.”

{138} The BWC appealed, raising the following three assignments of error

for review:

Assignment of Error I:

The trial court erred in denying the motion of Defendant-Appellant

Ohio Bureau of Workers’ Compensation (the “Bureau”) to dismiss

for lack of subject-matter jurisdiction.

Assignment of Error II:

The trial court erred in granting the motion of Plaintiff-Appellee

Michael Cirino (“Plaintiff’ or “Cirino”) for class certification.

Assignment of Error III:

The trial court erred in granting Cirino’s motion for summary

judgment and in denying the Bureau’s motion for summary

judgment.

Law and Analysis

Subject Matter Jurisdiction

{139} We first address the BWC’s claim that the trial court lacks subject

matter jurisdiction to hear this matter. In both its first and second assignments

of error, the BWC challenges the trial court’s subject matter jurisdiction. In its

first assignment of error, the BWC asserts that the trial court erred in denying

its motion to dismiss for lack of subject matter jurisdiction. In its second

assignment of error, the BWC raises lack of subject matter jurisdiction as one

of the bases upon which the trial court allegedly erred in certifying the class.

{140} An appellate court can review only final, appealable orders.

Without a final, appealable order, an appellate court has no jurisdiction. See

Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878,1 9; Ohio

Constitution, Article IV, Section 3(B)(2); R.C. 2501.02. An order denying a

motion to dismiss is generally not a final, appealable order. See, e.g., DiGiorgio

v. Cleveland, 196 Ohio App.3d 575, 2011-Ohio-5824, 964 N.E.2d 495,1 4, citing

Polikoff v. Adam, 67 Ohio St.3d 100, 103, 616 N.E.2d 213 (1993). This rule

applies “with equal force” to motions that challenge a court’s subject matter

jurisdiction. See, e.g., Cantie v. Hillside Plaza, 8th Dist. Cuyahoga No. 99850,

2014-Ohio-822, 1 24; Matteo v. Principe, 8th Dist. Cuyahoga No. 92894,

2010-0hio-1204, 1 21.

{141} Although we would otherwise lack jurisdiction to consider the trial

court’s denial of the BWC’s motion to dismiss for lack of subject matter

jurisdiction as raised in the BWC’s first assignment of error, we can properly

consider the issue in the context of the BWC’s second assignment of error

because it is intertwined with our review of the trial court’s decision to certify

this case as a class action — which is a final appealable order under R.C.

2505.02(B)(5).

{142} “The court’s power to certify a class action is * * * limited to the

extent of its jurisdiction. If the court lacks subject matter jurisdiction to hear

the case, it also lacks authority to certify the case as a class action.” Lingo v.

State, 8th Dist. Cuyahoga No. 97537, 2012-Ohio-2391,1 15-16 (finding the trial

court abused its discretion in certifying class action because it lacked jurisdiction

to hear the case), aff’d on other grounds, 138 Ohio St.3d 427, 2014-0hio-1052, 7

N.E.3d 1188, and, overruled in part on other grounds, Lycan v. Cleveland, 146

Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d 593; see also Inti. Union of Operating

Engineers, Local 18 v. Norris Bros. Co., 8th Dist. Cuyahoga No. 101353,

2015-0hio-1140, 1 10, fin. 1 (subject matter jurisdiction could be considered on

appeal notwithstanding that trial court’s denial of motion to dismiss for lack of

subject matter jurisdiction was not a final appealable order where it was

“intertwined with” the trial court’s granting of petition to enforce arbitration,

which is a final appealable order).

{143} “‘Subject-matter jurisdiction is the power conferred on a court to

decide a particular matter on its merits and render an enforceable judgment over

the action.’” ABN AMRO Mtge. Group, Inc. v. Evans, 8th Dist. Cuyahoga No.

96120, 2011-Ohio-5654,15, quoting Udelson v. Udelson, 8th Dist. Cuyahoga No.

92717, 2009-Ohio-6462, 1 13. Where subject matter jurisdiction is challenged,

the burden of establishing subject matter jurisdiction rests with the party

asserting subject matter jurisdiction. See, e.g., Marysville Exempted Village

School Dist. Bd. of Edn. v. Union Cty. Bd. of Revision, 136 Ohio St.3d 146,

2013-0hio-3077, 991 N.E.2d 1134, 1 10 (“‘when jurisdictional facts are

challenged, the party claiming jurisdiction bears the burden of demonstrating

that the court has jurisdiction over the subject matter’”), quoting Ohio Natl. Life

Ins. Co. v. United States, 922 F.2d 320, 324 (6th Cir.1990); O’Shea v. Fayard, 8th

Dist. Cuyahoga No. 81791, 2003-0hio-4340, 6 (“When subject matter

jurisdiction is challenged, the plaintiff has the burden of proving that the chosen

court has jurisdiction.”).

{f 44} When determining whether subject matter jurisdiction exists, a

court may consider any pertinent evidentiary materials. See, e.g., Southgate

Dev. Corp. v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211, 214, 358 N.E.2d

526 (1976); Muhammad v. Ohio Civ. Rights Comm., 8th Dist. Cuyahoga No.

99327, 2013-0hio-3730, t 17; Zhelezny v. Olesh, 10th Dist. Franklin No.

12AP-681, 2013-Ohio-4337, 10. We review a trial court’s determination of

subject matter jurisdiction de novo. ABN AMRO Mtge. Group, Inc. at U 5.

{f45} Cirino seeks declaratory and injunctive relief and what he

characterizes as “equitable restitution.” The BWC contends that the restitution

sought by Cirino is actually a claim at law for money damages, i.e., a legal

remedy over which the court of claims has exclusive jurisdiction, and that the

trial court, therefore, erred as a matter of law in determining that it had subject

matter jurisdiction over the case.

{146} R.C. 2743.03 established the court of claims, granting it “exclusive,

original jurisdiction of all civil actions against the state permitted by the waiver

of immunity contained in section 2743.02 of the Revised Code.” R.C.

2743.03(A)(1). Thus, claims seeking legal relief from the state as permitted by

the statutory waiver of immunity fall within the exclusive jurisdiction of the

court of claims. Id.; see also Measles v. Indus. Comm, of Ohio, 128 Ohio St.3d

458, 2011-Ohio-1523, 946 N.E.2d 204, 1 7 (The court of claims “has exclusive

jurisdiction over civil actions against the state for money damages that sound in

law.”), citing R.C. 2743.02 and 2743.03.

{147} R.C. Chapter 2743 does not, however, divest other courts of

jurisdiction “to hear and determine a civil action in which the sole relief that the

claimant seeks against the state is a declaratory judgment, injunctive relief, or

other equitable relief.” Santos v. Ohio Bur. of Workers’ Comp., 101 Ohio St.3d

74, 2004-Ohio-28, 801 N.E.2d 441, 1 9; R.C. 2743.03(A)(2). A suit seeking only

declaratory, injunctive or other equitable relief may be brought against the state

in the court of common pleas. R.C. 2743.03(A)(1). Where claims for damages are

coupled with claims for injunctive, declaratory or other equitable relief, however,

all of the claims are within the exclusive, original jurisdiction of the court of

claims. R.C. 2743.03(A)(2). Thus, whether the trial court has subject matter

jurisdiction in this case turns on whether Cirino’s restitution claim is equitable

or legal in nature. Measles at 1 8.

{^48} Simply because Cirino characterizes the relief he seeks as being

equitable in nature, does not mean it is so. Morning View Care Ctr.-Fulton u.

Ohio Dept, of Job & Family Servs., 10th Dist. Franklin No. 04AP-57, 2004-Ohio-

6073, 1 24 (‘“At times, creative pleading may obscure the conceptual line

between damages for loss sustained and claims for a specific form of relief.”’),

quoting Zelenak v. Indus. Comm., 148 Ohio App.3d 589, 2002-Ohio-3887, 774

N.E.2d 769, 1 15 (10th Dist.). “Regardless of how an action is labeled, the

substance of the party’s arguments and the type of relief requested determine

the nature of the action.” Lingo v. State, 138 Ohio St.3d 427, 2014-0hio-1052, 7

N.E.3d 1188, 38; see also Measles at 1 8 (indicating that the “chief factors” in

deciding whether a restitution claim sounds in equity or in law are “‘the basis for

the plaintiffs claim and the nature of the underlying remedies sought’”), quoting

Christino v. Ohio Bur. of Workers’ Comp., 118 Ohio St.3d 151, 2008-0hio-2013,

886 N.E.2d 857, 1 7.

{f 49} Not every claim for monetary relief constitutes a legal claim for

money damages. Interim HealthCare of Columbus, Inc. v. State Dept, of Adm.

Servs., 10th Dist. Franklin No. 07AP-747, 2008-Ohio-2286, 15-16 (“A specific

remedy, seeking reimbursement of the compensation allegedly denied, is not

transformed into a claim for damages simply because it involves the payment of

money.”). “Even when the relief sought consists of the state’s ultimately paying

money, a cause of action will sound in equity if ‘money damages’ is not the

essence of the claim.” Id. at 115, citing Ohio Academy of Nursing Homes u. Ohio

Dept, of Job & Family Servs., 114 Ohio St.3d 14, 2007-0hio-2620, 867 N.E.2d

400, 1 15.

{150} “Unlike a claim for money damages where a plaintiff recovers

damages to compensate, or substitute, for a suffered loss, equitable remedies are

not substitute remedies, but an attempt to give the plaintiff the very thing to

which it was entitled.” Interim HealthCare at 115, citing Santos, 101 Ohio St.3d

74, 2004-Ohio-28, 801 N.E.2d 441, at 1 14. “If the essence of a claim is * * *

restitution for the state’s unjust enrichment by withholding funds to which a

worker had a statutory right, then the ultimate relief sought is equitable

restitution.” Measles at 1 9, citing Ohio Academy of Nursing Homes at 1 15-19;

see also Morning View Care Ctr. -Fulton at 125 (“When equitable relief is sought,

‘the relief sought is the very thing to which the claimant is entitled under the

statutory provision supporting the claim,’ and the specific remedy ‘is not

transformed into a claim for damages simply because it involves the payment of

money.”), quoting Zelenak, 148 Ohio App.3d 589, 2002-Ohio-3887, 774 N.E.2d

769, at 1 18.

{151} “[A] claim that seeks to require a state agency to pay amounts it

should have paid all along is a claim for equitable relief, not monetary damages.”

Interim HealthCare at 1 17, citing Zelenak at 1 19. If, on the other hand, a

plaintiff “cannot assert title or right to possession of particular property,” but

he or she may, nevertheless, “be able to show just grounds for recovering money

to compensate for some benefit the defendant has received from [the plaintiff],”

the claim, however denominated by the plaintiff, is a treated as a claim for a

legal remedy. Interim HealthCare at ^ 17.

{^[52} Relying on the Ohio Supreme Court’s decision in Santos, 101 Ohio

St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, the BWC maintains that Cirino’s claim

must be regarded as a claim for legal restitution within the exclusive jurisdiction

of the court of claims because it was Chase — and not the BWC — that allegedly

wrongfully withheld part of Cirino’s workers’ compensation benefits and because

the BWC “is not holding, and thus cannot disgorge, funds from any fees Chase

charged.”

{f 53} In Santos, the Ohio Supreme Court considered whether the common

pleas court had subject matter jurisdiction over a restitution claim brought by

injured workers who sought to recover funds the BWC had collected pursuant

to a subrogation statute that was later declared unconstitutional. Santos, 101

Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, at 3-8. The court looked to the

United States Supreme Court’s decision in Great-West Life & Annuity Ins. Co.

u. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002), for “guidance”

in differentiating between restitution claims sounding in law and those sounding

in equity as follows:

Restitution is available as a legal remedy when a plaintiff cannot

‘“assert title or right to possession of particular property, but in

which nevertheless he might be able to show just grounds for

recovering money to pay for some benefit the defendant had received

from him.’” [Great-West at 213], quoting Dobbs, Law of Remedies

Section 4.2(1), 571 (2d Ed. 1993). Restitution is available as an

equitable remedy “where money or property identified as belonging

in good conscience to the plaintiff could clearly be traced to

particular funds or property in the defendant’s possession.” Id.

“Thus, for restitution to lie in equity, the action generally must seek

not to impose personal liability on the defendant, but to restore to

the plaintiff particular funds or property in the defendant’s

possession.” Id. at 214, 122 S.Ct. 708, 151 L.Ed.2d 635.

(Emphasis sic.) Santos at f 13. Because the plaintiffs sought repayment of

specific funds wrongfully collected and held by the state, the court concluded

that their claim sounded in equity and could be heard by the courts of common

pleas. Id. at t 17. As the court explained:

This court held * * * that the workers’ compensation subrogation

statute was unconstitutional. Accordingly, any collection or

retention of moneys collected under the statute by the BWC was

wrongful. The action * * * is not a civil suit for money damages but

rather an action to correct the unjust enrichment of the BWC. A

suit that seeks the return of specific funds wrongfully collected or

held by the state is brought in equity. Thus, a court of common

pleas may properly exercise jurisdiction over the matter as provided

in R.C. 2743.03(A)(2).

Santos at if 17. The Santos court cited its prior decision in Ohio Hosp. Assn. v.

Ohio Dept, of Human Servs., 62 Ohio St.3d 97, 579 N.E.2d 695 (1991), as support

for the proposition that “equitable restitution may include the recovery of funds

wrongfully held by another.” Santos at if 14.

{if54} In Ohio Hosp. Assn., the Ohio Supreme Court held that

reimbursement of Medicaid providers for amounts unlawfully withheld pursuant

to invalid administrative rules improperly promulgated by the Ohio Department

of Human Services was “not an award of money damages, but equitable relief.”

Ohio Hosp. Assn, at 104-105. The court relied on the United States Supreme

Court’s decision in Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101

L.E.2d 749 (1988) (which, in turn, quoted extensively from Maryland Dept, of

Human Resources v. Dept, of Health & Human Servs., 763 F.2d 1441

(D.C.Cir.1985)), explaining its reasoning as follows:

“‘* * * Damages are given to the plaintiff to substitute for a suffered

loss, whereas specific remedies “are not substitute remedies at all,

but attempt to give the plaintiff the very thing to which he was

entitled.” D. Dobbs, Handbook on the Law of Remedies 135 (1973).

Thus, while in many instances an award of money is an award of

damages, “[occasionally a money award is also a specie remedy.”

Id.***

In the present case, Maryland is seeking funds to which a statute

allegedly entitles it, rather than money in compensation for the

losses, whatever they may be, that Maryland will suffer or has

suffered by virtue of the withholding of those funds. If the program

in this case involved in-kind benefits this would be altogether

evident. The fact that in the present case it is money rather than

in-kind benefits that pass from the federal government to the states

(and then, in the form of services, to program beneficiaries) cannot

transform the nature of the relief sought — specific relief, not relief

in the form of damages. * *

* * *

We find this distinction applicable to this suit. The reimbursement

of monies withheld pursuant to an invalid administrative rule is

equitable relief, not money damages, and is consequently not barred

by sovereign immunity.

Ohio Hosp. Assn, at 105, quoting Bowen at 895, quoting Maryland Dept, of

Human Resources at 1446.

{^55} Other cases have similarly recognized that where a state agency

collects money to which it is not entitled or fails to pay amounts it should have

paid, an action to recover those funds is considered a claim for equitable

restitution. See, e.g., Interim HealthCare, 2008-Ohio-2286, at If 17 (“Cases in

which a plaintiff claims a state agency has wrongfully collected certain funds are

characterized generally as claims for equitable restitution.”), citing Morning

View Care Ctr.-Fulton, 2004-0hio-6073, at 1 19; Dunlop v. Ohio Dept, of Job &

Family Servs., 10thDist. FranklinNo. 11AP-929, 2012-Ohio-1378, 13-16 (claim

for reimbursement of child support payments that child support agency allegedly

wrongly collected in excess of child support payments ordered by the common

pleas court was a claim for equitable restitution even though agency thereafter

distributed most of the money collected to the child support obligee, the state

and the federal government); San Allen v. Buehner, 8th Dist. Cuyahoga No.

99786, 2014-0hio-2071 (employers’ claim against the BWC for the return of

portions of workers’ compensation premiums that exceeded the premiums

employers should have been charged was a claim for equitable restitution);

Keller v. Dailey, 124 Ohio App.3d 298, 303-304, 706 N.E.2d 28 (10th Dist. 1997)

(plaintiffs claim for unpaid overtime compensation was an equitable claim

because plaintiff sought “the very thing to which she is allegedly entitled” under

the Fair Labor Standards Act); Henley Health Care v. Ohio Bur. of Workers’

Comp., 10th Dist. Franklin No. 94APE08-1216,1995 OhioApp. LEXIS 715 (Feb.

23, 1995) (healthcare company’s claims, which sought reimbursement of money

withheld pursuant to allegedly invalid rules, were equitable in nature and not

a request for money damages). Compare Measles, 128 Ohio St.3d 458,

2011-Ohio-1523, 946 N.E.2d 204 (injured workers’ restitution claim to recover

funds allegedly wrongfully withheld after the workers applied for, and the BWC

approved, a lump sum advancement of permanent total disability benefits they

had been awarded was a claim for money due under a contract, i.e., an action in

law disputing the effect of the lump sum advancement agreement the workers

had entered into with the state, that must be pursued in the court of claims);

Zelenak, 148 Ohio App.3d 589, 2002-Ohio-3887, 774 N.E.2d 769, at U 24-25

(claim for interest on total temporary disability compensation withheld or

recovered as overpayments but later reimbursed was a claim for monetary

damages over which the common pleas court lacked subject matter jurisdiction).

{f 56} Under the EBT program, rather than deliver benefits directly to

Cirino, the BWC transferred his benefits to Chase for placement on an EBT

debit card and then authorized Chase to charge Cirino certain fees to access

those benefits. The BWC asserts that it “fulfills its statutory duty” by

“transferring [claimants’ benefits] to Chase pursuant to the Chase agreement”

and claims that the fees Chase charges are simply “part of the normal banking

relationship between Chase and its customers,” “unrelated to the distribution of

workers’ compensation benefits,” because they are assessed only if a benefit

recipient chooses to access his or her benefits in certain ways. However, the

BWC’s claims are belied by statute.

{f57} R.C. 4123.67 expressly provides that, except in limited

circumstances not applicable here, workers’ compensation benefits “shall be paid

only to the employees or their dependents.” There is no evidence that Cirino

authorized Chase to receive his workers’ compensation benefits on his behalf and

then distribute them to him only on such terms as were set forth in either the

BWC-Chase agreement or the Chase debit card agreement. Although the BWC’s

enrollment cards for the EBT program included a statement that “[ujnder the

terms of this agreement, deposit of your compensation benefit(s) by BWC or use

of your EBT debit card by you constitutes payment of benefits under the

provisions of Ohio Revised Code section 4123.67,” there is no evidence Cirino

ever completed an enrollment card or otherwise executed an electronic benefit

card agreement, and the BWC readily admits that it issued EBT cards to all

benefit recipients who did not provide bank account information regardless of

whether they completed an enrollment card or executed an electronic benefit

card agreement.

{f 58} Reasoning that “money in an agent’s possession is imputed to its

principal’s possession” and because Cirino’s claim was for “the return of specific

funds wrongfully collected or held by the state,” the trial court held that Cirino’s

restitution claim was brought in equity notwithstanding that he was seeking

reimbursement of fees that were charged and collected by Chase. We agree that

Cirino’s claim is for equitable restitution.

(f 59} The BWC disputes the trial court’s finding that Chase is its “agent”

for the distribution of benefits. However, if Chase were not its agent for that

purpose, given that the BWC is expressly prohibited from paying benefits to

anyone other than “employees or their dependents,” the BWC would appear to

run afoul of not only R.C. 4123.311, which authorized the BWC to “[c]ontract

with an agent” to (1) “[s]upply debit cards for claimants to access payments made

to them” and (2) “[c]redit the debit cards * * * with the amounts specified by the

administrator,” but also R.C. 4123.67. See R.C. 4123.67 (“compensation before

payment shall be exempt from all claims of creditors and from any attachment

or execution, and shall be paid only to the employees or their dependents”).

(Emphasis added.)12

12The BWC contends that Chase could not have been its agent for the

distribution of workers’ compensation benefits because their relationship did not

satisfy the six “requisite factors” for determining whether an agency relationship exists

enumerated by the Ohio Supreme Court in Hanson v. Kynast, 24 Ohio St.3d 171, 484

N.E.2d 1091 (1986). Specifically, the BWC argues that Chase could not be the BWC’s

“agent for the payment of benefits” because (1) Chase is not performing services that

arise in the normal course of the BWC’s business, (2) the BWC “does not compensate

Chase for maintaining claimants’ accounts,” (3) the BWC “does not provide * * * any

tools, offices, branches, or any other material assistance to further the administration

of claimants’ accounts,” (4) Chase “officers its banking services to the public at-large

and does not work exclusively for [the BWC],” (5) the relationship between Chase and

the BWC is governed by contract and there is “no right for immediate termination” and

(6) the BWC had “no right of control over Chase” under the BWC-Chase Agreement.

However, many of the “Hanson factors” identified by the BWC are not relevant to the

{^60} Cirino is seeking the balance of the full workers’ compensation

benefit payments he claims he should have received from the BWC pursuant to

his workers’ compensation award but did not receive due to the manner in which

the BWC distributed workers’ compensation benefits under the EBT program.

Although the remedy Cirino seeks includes monetary relief, it is not monetary

damages as a “substitute” for losses he suffered as a result of the BWC’s

implementation of the EBT program. He seeks to recover the specific funds he

claims were wrongfully withheld from his benefit payments due to the BWC’s

alleged violation of Article II, Section 35 of the Ohio Constitution and R.C.

4123.341 and 4123.67 when distributing benefits under the EBT program, i.e.,

“payment of specific funds of a determined amount to which a statute [and his

workers’ compensation award] entitled [him].” Morning View Care Ctr.-Fulton,

2004-0hio-6073, at f 18. In other words, Cirino has asserted a claim for “the

very thing” to which he was allegedly entitled in the first place — the difference

determination here. Indeed, even in Hanson, the court considered only three

applicable factors in determining whether an agency relationship existed between

Ashland University and one of its lacrosse players while playing in a lacrosse game.

Hanson at 175-176 & fn.5.

Furthermore, the BWC’s argument ignores not only the express language of the

statute but also the fact that there are both general agency relationships and agency

relationships for a limited purpose. See, e.g., Ish u. Crane, 13 Ohio St. 574, 582 (1862)

(“[A]n agency * * * may be either special, general, or universal. It may be to make a

particular contract, to buy or sell certain specified property upon specified terms; or to

buy or sell certain property generally, and the same as to the performance of any

business; or, the agency may be a universal agency — to do, generally, any, and all

business.”). Here, Chase was, in fact, “performing in the course of’ one of the primary

functions of the “business” of the BWC, i.e., getting workers’ compensation benefits into

the hands of benefit recipients. Hanson at 175.

between the full amount of workers’ compensation benefits he should have

received less the benefits he actually received when those benefits were

distributed through the EBT program. See, e.g., Santos, 101 Ohio St.3d 74,

2004-Ohio-28, 801 N.E.2d 441, at f 14; Ohio Hosp. Assn., 62 Ohio St.3d at 105,

579 N.E.2d 695 (1991). As such, Cirino’s claim is one for equitable relief.

{1 61} Accordingly, the trial court did not err in determining that it had

subject matter jurisdiction in this case. We now turn to the BWC’s remaining

arguments against class certification.

Requirements for Class Certification under Civ.R. 23

{162} In its second assignment of error, the BWC also argues that the trial

court erred in certifying the class because the trial court failed to undertake a

“rigorous analysis” of the Civ.R. 23 requirements for class certification. The

BWC challenges the adequacy of Cirino as a class representative under Civ.R.

23(A)(4) and the trial court’s finding that Cirino’s claims were typical of the class

under Civ.R. 23(A)(3). The BWC further argues that the trial court abused its

discretion in certifying a class under Civ.R. 23(B)(2) because plaintiffs seek “a

recovery of money that is individualized as to each class member” and under

Civ.R. 23(B)(3) because “individual issues predominate over common issues.”

Standard of Review as to Class Certification

{163} A trial court has broad discretion in determining whether to certify

a class action, and an appellate court should not disturb that determination

absent an abuse of discretion. Marks v. C.P. Chem. Co., 31 Ohio St.3d 200, 509

N.E.2d 1249 (1987), syllabus. That discretion is not, however, unlimited. It

must be exercised within the framework of Civ.R. 23. Hamilton v. Ohio Sav.

Bank, 82 Ohio St.3d 67, 70, 694 N.E.2d 442 (1998). An abuse of discretion occurs

where the trial court’s decision is unreasonable, arbitrary or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “‘A

determination by a trial court regarding class certification that is clearly outside

the boundaries established by Civ.R. 23, or that suggests that the trial court did

not conduct a rigorous analysis into whether or not the prerequisites of Civ.R.

23 are satisfied, will constitute an abuse of discretion.’” Mozingo v. 2007

Gaslight Ohio, L.L.C., 9thDist. Summit Nos. 26164 and 26172, 2012-Ohio-5157,

1 8, quoting Hill v. Moneytree of Ohio, Inc., 9th Dist. Lorain No. 08CA009410,

2009-Ohio-4614, 1 9.

{164} The application of the abuse of discretion standard to a trial court’s

decision to certify a class “is grounded not in credibility assessment, but in the

trial court’s special expertise and familiarity with case-management problems

and its inherent power to manage its own docket.” Hamilton at 70. “[A]ny

doubts about adequate representation, potential conflicts, or class affiliation

should be resolved in favor of upholding the class, subject to the trial court’s

authority to amend or adjust its certification order as developing circumstances

demand, including the augmentation or substitution of representative parties.”

Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 480,487, 727 N.E.2d

1265 (2000); Gattozzi v. Sheehan, 2016-0hio-5230, 57 N.E.3d 1187, ^ 17 (8th

Dist.).

Requirements for Class Certification under Civ.R. 23

{165} Seven prerequisites must be met before a class may be properly

certified as a class action under Civ.R. 23: (1) an identifiable class must exist and

the definition of the class must be unambiguous; (2) the named plaintiff

representatives must be members of the class; (3) the class must be so numerous

that joinder of all the members is impracticable; (4) there must be questions of

law or fact common to the class; (5) the claims or defenses of the representatives

must be typical of the claims or defenses of the class; (6) the representative

parties must fairly and adequately protect the interests of the class; and (7) one

of the three requirements for certification under Civ.R. 23(B) must be met.

Hamilton at 71, citing Warner v. Waste Mgmt., 36 Ohio St.3d 91, 96, 521 N.E.2d

1091 (1988); Civ.R. 23.

{f 66} The party seeking to maintain a class action “has the burden of

demonstrating that all factual and legal prerequisites to class certification have

been met.” Repede v. Nunes, 8th Dist. Cuyahoga Nos. 87277 and 97469,

2006-0hio-4117, 14, citing Gannon v. Cleveland, 13 Ohio App.3d 334, 335, 469

N.E.2d 1045 (8th Dist. 1984); see also Cullen v. State Farm Mut. Auto. Ins. Co.,

137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, 1 15 (“a party seeking

certification pursuant to Civ.R. 23 bears the burden of demonstrating by a

preponderance of the evidence that the proposed class meets each of the

requirements set forth in the rule”). If the party seeking to certify a class fails

to meet any one of the Civ.R. 23 requirements, class certification must be denied.

“Rigorous Analysis”

{f67} The trial court is required to “carefully apply the class action

requirements” and to conduct a “rigorous analysis” into whether the

prerequisites for class certification under Civ.R. 23 have been satisfied.

Hamilton, 82 Ohio St.3d at 70, 694 N.E.2d 442. This entails “resolv[ing] factual

disputes relative to each [Civ.R. 23] requirement and to find, based on those

determinations, other relevant facts, and the applicable legal standard, that the

requirement is met.” Cullen at f 16. This “rigorous analysis” often requires the

trial court to “look|] into the enmeshed legal and factual issues that are part of

the merits of the plaintiffs underlying claims,” Felix v. Ganley Chevrolet, Inc.,

145 Ohio St.3d 329, 2015-0hio-3430, 49 N.E.2d 1224, 1 26, considering “what

will have to be proved at trial and whether those matters can be presented by

common proof,” Cullen at Tf 17. However, the court may consider the underlying

merits of a plaintiff s claims only to the extent necessary to determine whether

the plaintiff has satisfied the Civ.R. 23 requirements. Felix at f 26; Stammco,

L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-0hio-3019, 994

N.E.2d 408, 1 44. The abuse of discretion standard applies both to the trial

court’s “ultimate decision” regarding class certification as well as its

determination regarding each of the Civ.R. 23 requirements.

68} The BWC contends that the trial court failed to conduct a

sufficiently rigorous analysis of the Civ.R. 23 requirements because it conducted

“no analysis” as to whether Cirino was an adequate class representative and

“determined in a single conclusory sentence” that the requirements of Civ.R.

23(B)(2) were satisfied.

{^[69} Although the BWC asserts that the trial court conducted “no

analysis” as to whether Cirino was an adequate class representative —

mistakenly identifying “adequacy of representation” as one of the Civ.R. 23

requirements the BWC “did not dispute”13 — its judgment entry as to class

certification demonstrates otherwise. In its judgment entry, the trial court

indicates that “Cirino is and was during the class period a claimant who received

a statutory benefit award and who had transaction fees, charges, costs, or

expenses collected or withheld from his workers’ compensation claim payments

under the EBT program” and specifically found that “Cirino’s interests are not

antagonistic to those of other class members.”

70} The trial court’s judgment entry as to class certification reflects a

13There are two components to adequacy of representation — adequacy of the

plaintiff as a representative of the class and the adequacy of class counsel. Although

the BWC challenged the adequacy of plaintiff as a class representative, it did not

challenge the adequacy of plaintiffs’ counsel to represent the class. Accordingly, the

trial court’s statement that the BWC “did not dispute * * * the adequacy of

representation” was partially correct.

careful consideration of the relevant facts, as set forth in the evidentiary

materials submitted by the parties, and the applicable law. The trial court

prepared detailed findings of fact and separately concluded that each of the

seven class action requirements was satisfied. That the trial court did not

simply “rubber stamp” plaintiffs’ request for class certification, but rather,

engaged in its own independent review and analysis, is evidenced by the fact

that it did not certify a class of “[a] 11 current and former participants in the Ohio

Workers’ Compensation system who were assessed fees under authority of the

[BWC-Chase agreement]” as sought by Cirino but instead certified a class of

“[a]ll current and former participants in the Ohio Workers’ Compensation

system who were assessed unreasonable fees under authority of the [BWC-Chase

agreement].” (Emphasis added.)

{f 71} While the court’s discussion of certain of the Civ.R. 23 requirements

was more extensive than others (and although it would have facilitated our

review if the trial court had explained the reasoning underlying its conclusion

that “Cirino’s action does satisfy the requirements for class certification

pursuant to Civ.R. 23(B)(2)”), we cannot say that its analysis was not sufficiently

rigorous. Hamilton, 82 Ohio St.3d at 70-71, 694 N.E.2d 442 (indicating that

although it is the preferred course, there is no requirement under Civ.R. 23 that

a trial court make findings on each of the seven requirements for class

certification or that it articulate its reasoning for such findings as part of its

rigorous analysis). Accordingly, the trial court did not abuse its discretion by

failing to conduct a sufficiently rigorous analysis of the Civ.R. 23 requirements.

{^[72} Apart from its general complaint that the trial court failed to

conduct a “rigorous analysis” of the Civ.R. 23 requirements, the BWC challenges

only the adequacy of Cirino as the class representative under Civ.R. 23(A)(4),

typicality under Civ.R. 23(A)(3) and the trial court’s determination that class

treatment was appropriate under Civ.R. 23(B)(2) and 23(B)(3). Accordingly, we

address only those requirements here.

Civ.R. 23(A) Requirements

Adequate Class Representative

{f73} Under Civ.R. 23(A)(4), a class representative must “fairly and

adequately protect the interests of the class.” A representative is deemed

adequate so long as his or her interests are not antagonistic to that of other class

members. Hamilton at 77-78; Marks, 31 Ohio St.3d at 203, 509 N.E.2d 1249;

Warner, 36 Ohio St.3d at 98, 521 N.E.2d 1091.

{^74} The BWC contends that Cirino’s interests are antagonistic to those

of other class members because Cirino testified during his deposition that he

understood the lawsuit as involving only the $5 teller transaction fee that he had

been charged to access his benefits and that he was representing only other EBT

program participants who had also been charged this fee.

{f 75} Based on Cirino’s failure to fully comprehend the full extent of the

claims of the class, the BWC argues that there is a “danger” Cirino would not

adequately represent class members who were charged other fees to access their

workers’ compensation benefits and that the trial court, therefore, abused its

discretion in concluding that Cirino was an adequate class representative. We

disagree. There is nothing in the record to suggest that Cirino’s interests are

antagonistic to the interests of other class members or that there is any conflict

between him and any other class members. Cirino — just like the other class

members — was allegedly denied the full amount of workers’ compensation

benefits to which he was entitled following the BWC’s implementation of its

mandatory EBT program. Simply because Cirino was only assessed one type of

fee does not render his interests antagonistic to those of other class members

who may have been charged additional or different fees under the EBT program.

Cirino and the other class members could all recover the benefits they claim are

due without impairing each others’ interests. Thus, Cirino’s interests are

aligned with — rather than antagonistic to — those of the other class members.

Cirino’s lack of knowledge or understanding regarding the details of the claims

asserted by the class does not render him an inadequate class representative.

See, e.g., LaBorde v. Gahanna, 10th Dist. Franklin Nos. 14AP-764 and

14AP-806, 2015-0hio-2047,143-44 (plaintiffs’ “unfamiliarity with the details of

the lawsuit and minimal involvement” did not preclude a finding that their

interests were aligned with those of the class). Accordingly, the trial court did

not abuse its discretion in finding that Cirino is an adequate class

representative.

Typicality

{176} Under Civ. R. 23(A)(3), the claims or defenses of the representative

must be “typical” of the “claims or defenses” of the class sought to be certified.

The BWC argues that Cirino is atypical because he was charged only one

particular type of fee and continued to incur fees by accessing his benefits

through bi-monthly teller transactions even after he knew he was allowed only

one free teller transaction each month. The BWC also asserts that Cirino’s

claims are not typical because he, presumably unlike many class members, has

an existing bank account into which his workers’ compensation benefits could

have been directly deposited via EFT. Thus, he could have chosen to participate

in the EFT program, avoiding any fees under the EBT program. As such, the

BWC argues he is “uniquely susceptible” to mitigation and voluntary payment

defenses.

{1f77} “[T]he requirement of typicality serves the purpose of protecting

absent class members and promoting the economy of class action by ensuring

that the interests of the named plaintiffs are substantially aligned with those of

the class.” Baughman, 88 Ohio St.3d at 484, 727 N.E.2d 1265, citing 5 Moore’s

Federal Practice, Section 23.24[1], at 23-92 to 23-93. “Typical” does not mean

“identical.” Baughman at 484. A plaintiffs claim is typical ‘“if it arises from the

same event or practice or course of conduct that gives rise to the claims of other

class members, and if his or her claims are based on the same legal theory.”’ Id.

at 485, quoting 1 Newberg on Class Actions, Section 3.13, 3-74 to 3-77 (3d

Ed. 1992). “‘When it is alleged that the same unlawful conduct was directed at

or affected both the named plaintiff and the class sought to be represented, the

typicality requirement is usually met irrespective of varying fact patterns which

underlie individual claims.’” Baughman at 485, quoting 1 Newberg on Class

Actions, Section 3.13, at 3-74 to 3-77. This test is “not demanding,” Westgate

Ford Truck Sales, Inc. v. Ford Motor Co., 8th Dist. Cuyahoga No. 86596,

2007-0hio-4013, t 55, and is based on the rationale that “a plaintiff with typical

claims will pursue his or her own self-interest in the litigation and in so doing

will advance the interests of the class members, which are aligned with those of

the representative.” Baughman at 485, quoting 1 Newberg on Class Actions,

Section 3.13, 3-74 to 3-77. The typicality requirement is met where “there is no

express conflict between the class representatives and the class.” Gattozzi,

2016-0hio-5230, at f 39, citing Hamilton, 82 Ohio St.3d at 77, 694 N.E.2d 442.

{^78} In this case, we find no abuse of discretion by the trial court in

concluding that the typicality requirement was met. Cirino claims that he did

not receive the full amount of the workers’ compensation benefits to which he

was entitled because he was assessed service fees by Chase to access his benefits

under the EBT program. This same conduct gives rise to the claims of the other

class members, and their claims are based on the same legal theory, i.e., that the

BWC’s distribution of benefits through the EBT program violates Article II,

Section 35 of the Ohio Constitution and R.C. 4123.341 and 4123.67. Although

Cirino was assessed only one of the categories of fees charged to benefit

recipients participating in the EBT program, the class claims are not limited to

a particular type of fee paid by class members; rather, the complaint challenges

the practice of charging benefit recipients any fees to access their benefits under

the EBT program and the class, as defined by the trial court, includes “[a] 11

current and former participants in the Ohio Workers’ Compensation system who

were assessed unreasonable fees under authority of the [BWC-Chase

agreement].” Likewise, to the extent the BWC contends Cirino continued to

“knowingly” pay to access his benefits after he learned of the fees, this does not

make his claims atypical. Presumably other class members “knowingly” paid

fees to access their benefits as well. BWC and Chase representatives testified

that all benefit recipients were given disclosure statements from Chase that

identified the fees benefit recipients would be charged to access their benefits in

various ways and were provided monthly statements (as required under the

BWC-Chase agreement) that detailed the balances of, and distributions from,

their accounts, including any fees assessed.

{1f79} Furthermore, even “a unique defense will not destroy typicality or

adequacy of representation unless it is ‘so central to the litigation that it

threatens to preoccupy the class representative to the detriment of the other

class members.’” Hamilton at 78, quoting 5 Moore’s Federal Practice, Section

23.25[4][b][iv], at 23-126, Section 23.24[6], at 23-98; see also Baughman at 486,

727 N.E.2d 1265 (“‘[DJefenses asserted against a class representative should not

make his or her claims atypical. Defenses may affect the individual’s ultimate

right to recover, but they do not affect the presentation of the case on the

liability issues for the plaintiff class.’”), quoting 1 Newberg on Class Actions,

Section 3.16, at 3-90 to 3-93. This is not that case. As discussed in greater detail

infra, the BWC contends that there were ways in which benefit recipients could

have “avoided all fees” and still gained timely access to their benefits. Thus,

even assuming the BWC’s voluntary payment or mitigation defenses applied,

they would not render Cirino’s claims “atypical” of the class.

{^80} Accordingly, the trial court did not abuse its discretion when it

found that Cirino’s claims were typical of the claims of the class.

Certification under Civ.R. 23(B)(2)

{f 81} Under Civil Rule 23(B)(2), an action may be maintained as a class

action if “the party opposing the class has acted or refused to act on grounds that

aPPly generally to the class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a whole.” Thus, “Civ.R.

23(B)(2) has, as its primary application, a suit seeking injunctive relief.”

Warner, 36 Ohio St.3d at 95, 521 N.E.2d 1091. To be properly certified under

Civ.R. 23(B)(2), the class (1) must seek “primarily injunctive relief’ and (2) must

be “cohesive.” Wilson v. Brush Wellman, Inc., 103 Ohio St.3d 538, 2004-Ohio-

5847, 817 N.E.2d 59, 1 13.

{f82} “‘The key to the (b)(2) class is “the indivisible nature of the

injunctive or declaratory remedy warranted—the notion that the conduct is such

that it can be enjoined or declared unlawful only as to all of the class members

or as to none of them.’”” (Emphasis omitted.) Cullen, 137 Ohio St.3d 373,

2013-Ohio-4733, 999 N.E.2d 614, at f 25, quoting Wal-Mart Stores Inc. v. Dukes,

564 U.S. 338, 360, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), quoting Nagareda,

Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L.Rev. 97,132 (2009).

Thus, Civ.R. 23(B)(2)

“applies only when a single injunction or declaratory judgment

would provide relief to each member of the class. It does not

authorize class certification when each individual class member

would be entitled to a different injunction or declaratory judgment

against the defendant. Similarly, it does not authorize class

certification when each class member would be entitled to an

individualized award of monetary damages.”

(Emphasis sic.) Cullen at Tf 21, quoting Wal-Mart at 360-361. “Claims for

individualized relief are not compatible with Civ.R. 23(B)(2), because the relief

sought must affect the entire class at once.” Cullen at ^ 21, citing Wal-Mart at

360-361.

{f 83} In this case, the BWC does not dispute that the conduct at issue is

such that it could ““‘be enjoined or declared unlawful as to all of the class

members or to none of them.’”” Cullen at 125, quoting Wal-Mart at 360, quoting

Nagareda, 84 N.Y.U.L.Rev. at 132. The BWC likewise does not dispute that “a

single injunction or declaratory judgment would provide relief to each member

of the class.” Cullen at t 21, quoting Wal-Mart at 360-361. Accordingly, we do

not address those issues here.

{f 84} Nevertheless, based on the United States Supreme Court’s decision

in Wal-Mart, the BWC contends that the trial court’s certification of the class

under Civ.R. 23(B)(2) was improper because each class member would require

an “individualized damages assessment and award.” The BWC maintains that

the total fees charged to each class member would need to be “individually

calculated” based on each member’s “individual conduct in using certain Chase

services” and that the court would then need to determine whether “such

damages were reduced” by one or more of the BWC’s defenses. The BWC further

argues, based on the Ohio Supreme Court’s decision in Cullen, that even Cirino’s

“separate claims for declaratory and injunctive relief’ fail the requirements for

class certification under Civ.R. 23(B)(2) because a judgment on those claims

“would merely lay a foundation for subsequent determinations regarding

liability or * * * facilitate an award of damages” rather than awarding “final”

relief. Cullen at paragraph four of the syllabus.

85} In Wal-Mart, employees of Wal-Mart Stores, Inc. (“Wal-Mart”) filed

a class action lawsuit against their employer alleging sex discrimination in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-l et seq.

based upon the discretion Wal-Mart gave local managers over pay and

promotions, which the employees claimed was exercised disproportionately in

favor of men. Wal-Mart, 564 U.S. at 338, 131 S.Ct. 2541, 180 L.Ed.2d 374. The

United States Supreme Court held that the employees’ class could not be

certified because the action did not satisfy the commonality requirement under

Fed.R.Civ.P. 23(a)(2). The Court also rejected the employees’ argument that

their claims for backpay were properly certified under Fed.R.Civ.P. 23(b)(2)

because those claims did not “predominate” over their requests for injunctive

and declaratory relief, holding that claims for monetary relief could not be

certified under that provision “at least where * * * the monetary relief is not

incidental to the injunctive or declaratory relief.” Id. at 361. The Court noted

that “Title VII includes a detailed remedial scheme” pursuant to which Wal-

Mart was entitled to “individualized determinations of each employee’s eligibility

for backpay” and that the “necessity” of litigating Wal-Mart’s defenses prevented

backpay from being “incidental” to a classwide injunction. Id. at 366-367.

W6} The Court’s decision was based on due process concerns in

adjudicating claims for monetary relief, given that members of a Fed.R.Civ.P.

23(b)(2) are not entitled to the notice and opt-out protections afforded a class

certified under Fed.R.Civ.P. 23(b)(3). Id. at 362-363. As the Court explained:

The procedural protections attending the (b)(3) class —

predominance, superiority, mandatory notice, and the right to opt

out—are missing from (b)(2) not because the Rule considers them

unnecessary, but because it considers them unnecessary to a (b)(2)

class. When a class seeks an indivisible injunction benefiting all its

members at once, there is no reason to undertake a case-specific

inquiry into whether class issues predominate or whether class

action is a superior method of adjudicating the dispute.

Predominance and superiority are self-evident. But with respect to

each class member’s individualized claim for money, that is not

so—which is precisely why (b)(3) requires the judge to make

findings about predominance and superiority before allowing the

class. Similarly, (b)(2) does not require that class members be given

notice and opt-out rights, presumably because it is thought (rightly

or wrongly) that notice has no purpose when the class is mandatory,

and that depriving people of their right to sue in this manner

complies with the Due Process Clause. In the context of a class

action predominantly for money damages we have held that absence

of notice and opt-out violates due process. See Phillips Petroleum

Co. v. Shutts, 472 U.S. 797, 812, 105 S.Ct. 2965, 86 L.Ed.2d 628

(1985). While we have never held that to be so where the monetary

claims do not predominate, the serious possibility that it may be so

provides an additional reason not to read Rule 23(b)(2) to include

the monetary claims here. * * *

Respondents’ predominance test, moreover, creates perverse

incentives for class representatives to place at risk potentially valid

claims for monetary relief. In this case, for example, the named

plaintiffs declined to include employees’ claims for compensatory

damages in their complaint. That strategy of including only

backpay claims made it more likely that monetary relief would not

“predominate.” But it also created the possibility (if the

predominance test were correct) that individual class members’

compensatory-damages claims would be precluded by litigation they

had no power to hold themselves apart from. If it were determined,

for example, that a particular class member is not entitled to

backpay because her denial of increased pay or a promotion was not

the product of discrimination, that employee might be collaterally

estopped from independently seeking compensatory damages based

on that same denial. That possibility underscores the need for

plaintiffs with individual monetary claims to decide for themselves

whether to tie their fates to the class representatives’ or go it alone

— a choice Rule 23(b)(2) does not ensure that they have.

Id. at 362-364. The Court also noted that under the employees’ proposed

“predominance test,” the trial court would have to continuously update the roster

of class members to exclude those who leave employment and become ineligible

for class wide injunctive or declaratory relief because those no longer employed

by Wal-Mart would lack standing to seek injunctive or declaratory relief against

its employment practices. Id. at 364-365.

{f 87} The Court declined to decide in Wal-Mart “whether there are any

forms of * * * monetary relief’ that are “incidental” to requested injunctive or

declaratory relief, i.e., “‘damages that flow directly from liability to the class as

a whole on the claims forming the basis of the injunctive or declaratory relief,”’

that could be properly certified under Fed.R.Civ.P. 23(b)(2). Id. at 365-366,

quoting Allison u. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir.1998).

{^88} In Cullen, the Ohio Supreme Court reversed a trial court’s

certification of a class of State Farm automobile policyholders under Civ.R.

23(B)(2). The plaintiff asserted claims of breach of contract, bad faith and

breach of fiduciary duty against State Farm and requested class certification,

alleging that State Farm’s practice of encouraging policyholders to repair

damaged windshields rather than replace them breached the terms of State

Farm’s insurance contracts with the policyholders and its obligations as a

fiduciary under Ohio law. Cullen, 137 Ohio St.3d 373, 2013-Ohio-4733, 999

N.E.2d 614, at ^ 5. The plaintiff sought compensatory and punitive damages as

well as a declaration that “State Farm’s practices * * * are illegal and/or violative

of the terms of the standard policies and the obligations owed by fiduciaries

under Ohio law” and “establishing the damages and remedies that are due

them.” Id. at 5, 24.

{f 89} The court stated that “‘where injunctive relief is merely incidental

to the primary claim for money damages, Civ.R. 23(B)(2) certification is

inappropriate,’” id. at 22, quoting Wilson, 103 Ohio St.3d 538, 2004-Ohio-5847,

817 N.E.2d 59, at f 17, and held that certification of the class under Civ.R.

23(B)(2) was improper because the plaintiff had failed to demonstrate that all

class members would benefit from the declaratory relief sought given that a

number of the class members were no longer State Farm policyholders. Cullen

at 24-25. Similar to the Court in Wal-Mart, it did not decide whether Civ.R.

23(B)(2) “allow[s] certification when the monetary damages are only incidental

to the declaratory relief’ because it concluded that “[e]ven if Civ.R. 23(B)(2) did

allow certification when the monetary damages are only incidental to the

declaratory relief sought,” damages were “the primary relief sought.” Cullen at

27. The court further held that the plaintiffs request for a declaration that

“State Farm’s practices are illegal and violated fiduciary obligations” “merely

lays a foundation for a subsequent individual determination of liability” and,

therefore, did not satisfy the requirements for class certification under Civ.R.

23(B)(2). Id. at 28.

{f 90} In so holding, the Cullen court distinguished its prior decision in

Hamilton as follows:

[In Hamilton], the class sought to enjoin the practice of

overcharging interest and misamortizing loans. We concluded that

without injunctive or declaratory relief, the class would not be able

to recover for ongoing injuries caused to each class member by

continuing practices. In contrast, the proposed Cullen class seeks

a declaration “establishing that State Farm’s practices as herein

described are illegal and/or violative of the terms of the standard

policies and the obligations owed by fiduciaries under Ohio law,” as

well as one “establishing the damages and remedies that are due to

them.” This does not allege that any ongoing practice continues to

injure all class members, some of whom, like Cullen himself, are no

longer State Farm policyholders and could not be injured by future

actions taken by State Farm. And for any current policyholders to

be harmed by this practice, they necessarily would have to suffer

another damaged windshield that State Farm repaired rather than

replaced.

Cullen at If 24. Thus, Cullen recognized that where an “ongoing practice

continues to injure all class members,” certification under Civ.R. 23(B)(2) may

be appropriate. Id.

{^[91} In Hamilton, the plaintiffs sought class certification in an action

against a bank challenging the bank’s method of calculating interest on

residential mortgage loans. Hamilton, 82 Ohio St.3d at 67-68, 694 N.E.2d 442.

The court addressed the certification of four subclasses of borrowers — two of

which encompassed borrowers whose loans had been retired and two of which

had loans that were still outstanding. Id. at 72, 86-87. The court held that the

trial court’s denial of class certification to the two subclasses of borrowers with

outstanding loans under Civ.R. 23(B)(2) was an abuse of discretion, rejecting the

bank’s argument that the primary relief sought by those subclasses was money

damages. The court explained:

Their primary object is to terminate [the bank’s] alleged practice of

overcharging interest and/or misamortizing its loans. Without such

relief, they would achieve only the recoupment of overpaid interest

to date. The fact that money damages are also sought in addition to

injunctive relief does not defeat certification under Civ.R. 23(B)(2).

Id. at 86-87.

{^[92} The injunctive and declaratory relief sought in this case falls

squarely within Civ.R. 23(B)(2). The relief sought relates to actions by the BWC

“on grounds generally applicable to the class,” seeks to resolve the legality of

that conduct as to all class members and would “affect the entire class at once.”

Civ.R. 23(B)(2); Cullen at 1 21.

{f 93} Unlike in Cullen, the conduct at issue involves “ongoing” benefits

payment practices that continue to affect all class members, i.e., the continued

withholding of portions of class members’ workers’ compensation benefits that

were assessed as fees. As such, this case is more in line with Hamilton. The

relief sought would not merely “lay a foundation for subsequent individual

determinations of liability,” it would in and of itself determine liability.

Accordingly, we cannot say that the trial court abused its discretion in certifying

the plaintiffs’ claims for injunctive and declaratory relief under Civ.R. 23(B)(2).

{f 94} With respect to plaintiffs’ claims for monetary relief, Ohio courts,

both prior to and since Cullen, have recognized that the fact that monetary relief

is sought in addition to declaratory or injunctive relief does not, in and of itself,

defeat certification under Civ.R. 23(B)(2). See, e.g., Hamilton at 86-87; Gattozzi,

2016-0hio-5230, at f 50-61 (where plaintiffs sought a declaration that the

county’s practice of retaining interest earned on funds when it releases the funds

to the owner is unconstitutional and injunctive relief to prevent the county from

retaining interest on funds when it releases the funds to the owner, the fact that

money damages were sought in addition to declaratory and injunctive relief did

not defeat class certification under Civ.R. 23(B)(2)); Barrow v. New Miami, 12th

Dist. Butler No. CA2-15-03-043, 2016-0hio-340, 39-41 (trial court did not

abuse its discretion in certifying two subclasses under Civ.R. 23(B)(2)

challenging the constitutionality of ordinance establishing automated speed

enforcement program notwithstanding that one of the subclasses sought

restitution of penalties and fines paid under the program where the “primary

objective” was to halt operation of the allegedly unconstitutional ordinance and

a “single declaration” that ordinance is unconstitutional and a “single injunction”

prohibiting its enforcement “would provide relief to all members of both

subclasses”); see also Gordon v. Erie Islands Resort & Marina, 6th Dist. Ottawa

No. OT-15-035, 2016-0hio-7107, 1 55 (“A demand for monetary damages does

not necessarily defeat certification under Civ.R. 23(B)(2).”). As the Ohio

Supreme Court explained in Hamilton:

“Disputes over whether the action is primarily for injunctive or

declaratory relief rather than a monetary award neither promote

the disposition of the case on the merits nor represent a useful

expenditure of energy. Therefore, they should be avoided. If the

Rule 23(A) prerequisites have been met and injunctive or

declaratory relief has been requested, the action usually should be

allowed to proceed under subdivision (B)(2). Those aspects of the

case not falling within Rule 23(B)(2) should be treated as incidental.

Indeed, quite commonly they will fall within Rule 23(B)(1) or Rule

23(B)(3) and may be heard on a class basis under one of those

subdivisions. Even when this is not the case, the action should not

be dismissed. The court has the power under subdivision (C)(4)(a),

which permits an action to be brought under ‘with respect to

particular issues,’ to confine the class action aspects of a case to

those issues pertaining to the injunction and to allow damage issues

to be tried separately.”

Hamilton at 87, quoting Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice and Procedure, Section 1775, 470 (2d Ed. 1986).

{195} The BWC contends that the trial court improperly “lumped all of the

Chase fees together and failed to analyze how the ten fees could be distinguished

based on the type of transaction or service a claimant used,” asserting that seven

of the categories of fees charged under the original BWC-Chase agreement

related to benefit recipients’ “volitional use of account services entirely unrelated

to accessing their benefits.” The BWC, however, ignores the fact that, in

certifying the class, the trial court defined the class to include only those benefit

recipients who were charged “unreasonable” fees under the BWC-Chase

agreement. Neither party objected to or raised any error related to the trial

court’s definition of the class. What matters for purposes of plaintiffs’ claims is

the fact that “unreasonable” fees were withheld from their benefit payments not

which “unreasonable” fees were withheld. Once it is determined who is properly

within the class, i.e., which benefit recipients were assessed “unreasonable” fees

under the BWC-Chase agreement, determining what fees were withheld from

class members’ benefit payments and the amount of those fees would be easily

ascertainable from Chase’s records. Further, as discussed in detail infra, we do

not agree that individualized assessments of the BWC’s defenses will be

necessary to determine the amount of restitution properly awarded class

members, if any.

{^96} In this case, the monetary relief requested, i.e., restitution of the

amounts allegedly improperly withheld from the benefit payments due benefit

recipients, flows directly and naturally from the injunctive and declaratory relief

requested. As such, it could reasonably be said that the monetary relief

requested is “incidental” to the requested injunctive and declaratory relief. See

Wal-Mart, 564 U.S. at 365-366, 131 S.Ct. 2541, 180 L.Ed.2d 374.

{f 97} However, different class claims may be certified under different

provisions of Civ.R. 23(B). See, e.g., Hamilton at 87; see also Civ.R. 23(C)(4)

(“When appropriate, an action may be brought or maintained as a class action

with respect to particular issues.”). Following the suggestion of the court in

Hamilton that “[djisputes over whether the action is primarily for injunctive or

declaratory relief rather than a monetary award * * * should be avoided” where

possible, Hamilton at 87, we need not decide whether plaintiffs’ restitution claim

was properly certified under Civ.R. 23(B)(2) as “incidental” to plaintiffs’ claims

for injunctive and declaratory relief because, for the reasons set forth below, we

find that the trial court did not abuse its discretion in certifying the restitution

claim under Civ.R. 23(B)(3). Hamilton at 87; see also Barrow, 2016-0hio-340,

Tf 42 (noting that even if “prayer for damages” could not be properly certified

under Civ.R. 23(B)(2), there was no abuse of discretion in the trial court’s

“alternate path supporting certification under Civ.R. 23(B)(3)”); Gordon,

2016-0hio-7107, at f 62 (finding no abuse of discretion by the trial court in

finding that case was certifiable under Civ.R. 23(B)(2) or 23(B)(3)).14

Certification under Civ.R. 23(B)(3)

(if 98} For a class action to be certified under Civ.R. 23(B)(3), the trial

court must making two findings: (1) that “the questions of law or fact common

to class members predominate over any questions affecting only individual

members” and (2) that “a class action is superior to other available methods for

fairly and efficiently adjudicating the controversy.”

{^[99} A “key purpose” of the predominance requirement “is to test

whether the proposed class is sufficiently cohesive to warrant adjudication by

l4In this case, the trial court ordered, as part of its judgment entry as to class

certification, that class members be given notice and an opportunity to opt out of the

class. Where, as here, class claims for monetary relief could potentially be certified

under either Civ.R. 23(B)(2) or 23(B)(3), we believe that is the preferred course. By

certifying plaintiffs’ claims for monetary relief under Civ.R. 23(B)(3) and providing

class notice and an opportunity to opt out, as the trial court has done here, the trial

court avoids the due process concerns raised by the Court in Wal-Mart that could arise

when certifying a class under Civ.R. 23(B)(2) that seeks monetary relief. See Wal-

Mart, 564 U.S. at 362-363, 131 S.Ct. 2541, 180 L.Ed.2d 374.

representation.” Felix, 145 Ohio St.3d 329, 2015-0hio-3430, 49 N.E.3d 1224, at

35, citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231,

138 L.Ed.2d 689 (1997). “‘For common questions of law or fact to predominate

it is not sufficient that such questions merely exist; rather, they must represent

a significant aspect of the case.’” Cullen, 137 Ohio St.3d 373, 2013-Ohio-4733,

999 N.E.2d 614, at ^ 30, quoting Marks, 31 Ohio St.3d at 204, 509 N.E.2d 1249.

They must also be “‘capable of resolution for all members in a single

adjudication.’” Cullen at 1 30, quoting Marks at 204.

100} It is not sufficient for class certification under Civ.R. 23(B)(3) that

the allegations of the complaint merely raise “a colorable claim.” Cullen at 1 34.

The plaintiff must demonstrate and the trial court must find that “questions

common to the class in fact predominate over individual ones.” (Emphasis sic.)

Id. “‘To meet the predominance requirement, a plaintiff must establish that

issues subject to generalized proof and applicable to the class as a whole

predominate over those issues that are subject to only individualized proof.’” Id.

at Tf 30, quoting Randleman v. Fidelity Natl. Title Ins. Co., 646 F.3d 347, 352-353

(6th Cir.2011).

{f 101} With respect to the superiority requirement, the determination of

whether a class action is the superior method of adjudication “requires a

comparative evaluation of other available procedures to determine if the judicial

time and energy involved would be justified.” Marks at 204.

{<lfl02} Civ.R. 23(B)(3) sets forth a list of factors “pertinent” to the

predominance and superiority findings required under Civ.R. 23(B)(3): (1) “the

class members’ interests in individually controlling the prosecution or defense

of separate actions”; (2) “the extent and nature of any litigation concerning the

controversy already begun by or against class members”; (3) “the desirability or

undesirability of concentrating the litigation of the claims in the particular

forum” and (4) “the likely difficulties in managing a class action.” This list,

however, is not exhaustive; other relevant factors may also be considered. State

ex rel. Davis v. Pub. Emps. Ret. Bd., Ill Ohio St.3d 118, 2006-Ohio-5339, 855

N.E.2d 444, 28. The purpose of class certification under Civ.R. 23(B)(3) is to

enable “‘numerous persons who have small claims that might not be worth

litigating in individual actions to combine their resources and bring an action to

vindicate their collective rights.’” Hamilton, 82 Ohio St.3d at 80, quoting Wright

et al., Federal Practice and Procedure, Section 1777, at 518.

{f 103} Considering the four factors under Civ.R. 23(B)(3)(a)-(d) and the

purpose of class certification under Civ.R. 23(B)(3), the trial court found that the

predominance and superiority requirements had been met because benefit

recipients received “form letter communications” from the BWC regarding “the

new payment system that was being universally applied to all workers’

compensation claimants,” individual class members were unlikely to litigate

their claims separately due to the small potential recovery for each claimant and

a single adjudication of the lawfulness of the BWC’s actions would resolve the

issue for the entire class “preserving adjudicative efficiency.” With respect to the

BWC’s claimed defenses, the trial court concluded that they did not apply

because Cirino and the plaintiff class seek “the unpaid balance of owed benefits

* * * rather than damages.” The trial court further held that “there is nothing

to suggest that Cirino alone would face a mitigation defense.”

{1104} The BWC contends that the trial court’s conclusion that its

defenses do not apply is “unsupportable” because (1) it paid “full benefit

amounts” into each class member’s debit card account with Chase and (2) “did

not have control over the fees collected.” We considered and rejected similar

arguments when considering the BWC’s claim that the trial court lacked subject

matter jurisdiction. As stated above, the BWC’s obligation under R.C. 4123.54

et seq. and R.C. 4123.67 was to make benefit payments to the benefit recipients;

it was not to transfer benefit payments to Chase that Chase then deposited into

accounts Chase held for the individual benefit recipients. Although R.C.

4123:311 authorized the BWC to “[cjontract with an agent” to “[sjupply debit

cards for claimants to access payments made to them” and “[cjredit the debit

cards * * * with the amounts specified by the administrator,” it did not negate

the BWC’s obligation to put benefit payments into the hands of the benefit

recipients. Further, although the BWC may not have had control over the fees

Chase chose to collect from benefit recipients, e.g., the BWC did not have control

over Chase’s decision whether, in certain circumstances, to waive certain fees (as

Chase did the first time Cirino accessed his benefit payments through a second

monthly teller transaction), it is undisputed that Chase negotiated and

authorized, as part of the BWC-Chase agreement, the fees Chase was permitted

to charge benefit recipients to access their workers’ compensation benefits under

the EBT program and that every fee Chase charged a benefit recipient was in

accordance with the fee schedule approved by the BWC. Thus, the BWC

arguably had “control over” the fees charged benefit recipients to access their

benefits under the EBT program.

{f 105} The BWC also argues that certification was improper because the

BWC’s “voluntary payment” and “benefits” defenses require an “individualized

inquiry” that the trial court ignored and because “class-wide proof cannot

establish an injury in fact to all class members.”

{f 106} Under the “voluntary payment doctrine,” “‘[m]oney voluntarily

paid on a claim of right with full knowledge of all the facts, in the absence of

fraud, duress, or compulsion, cannot be recovered back merely because the party,

at the time of payment, was ignorant of, or mistook, the law as to his liability.’”

Consol. Mgmt. v. HandeeMarts, 109 Ohio App.3d 185,189,671 N.E.2d 1304 (8th

Dist.1996), quoting 73 Ohio Jurisprudence 3d 74 (1986); see also Meeker R&D,

Inc. v. Evenflo Co., 2016-Ohio-2688, 52 N.E.3d 1207, 1 75 (11th Dist.) (‘“In the

absence of fraud, duress, compulsion or mistake of fact, money voluntarily paid

by one person to another on a claim of right to such payment, cannot be

recovered merely because the person who made the payment mistook the law as

to his liability to pay.’”), quoting State ex rel. Dickman v. Defenbacher, 151 Ohio

St. 391, 392, 86 N.E.2d 5 (1949). A mistake of law occurs when a person, having

full knowledge of the facts, reaches an erroneous conclusion regarding their legal

effect. Consol. Mgmt. at 189. The BWC contends that if a class member

“voluntarily accepted” a fee charged to access his or her benefits under the EBT

program, he or she would be precluded under the voluntary payment doctrine

from recovering that fee, requiring an “individualized analysis” of its voluntary

payment defense as to each class member.

{11107} The BWC also asserts that class members derived certain

“benefits” in exchange for the fees assessed under the EBT program — such as

the convenience of accessing benefits from nonChase/nonAllpoint ATMs, alleged

loss and fraud protection, benefits derived from inactivity fees, the alleged

facilitation of foreign purchases through from foreign transactions fees and the

avoidance of costly check-cashing fees — that must be offset against the fees

class members were charged in determining the amount of any recovery. The

BWC contends that the “benefits rule” must be applied to each fee Chase

charged each class member and that minitrials would be required to determine

the benefits each class member received for each fee paid at the time it was paid.

{1(108} The “benefits rule” upon which the BWC relies is set forth at 4

Restatement of the Law 2d, Torts, Section 920 (1979). It provides: “When the

defendant’s tortious conduct has caused harm to the plaintiff or to his property

and in so doing has conferred a special benefit to the interest of the plaintiff that

was harmed, the value of the benefit conferred is considered in mitigation of

damages, to the extent that this is equitable.” As the court explained in Cline

v. Am. Aggregates Corp., 640hioApp.3d 503, 507, 582N.E.2d 1 (10th Dist.1989):

The benefits rule is intended to place an injured party as nearly as

possible in the position he would have occupied had it not been for

the tortious conduct of another. Thus, this principle is intended to

restrict an injured person’s recovery to the harm he actually

incurred, and not to permit the tortfeasor to force a benefit on him

against his will. [Restatement of the Law 2d, Torts, Section 920,

509 at Comment f.] Under the benefits rule, to justify a reduction

or setoff in damages, the benefit to the injured party must result

from the tortious conduct. Id. at Comment d.

{f 109} As to its injury-in-fact argument, the BWC asserts that “to the

extent that the value of the benefits conferred by [the EBT program] to an

individual claimant, exceeds any costs incurred by that claimant, there can be

no injury in fact” and that determining whether a particular class member

suffered an injury in fact, will require an individualized inquiry.

{f 110} Based on the authority cited by the BWC, we have serious doubts

as to whether its tort and damages-related defenses would even apply to

plaintiffs’ claims. However, we need not decide, at this juncture, whether the

BWC’s defenses apply because even assuming one or more of the BWC’s defenses

applies, any individualized inquiries associated with the application of its

defenses would not predominate over the common questions of law and fact.

{^1111} To the extent that the BWC’s defenses apply to the claims at issue,

they would appear to apply equally to each of the class members — susceptible

to common, generalized proof and amenable to class-wide resolution. For

example, it is undisputed that benefit recipients could have avoided all fees

under the EBT program if they accessed their benefits in certain ways (e.g.,

through ATM withdrawals at particular ATMs or through point-of-sale

transactions), at particular times or locations (e.g., through withdrawals from

Chase ATMs or through a once-a-month withdrawal in a teller transaction) and

in particular amounts (e.g., subject to daily or per transaction withdrawal limits

set by the bank or ATM owner). Thus, to the extent the BWC’s mitigation and

voluntary payment defenses are based on benefit recipients’ failure to access

their benefits so as to avoid all fees, they would present common issues.

{1112} Likewise, although the BWC contends that, in applying the

voluntary payment doctrine, “claimant-specific” inquiries would need to be made

to determine whether each class member had prior knowledge of the fees

charged and whether he or she “voluntarily accepted the fee for some or all of his

transactions,” both BWC and Chase representatives testified that all benefit

recipients received disclosure statements and card member agreements that set

forth the applicable fees prior to activating their debit cards. Those

representatives further testified that, with respect to fees associated with ATM

transactions, benefit recipients were informed of applicable fees during the

course of the ATM transaction and were required to accept those fees before the

transaction could be completed. If this is true, all class members arguably knew

or should have known, prior to accessing their benefits, that they would be

charged fees if they accessed their benefits in certain ways. Furthermore, each

benefit recipient participating the EBT program received a monthly account

statement in which any fees assessed were disclosed. Accordingly, even if class

members were not initially aware that they would be charged fees for accessing

benefits in certain ways, once they used their debit cards, they certainly would

have been on notice that they were being charged fees to access their benefits.

{f 113} Moreover, as the BWC points out, the voluntary payment doctrine

does not apply where an individual acts under fraud, duress or compulsion. It

is undisputed that if benefit recipients accessed their benefits in certain ways,

they had no choice but to pay the fees assessed by Chase. Cirino testified that

the second time he used his debit card and attempted to access the balance of his

benefits through a second monthly teller transaction, Chase took out fees from

his account, reducing his benefit payments, before allowing him to withdraw any

funds. Indeed, even after taking out the fees, Chase did not allow Cirino to

immediately withdraw the balance of his benefit payments. Due to the bank’s

one-teller-transaction-per-branch-per-day rule, Cirino had to go to a second

Chase branch to access the balance of his benefit payments. Likewise, to access

benefit payments through transactions at nonChase ATMs for which fees were

assessed, the benefit recipient had to “accept” the fees before the transaction

would be processed. Accordingly, there was no way benefit recipients could

access their benefits in those ways without paying the fees assessed by Chase.

{fll4} In addition, the BWC’s “injury-in-fact” and “benefits rule”

arguments ignore the fact that, as defined by the trial court, the class is limited

to those EBT program participants “who were assessed unreasonable fees under

authority of the [BWC-Chase agreement].” (Emphasis added.) As noted above,

what constitutes an “unreasonable” fee is not specified in the class definition.15

Even assuming the BWC could demonstrate that some or all of the class

members received benefits in exchange for the fees assessed under the EBT

program, given that the class is limited to those who were charged

“unreasonable” fees, it would not appear that any “benefits” class members

allegedly received from participating in the EBT program could be said to have

exceeded the fees they were assessed under the EBT program.

{f 115} Indeed, even if one or more of the BWC’s defenses applied to only

certain class members or some other individualized inquiry needed to be made

15 It is unclear from the trial court’s opinion what constitutes “unreasonable fees”

for purposes of the class definition. Although neither party has raised the issue, we

believe it will be necessary for the trial court to define the term in order to properly

identify the members of the class moving forward. See Civ.R. 23(C)(1)(c) (“An order

that grants or denies class certification may be altered or amended before final

judgment.”).

to determine a class member’s eligibility for recovery or the amount of a class

member’s recovery, it would not preclude class certification under Civ.R.

23(B)(3). “‘[A]s long as there is a sufficient nucleus of common issues, differences

in the application of [an alleged defense] to individual class members will not

preclude certification under Rule 23(B)(3).’” Hamilton, 82 Ohio St.3d 67 at 84,

694 N.E.2d 442, quoting 5 Moore’s Federal Practice, Section 23.46[3], at 23-210

to 23-211.

{1116} On the record before us, we cannot say that the trial court abused

its discretion in certifying the class under Civ.R. 23(B)(3). Here, the common

questions of law and fact at issue are both a “significant aspect of the case” and

“capable of resolution for all members in a single adjudication.” Cullen, 137 Ohio

St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, at 1 30, quoting Marks, 31 Ohio

St.3d at 204, 509 N.E.2d 1249. The class claims are based on a single practice,

i.e., charging benefit recipients fees to access benefits under the EBT program,

that applied across-the-board, without exception, to all class members. The

central, pivotal issues in the case are whether the BWC’s distribution of workers’

compensation benefits through the EBT program violates Article II, Section 35

of the Ohio Constitution, R.C. 4123.341 and/or 4123.67 and whether the BWC

owes benefit recipients the difference between the benefits they were awarded

and the benefits they received under the EBT program after Chase deducted

various fees from their benefit payments. The record reflects that benefit

recipients received standardized communications and marketing materials from

the BWC regarding the distribution of benefits under the EBT program and that

class members were all subjected to the same fees and fee schedules. If the

BWC’s practice of distributing benefits to benefit recipients through the EBT

program violates Article II, Section 35 of the Ohio Constitution, R.C. 4123.341

and/or R.C. 4123.67, a single adjudication will resolve the issue as to all class

members. Even assuming the BWC has specific defenses against one or more

members of the class, the overriding “common” questions concerning the

lawfulness of the BWC’s EBT program predominates over these individualized

inquiries. Accordingly, the trial court did not abuse its discretion in finding that

the predominance requirement was satisfied.

{fll7} Likewise, we find no abuse of discretion by the trial court in

concluding that the superiority requirement was satisfied. The anticipated

recoveries of each of the class members in this case are relatively modest. The

record reflects that from June 2007 through February 2012, Chase collected

$1.47 million in fees from benefit recipients in EBT transactions. Although the

number of class members is unclear, it appears from the record that 65,723 new

accounts were opened at Chase for benefit recipients under the EBT program

from 2007 through February 2012. Of the ten fees authorized under the fee

schedule, seven of the fees were under $5.00, ranging from $.50 to $5.00 per

transaction. Litigating the disputes one claim at a time would not be an efficient

use of judicial resources. There is no evidence in the record that any other class

members have filed individual actions against the BWC. Thus, it does not

appear that there is a current or anticipated interest in individual plaintiffs

pursuing their own separate actions against the BWC. Accordingly, the trial

court’s finding that a class action is superior to other methods of adjudication

was not an abuse of discretion.

{^118} We overrule the BWC’s second assignment of error.

Rulings on Motions for Summary Judgment

{^1119} In its third assignment of error, the BWC challenges the trial

court’s denial of its motion for summary judgment and granting of plaintiffs’

motion for summary judgment. Once again, we must first consider whether we

have jurisdiction to consider this assignment of error. Cirino asserts that the

trial court’s judgment entry on summary judgment is not a final, appealable

order because the trial court “has not yet undertaken the final proceedings to

determine the recovery that is due,” impose declaratory and injunctive relief and

“otherwise conclude the administration of the class.” The BWC argues that this

court has jurisdiction to review the trial court’s rulings on summary judgment

because (1) the trial court determined that each class member is entitled to

restoration of his or her unpaid benefits, (2) we have jurisdiction to consider the

trial court’s order on class certification and the same arguments and evidence

were considered by the trial court on class certification and summary judgment

and (3) the trial court included Civ.R. 54(B) language in its judgment entry on

summary judgment, stating that “there is no just reason for delay should an

interlocutory appeal of this order be pursued.” Following a thorough review of

the issue, we conclude that we lack jurisdiction to consider the BWC’s third

assignment of error.

{^120} As noted above, we can review only final, appealable orders. See

Hubbell, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, at f 9; Ohio

Constitution, Article IV, Section 3(B)(2); R.C. 2501.02. An order granting

summary judgment alone, without providing any remedy, is, as a general rule,

interlocutory and not appealable. See, e.g., Coon v. Barnes, 95 Ohio App.3d 349,

351-352, 642 N.E.2d 449 (3d Dist.1994) (order granting summary judgment for

the plaintiff in an action for an injunction, “without providing any remedy

establishing the respective rights and obligations of the parties to permit

compliance or enforcement,” was not a final, appealable order); State ex rel.

Fisher v. Cleveland, 8th Dist. Cuyahoga No. 82389, 2003-Ohio-2754, | 8 (order

granting summary judgment to plaintiffs was not a final, appealable order where

it did not “expressly grant plaintiffs the only forms of relief they requested,

injunctive relief and attorney’s fees”); Haberley v. Nationwide Mut. Fire Ins. Co.,

142 Ohio App.3d 312, 314, 755 N.E.2d 455 (8th Dist.2001) (trial court’s order

granting insurer’s motion for summary judgment was not a final appealable

order where it did not “expressly declare the rights and duties of the parties”);

see also Lycan v. Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d 593,

If 22-24 (trial court’s order granting partial summary judgment did not provide

a basis for reviewing res judicata issue because order was not final and

appealable).

121} Although this case involves issues of restitution rather than

damages, we note that “[generally, orders determining liability in the plaintiffs’

* * * favor and deferring the issue of damages are not final appealable orders

under R.C. 2505.02 because they do not determine the action or prevent a

judgment.” State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d

543, 546, 684 N.E.2d 72 (1997). Although an exception is recognized “where the

computation of damages is mechanical and unlikely to produce a second appeal

because only a ministerial task similar to assessing costs remains,” id., this is

not a case in which only “mechanical” or “ministerial tasks” remain.

{if 122} In this case, although the trial determined (1) that Cirino was

entitled to judgment as a matter of law against BWC on his claims for statutory

and constitutional violations, (2) that he and “similarly-situated workers[’]

compensation claimants” were entitled to receive “the balance of their benefit

payments equal to the amount of bank fees deducted by Chase from their

benefits” and (3) that “[djeclaratory judgment and injunctive relief should issue,”

it has not yet ordered any relief. The trial court has ordered that hearings be

scheduled to determine the monetary relief to be awarded. Further, it has not

yet been established who is to be included in the final judgment. The class is

limited to “current and former participants in the Ohio Workers’ Compensation

system who were assessed unreasonable fees under authority of the [BWC-Chase

agreement]The trial court has ordered that class members be given notice and

an opportunity to opt out as required under Civ.R. 23(B)(3); however, class notice

has not yet been issued. Further, given that the class is limited to those benefit

recipients who were charged “unreasonable” fees, we anticipate that there will

be future disputes over who is properly included within the class. See, e.g., Lucio

v. Safe Auto Ins. Co., 188 Ohio App.3d 190, 2010-Ohio-2528, 935 N.E.2d53,11-

2, 20-34 (7th Dist.) (order granting summary judgment to plaintiffs but

postponing issue of damages until after hearing was not a final, appealable order

under R.C. 2505.02 and was not subject to the ministerial acts exception as

evidence had to be presented as to each class member’s status and entitlement

and there could be disputes as to amount of damages); see also White at 546.

{f 123} The fact that the trial court issued a ruling on class certification

does not mean that subsequent interlocutory decisions become appealable orders

simply because the case is a class action. See, e.g., Lucio at if 35-36. “The plain

language of R.C. 2505.02(B)(5) is that only the order that determines the action

can be maintained as a class action can be appealed, not subsequent orders that

apply to the class after certification.” Id.

{1124} Likewise, the fact that the trial court included Civ.R. 54(B)

language in its journal entry does not mean that it is a final, appealable order.

A trial court’s “mere incantation” of Civ.R. 54(B) language does not convert an

otherwise nonfinal order into a final, appealable order. Noble v. Colwell, 44 Ohio

St.3d 92, 96, 540 N.E.2d 1381 (1989). Regardless of the Civ.R. 54(B) language,

if an order is not final under R.C. 2505.02(B), then the appeal must be dismissed

because the appellate court lacks jurisdiction. See, e.g., Lycan, 146 Ohio St.3d

29, 2016-Ohio-422, 51 N.E.3d 593, ^ 21 (“An order is a final, appealable order

only if it meets the requirements of both R.C. 2505.02 and, if applicable, Civ.R.

54(B).”); Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-0hio-607,

861 N.E.2d 519, f 15 (“The threshold requirement * * * is that the order satisfies

the criteria of R.C. 2505.02.”); Wisintainer v. Elcen Power Strut Co., 67 Ohio

St.3d 352, 354, 617 N.E.2d 1136 (1993) (“the phrase ‘no just reason for delay’ is

not a mystical incantation which transforms a nonfinal order into a final

appealable order” but it can “through Civ.R. 54(B),transform a final order into

a final appealable order”), citing Chefltaliano Corp. u. Kent State Univ., 44 Ohio

St.3d 86, 541 N.E.2d 64 (1989).

{^1125} Accordingly, we lack jurisdiction to consider the BWC’s third

assignment of error. The BWC’s third assignment of error is disregarded.

{^126} Appeal dismissed in part; judgment affirmed in part; matter

remanded for further proceedings.

It is ordered that appellees recover from appellant the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the Cuyahoga County CourtJ

of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

ER, PRESIDING JUDGE

MARYJ. BO

SEAN C. GALLAGHER, J„ CONCUR

FILED AND JOURNALIZED

PER APP.R. 22(C)

DEC 22 2016

CUYAHOGA COUNTY CLERK

OF THE COURT OF APPEALS

By - _ _ _ Deputy

I llllll lllll lllll lllll lllll lllll 111111111111111111 11111 72833467

IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO

MICHAEL CIRINO, ON BEHALF OF HIMSELF AND ALL ETC.

Plaintiff

OHIO BUREAU OF WORKERS' COMPENSATION Defendant

Case No: CV-10-727380

Judge: JANET R BURNSIDE

JOURNAL ENTRY

DI OHIO BUREAU OF WORKERS' COMPENSATION MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION RONALD D HOLMAN 0036776, FILED 12/23/2010, IS DENIED. SEE FULL MEMORANDUM OPINION JOURNALIZED THIS DATE.

03/12/2012

Judge Signature

RECE[VED FOR HUNG 03/1212012 13:10:29

By: CLDAW GERALD E. FUERST, CLERK

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CPC43·2

STA TE OF OHIO ) IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY ) SS: ) )

MICHAEL CIRINO

Plaintiff,

VS.

OHIO BUREAU OF WORKERS' COMPENSATION

Defendant

JANET R. BURNSIDE, JUDGE:

) ) ) ) ) ) ) ) ) ) )

CASE NO. CV-727380

JUDGMENT ENTRY

, . ./

This matter comes before the Court for decision on the Bureau's motion to dismiss under

Civ.R. 12(B)(l) and 12(H)(3) on the grounds this Court lacks subject matter jurisdiction,

Cirino's brief in opposition, and the Bureau's reply brief. Attached to these filings were

evidentiary and other materials in support of the parties' arguments.

The Bureau argues that Cirino's claims seek legal relief for which the Ohio Court of

Claims has exclusive, original jurisdiction under RC. 2743.03. Cirino contends his claims are

purely equitable in nature and therefore the Court of Common Pleas has jurisdiction.

FACTS OF THE CASE

Cirino's complaint states Cirino did not receive l 00% of his Workers' Compensation

benefits that were owed to him under his workers' compensation award after the Bureau in 2009

implemented a mandatory system of electronic benefit payments under R.C. 4123.311. In

money terms, Cirino seeks recovery of the unpaid balance of his benefits from the Bureau.

Under the new system there are two ways a participant could elect to receive his or her

benefits payment. First is the direct deposit option called Electronic Funds Transfer ("EFT")

where funds are deposited into the participant's bank account. Cirino was enrolled in the second

method of receiving his workers' compensation benefits, the Electronic Benefit Transfer

("EBT"). Under the EBT method, Cirino received a Visa debit card issued from Chase Bank.

Twice a month an amount of money equal to his disability payment was credited to his Chase

account. For certain transactions, for example, when the card is used at non-Chase ATMs or for

multiple teller transactions, Chase would deduct and retain fees from the individual's account.

Cirino argues that under Ohio law, the Bureau has a duty to ensure that recipients receive

their full benefit amounts; any fee or cost of administering the Workers' Compensation Program

is to be borne by the State under R.C. 4123.341; Chase is in effect the Bureau's agent for

payment of benefits; and Chase's deduction of fees from Cirino's account deprived Cirino of his

full benefits. Cirino argues that the fees charged by Chase equate to monthly maintenance fees

which violate R.C. 4123.341and therefore the Bureau owes him the "unpaid" balance of his

benefits amount.

The Bureau contends that it satisfied its duty to pay full benefits when it transferred the

appropriate amount of money each month into Cirino's Chase account; the Bureau has no control

over the funds once they are deposited; any fees assessed by Chase Bank are out of the Bureau's

control; and in any event, Cirino agreed to the fees in his Chase Cardholder Agreement. Since

the Bureau paid the full amount of Cirino's workers' compensation award into his Chase

account, any recovery by Cirino of these "unpaid" fees from Bureau would equate to recovery of

monetary damages, a claim for which the Court of Claims has exclusive jurisdiction.

This Court does not reach the merits of the parties' underlying dispute at this time.

Cirino's complaint "seeks appropriate declaratory and injunctive relief as well as the

return of specific funds wrongfully collected and withheld, and I or for which the named Plaintiff

and the class members assert title and right of possession to, as injured workers entitled to

statutory payments in Ohio." As more thoroughly discussed below, it appears the two sides

carefully characterize and describe the relief sought in order to fall inside or outside this Court's

jurisdiction under the relevant Ohio Supreme court decisions on the subject.

LEGAL ANALYSIS

The defense of lack of subject matter jurisdiction may be properly brought by motion.

Ohio Civ.R. 12(8)(1). The standard applied to a motion to dismiss based on Civ.R. 12(8)(1) is

whether Cirino has raised any cause of action cognizable by the forum. In re Estate of

Baughman (1998), 81 Ohio St.3d 302, 304. "The trial court is not confined to the allegations of

the complaint when determining its subject-matter jurisdiction pursuant to a Civ.R. 12(8)(1)

motion to dismiss, and it may consider material pertinent to such inquiry without converting the

motion into one for summary judgment." Southgate Development Corp. v. Columbia Gas

Transmission Corp. (1976), 48 Ohio St. 2d 211, syllabus 1. Therefore the Court may use the

exhibits to the parties' pleadings and motion filings to determine the jurisdiction issue before it.

The Court of Claims was established under R.C. 2743.03. Its jurisdiction does not extend

to claims s.eeking solely declaratory, injunctive or other equitable relief; those claims remain in

the original jurisdiction of other Ohio courts. R.C. 2743.03(A)(l). Claims seeking legal relief

from the State as permitted by the statutory waiver of immunity in R.C. 2743.02 fall under the

jurisdiction of the Court of Claims. Id. Furthermore, when claims for monetary damages are

coupled with any form of equitable relief, all of the claims are also under the exclusive, original

jurisdiction of the Court of Claims. R.C. 2743.03(A)(2).

FIF>r.trnnir.;:ill" ;rQri n?111nn~e:; 11·n~ t l\rnTrr~, r\11n 7')7".lQn, r-

THE DISPUTE BEFORE THIS COURT

"In determining whether the Court of Claims has subject matter jurisdiction, it is necessary to examine both the nature of the claim (whether it sounds in law or equity) and the relief sought (whether compensation for an injury to one's person, property, or reputation, or specific relief such as the recovery of specific property or monies)."

Windsor House, Inc. v. Ohio Dept. of Job & Family Servs. (101h Dist., 2011), 2011 WL

6296623(citing Measles v. Indus. Comm. (2011), 128 Ohio St.3d 458; Ohio Hosp. Assn. v. Ohio

Dept. of Human Servs. (1991), 62 Ohio St.3d 97; Zelenak v. Indus. Comm. (101h Dist., 2002), 148

Ohio App.3d 589). Put another way, "the jurisdiction of the Court of Claims is predicated upon

whether an action seeks money damages or equitable relief." Parsons v. Ohio Bureau of

Workers' Compensation (l 01h Dist., 2004), 2004 WL 1925694, 1 12. This distinction explains as

· much as anything why the parties describe the complaint's objectives differently, damages as

opposed to equitable relief.

When faced with this dispute of characterization of a plaintiffs sought-after recovery in

Cristino v. Ohio Bur. of Workers' Comp. (2008), 118 Ohio St.3d 151, the Ohio Supreme Court

relied on the distinction between a "legal restitution claim" and an "equitable restitution claim"

drawn by the United States Supreme Court in Great-West Life & Annuity Ins. Co. v. Knudson

(2002), 534 U.S. 204, 213. In a legal restitution claim the plaintiff cannot assert in his claim the

"title or right to possession of particular property, but in which nevertheless he might be able to

show just grounds for recovering money·to pay for some benefit the defendant had received from

him". On the other hand, an equitable restitution claim is a claim in which "money or property

identified as belonging in good conscience to the pl~intiff could clearly be traced to particular

funds or property in the defendant's possession." 118 Ohio St. 3d at 153(quoting Great-West

Life).

This dichotomy sets up the semantical arena in which the parties' jurisdictional dispute

takes place. The Bureau argues Cirino wants to recover money in the hands of Chase who

withheld part of Cirino's benefits as transaction fees. As the Bureau's argument goes, Cirino is

not seeking money that can clearly be traced to funds in the Bureau's possession; the withheld

transaction fees were taken by Chase; therefore Cirino is making a legal restitution claim for

which the Court of Claims has original and exclusive jurisdiction. Cirino argues that he is

making an equitable restitution claim because he seeks his rightful unpaid benefits clearly owing

to him and those unpaid benefit amounts were in the Bureau's possession until transferred to

Chase. Viewed in this way, Chase is the Bureau's agent for payment of benefit amounts and

money in an agent's possession is imputed to its principal's possession.

For the reasons explained below, we find that Cirino's claims are equitable in nature for

which this Court has exclusive, original jurisdiction. Therefore the Bureau's motion to dismiss is

not well taken and must be denied.

The facts are clear that Cirino was owed money by Bureau for workers' compensation

benefits and that the Bureau transferred monies equal to one hundred percent of the benefits

owed to Cirino's Chase bank account bi-weekly. It is also agreed that Chase Bank deducted $60

over approximately twelve months for excess over-the-counter teller transactions and/or use at

non-Chase A TMs. The only issue is what type of relief Cirino is seeking, legal or equitable.

Whether or not this system for payment of benefits is proper deals with the merits of the case and

is not at issue in this motion to dismiss for lack of subject matter jurisdiction.

Cirino claims that he is not asking for monetary damages, rather he is seeking to be

reimbursed by the Bureau for the fees that were charged and collected by its agent Chase Bank to

make him whole. Cirino relies on Ohio Hosp. Assn. v. Ohio Dept. of Human Services (1991), 62

Ohio St.3d 97, and similar cases in Ohio which discuss the substitution test. This test states that

"[d]amages are awarded to substitute for a suffered Joss, whereas specific remedies ... attempt to

give the Cirino the very thing to which he was entitled." Id. at 98 (internal citations omitted).

Cirino relies heavily on the reasoning in Santos v. Ohio Bureau of Workers' Compensation

(2004), 101 Ohio St.3d 74, in his assertion that his relief is equitable in nature. In Santos the

Ohio Supreme Court held that "[a] suit that seeks the return of specific funds wrongfully

collected or held by the state is brought in equity." Id. at syllabus. This Court can not reach a

different conclusion simply because the Bureau turned benefit funds over to Chase for

distribution and made Chase an agent of the Bureau for distribution of benefits.

Based on the foregoing the motion to dismiss is denied. The action remains within this

Court's exclusive jurisdiction. Discovery shall. continue to enable resolution of the action upon

the merits. Trial is set for 6/4/11 at 9 a.m. The parties may elect however to first litigate one or

more issues on summary judgment and in such case Defendant shall file any such dispositive

motion by 5/1/12 with Plaintiffs opposition brief due 6/1/12 and Defendant's reply due 6/15/12.

If Plaintiff desires to file a cross-motion for dispositive relief, he shall file same on 6/1/12 (as

part of his opposition brief if the latter is filed) and in such case Defendant shall file its

opposition brief by 7 /1/12 and may delay any reply brief for filing with that opposition brief and

Plaintiff will file its reply brief by 7 /16/12. If either party files a timely dispositive motion, then

the trial date will be reset after resolution of any such motions.

IT IS SO ORDERED.

March 12, 2012

Copies lo by email to Ronald Holman and Craig Bashein respectively at rholmnn@)cnvilch.com and cbashein@bnshcinlnw.com

RECEIVED FOR FILING

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CPC 43·2 EXHIBIT 4

STATE OF OHIO )

) SS.

CUYAHOGA COUNTY )

MICHAEL CIRINO, on behalf of

Himself, etc.

Plaintiff

vs.

OHIO BUREAU OF WORKERS'

COMPENSATION Defendant

JANET R. BURNSIDE, JUDGE:

IN THE COURT OF COM~N rl~~~ u tu .. ,.t .. u

CASE NO. CV-10-727380

) . ) ) ) ) ) )

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201h Jt~N 13 A 'I: Sb

CL.[fl;.·; Of7 COURTS CUYAHOGA COUNTY

JUDGMENT ENTRY as to Class Certification

This matter comes before the Court upon Plaintiff Michael Cirino's Motion for

Class Certification, Defendant Ohio Bureau of Workers' Compensation (BWC)'s

opposition brief and the hearing evidence.

Cirino seeks class action status under Civ. R. 23(8)(2)-(3) on behalf of the class

of all "claimants who had withdrawal transaction fees, charges, costs or expenses

collected or withheld" as a result of the BWC's electronic benefit transfer (EBT) program

for payment of workers' compensation benefits.

On October 21, 2014, an evidentiary hearing was held. The parties stipulated

that the Court should consider all evidence submitted by them for their motion for

summary judgment as well certain stipulations made by the parties before the Court.

After reviewing all relevant law and fact, the Court finds that the evidence satisfies all

requirements of Civ. R. 23 and hereby grants the motion.

Electronicall1 iled 02/11/2016 11 :03 / NOTICE I CV 10 727380 I Confirmation Nbr. 667814) CLDLJ-~--------'---

Electronica

LAW AND ANALYSIS

When considering a motion to certify a class, the court accepts the complaint's

allegations as true. Duncan v. Hopkins, 9th Dist. Summit, 2007-0hio-1425, iJ 5 (citing

Ojalvo v. Bd. of Trustees, 12 Ohio St. 3d 230, 233(1984)). The Court considers the

factual submissions and stipulations of the parties to determine if all of the requirements

for class certifications are met.

There are seven requirements necessary for class certification: 1) an identifiable

class must exist and be unambiguous; 2) the named representatives must be members

of the class; 3) the members must be so numerous that joinder of each individual is

impractical; 4) there must be questions of law or fact common to the class; 5) the claims

of the representatives must be typical of the class; 6) the representative parties must

fairly and adequately protect the interests of the class; and 7) one of the three Civ. R

23(8) requirements must be met. Warner v. Waste Management, Inc., 36 Ohio St. 3d

91, 94-95(1988). Cirino argues the class action meets the requirements of both Civ. R.

23(8)(2) and (3).

Cirino met the burden of proof with regard to many of the requirements of class

certification because BWC did not dispute the following: the identifiable class, that

Plaintiff is a member of the class, numerosity, commonality, or the adequacy of

representation. A brief discussion of the evidence supporting each of those

requirements follows.

Identifiable Class

Cirino proposes the following class be certified in this action:

All current and former participants in the Ohio Workers' Compensation system who were assessed fees under

2

authority of the Chase Direct Payment Card Program­Agency Service Agreement that was approved by Defendant, Ohio Bureau of Workers' Compensation, and dated December 22, 2006, and as amended.

Excluded from the class are employees of BWC and their spouses, any class member

who opts out, and any employees of the Cuyahoga County Court of Common Pleas and

their immediate families. BWC did not dispute the identifiable class. All information

regarding injured workers participating in the program and their accounts has been

maintained in separate databases by Chase Bank. The information maintained by

Chase Bank includes the names of potential class members, the amount of bank fees

they paid under the EST program, and the types of fees they paid. The proposed class

is limited in time and number and is specific and clear so that members can be

"identifi[ed] with reasonable effort." Linn v. Roto-Rooter, Inc., 2004-0hio-2559 (8th Dist.

Cuyahoga No. 82657).

Plaintiff is a Member of the Class

Named plaintiff Michael Cirino is a member of the proposed class. The evidence

shows that Cirino is and was during the class period a claimant who received a statutory

benefit award and who had transaction fees, charges, costs, or expenses collected or

withheld from his workers' compensation claim payments under the EST program.

Between September 23, 2009 and October 23, 2010, Cirino was assessed $5 "POS

Cash Advance" charges on fourteen occasions, amounting to $70 in fees.

Numerosity

Civ. R. 23(A) requires that the class be so "numerous that joinder of all members

is impracticable." In Warner, the Ohio Supreme Court indicated that when the number

of proposed class members exceeds forty, this element is satisfied. Warner at 97.

3

According to records from Chase Bank, fees were assessed to workers' compensation

claimant totaling almost $1.5 million from the beginning of the program through

February 2012. An exact number of affected claimants has not been identified by the

parties, but they agree it is readily identifiable from the records of Chase Bank and

BWC. There were 65,723 new accounts linked to debit cards that were opened at

Chase Bank for BWC claimants from 2007 through February 2012. Since almost $1.5

million in fees was collected and six out of the ten fees charged are $5 or less, it is

reasonable to conclude that more than forty claimants were affected. In any event,

BWC did not dispute the numerosity element of the class.

Commonality

Commonality requires a common nucleus of operative facts. Warner at 97. The

Ohio Supreme Court has held that a common legal issue as to liability is sufficient to

satisfy this element. Oja/vo at 233. Cirino and all the proposed class members have

been assessed fees as set forth in the fee schedule to the Agency Service Agreement

between BWC and Chase Bank dated 01/04/2007 and as later amended. Every fee

charged to a claimant was made according to the fee schedule approved by BWC.

BWC did not dispute the commonality of facts applicable to the class issues.

Adequacy of Representation

Civ. R. 23(A) also requires that the representative plaintiff fairly and adequately

protect the interests of the class. "A representative is deemed adequate so long as his

interest is not antagonistic to that of other class members." Marks v. C.P. Chemical

Co., 31 Ohio St. 3d 200, 203(1987). BWC did not dispute that Cirino is an adequate

4

representative. The Court finds that Cirino's interests are not antagonistic to that of the

other class members.

Typicality

The requirements of typicality and the requirements of Civ. R. 23(8) were

disputed by BWC. Civ. R. 23(A)(3) requires that the claims or defenses of the

representative plaintiff be typical of the claims of the class. "The typicality requirement

has been found to be satisfied where there is no express conflict between the

representatives and the class." Warner at 98. Warner held that this element is satisfied

if the claims of the representative are from the same practices as that which give rise to

the claims of the other class members. Id. at 95-96. The Court finds that Cirino's

claims are identical to, and arise from, the same practices used with the other members

of t~e class.

BWC argues that Cirino is not typical of the proposed class because he was

charged only the $5 teller fee. That Cirino was charged only one of the eleven fees

charged to claimants does not make his claim atypical compared to those of the class.

Plaintiff's complaint did not contest certain of the various bank access fees; it contested

that any fees were charged for access to claimant money at all.

BWC also argues that Cirino could have avoided all fees he was charged by

accessing his account through different means and so he could be subject to unique

defenses that, e.g., he failed to mitigate his loss. BWC assets that Cirino's claim might

not be typical of the class. However, "[T]he defenses or claims of the class

representatives must be typical of the defenses or claims of the class members. They

need not be identical." Planned Parenthood Association v. Project Jericho, 52 Ohio St.

5

3d 56 (1990). The Court finds that typicality is not affected by issues of a possible

mitigation issue; the issue could be asserted against other members of the proposed

class.

Civ. R. 23(8)

Finally, this action must satisfy one of the three elements in Civ. R. 23(8). Cirino

argues that both subsections (2) and (3) apply. 8WC disputes that Cirino's action is

cognizable under either subsection (2) or (3). Civ. R. 23(8)(2) states, "the party

opposing the class has acted or refused to act on grounds that apply generally to the

class, so that final injunctive relief or corresponding declaratory relief is appropriate

respecting the class as a whole". The Court finds that Cirino's action does satisfy the

requirements for class certification pursuant to Civ. R. 23(8)(2).

The Court considers if Cirino's action satisfies Civ. R. 23(8)(3). Civ. R. 23(8)(3)

reql.lires, "that the questions of law or fact common to class members predominate over

any questions affecting only individual members, and that a class action is superior to

other available methods for fairly and efficiently adjudicating the controversy .... "

Ohio law gives courts broad discretion in determining class certification under

Civ. R. 23(8)(3), but requires the court to engage in a rigorous analysis of the facts as

applied to the rule. Baughman v. State Farm Mutual Auto. Ins. Co., 88 Ohio St. 3d 480,

483 (2000); Hamilton v. Ohio Sav. Bank, 82 Ohio St. 3d 67, 70 (1998). Four factors

must be taken into consideration:

(a) the class members' interests in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already begun by or against class members; (c) the desirability or undesirability of concentrating the litigation of

6

the claims in the particular forum; and (d) the likely difficulties in managing a class action. Civ. R. 23(8)(3). 1

The Ohio Supreme Court held the purpose behind Civ. R. 23 (8)(3) is to enable

"numerous persons who have small claims that might not be worth litigating in individual

actions to combine their resources and bring an action to vindicate their collective

rights." Hamilton at 80 (quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure§ 1777, p. 518 (2d ed. 1986)). Class action

treatment is appropriate when claims "arise from identical or similar form contracts" or

from "standardized procedure and practices." Id. '

According to the complaint, BWC sent "form letter communications" advising

claimants of the new payment system that was being universally applied to all workers'

compensation claimants. Given the small amount of potential damages per claimant,

individual class members are unlikely to litigate their claims separately. Individual

actions may be too small to justify a lawsuit, but in the aggregate, the amount at issue

makes litigation of these claims feasible. If BWC policy violates Ohio law, a single

adjudication will resolve the issue for the entire class, preserving adjudicative efficiency.

When taking the four relevant factors set out above into consideration, the Court finds

that class action treatment is appropriate in this action.

BWC argues that Cirino's individual issues predominate over the common issues

of the proposed class because he is subject to the unique defense of mitigation which

would require specific, individualized evidences make this action inappropriate for class

action treatment. It further argues that the voluntary payment defense and benefits rule

defense preclude a finding that common issues predominate over individualized issues

I Under amendments to Civ.R.23, effective July I, 2015. 7

of the proposed class members. The Court finds that these defenses do not apply

because Cirino's claims for relief, on their own terms, seek the unpaid balance of owed

benefits of these transactions, rather than damages. Further there is nothing to suggest

that Cirino alone would face a mitigation defense to the exclusion of his fellow class

members.

CONCLUSION

BWC also revisited 'its assertion that the Court lacks jurisdiction to hear this

matter. The Court thoroughly dealt with this issue when it ruled on BWC's motion to

dismiss. No new argument has been advanced to warrant re-examination of that issue.

The Court finds that Cirino has satisfied all the elements necessary for class

certification, and hereby grants his motion for class certification. The following class is

hereby certified in this action:

All current and former participants in the Ohio Workers' Compensation system who were assessed unreasonable fees under authority of the Chase Direct Payment Card Program-Agency Service Agreement that was approved by Defendant, Ohio Bureau of Workers' Compensation, and dated December 22, 2006, and as amended.

IT IS FURTHER ORDERED that the claims of the class will be: 1) restitution,

unjust enrichment, disgorgement, and injunctive relief; and 2) a declaratory judgment

establishing that BWC's practices are unlawful and unenforceable. The class claims will

not include the complaint's prayor for injunctive relief.

IT IS FURTHER ORDERED that named Plaintiff Michael Cirino shall serve as the

class representative and the law firms of Bashein & Bashein Co., LPA and Charles J.

Gallo Co., L.P.A. are hereby appointed to serve as class counsel. Bashein & Bashein

Co.; LPA and Charles J. Gallo Co., L.P.A. have extensive experience and knowledge in

8

litigating both class actions and matters involving BWC and relevant laws. The Court

has also considered the work that counsel has done in identifying and investigating

potential claims in this action and the resources that counsel will commit to representing

this ~lass and believes that class counsel will fairly and adequately represent the

interests of the class. Ci,v. R. 23(F).2

IT IS FURTHER ORDERED that Defendant Bureau of Worker's Compensation is

to produce a complete class list with mailing addresses to class counsel and confer with

same about the proper manner and form of notification to class members by April 1,

2016. Said class list shall include the following: the name and last known address (and

e-mail addresses where applicable) of any person who falls into the above class

definition; the types of fees charged to each member; the total amount of each fee

charged to each member; and any other information deemed necessary and relevant by

the parties.

IT IS FURTHER ORDERED that the parties are to submit forthwith to the Court a

proposed class notice that is practicable under the circumstances. The notice must

clea.rly and concisely state in plain easily understood language the following: 1) the

nature of the action; 2) the definition of the class certified; 3) the class claims, issues, or

defenses; 4) that a class member may enter an appearance through an attorney if the

member so desires; 5) that the court will exclude from the class any member who

requests exclusion; 6) the time and manner for requesting exclusion; and 7) the binding

effect of a class judgment on members under Civ. R. 23(C). 3

2 Under amendments to Civ.R.23, effective July I, 2015. 3 Under amendments to Civ.R.23, effective July I, 2015.

9

IT IS SO ORDERED.

/-l"!J--1· DATE

Copies by U.S. mail to:

Charles Gallo Paul W. Flowers Co., LPA Suite 2222 55 Public Square Cleveland, Ohio 44113

W. Craig Bashein Bashien & Bashien Co., LPA 35th Floor Terminal Tower 50 Public Square Cleveland, Ohio 44113 cbashein@basheinlaw.com

JUDGE

Ronald D. Holman Taft Stettinus & Hollister, LLP 3500 BP Tower 200 Public Square Cleveland, Ohio 44114 rholman@taftlaw.com

Mark E. Mastrangelo Ohio Attorney General State Office Building, 11 1h Floor 615 West Superior Avenue Cleveland, Ohio 44113 Mark. mastra nge lo@ohioattorneygeneral.gov

10

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CPC 43·2 EXHIBIT 5

STATE OF OHIO ) ) SS:

CUYAHOGACOUNTY )

MICHAEL CIRINO

Plaintiff,

vs.

OHIO BUREAU OF WORKERS' COMPENSATION

Defendant.

JANET R. BURNSIDE, JUDGE:

IN THE COURT OF C~!Y1~t-t,:f'f1AS v 6~1=-to·,J''

CASE NO. CV-10-727380

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JUDGMENT ENTRY

ON SUMMARY JUDGMENT MOTIONS

This matter came before the Court for decision upon the motion for summary

judgment filed by Defendant Ohio Bureau of Workers' Compensation ("BWC"), a

cross-motion for summary judgment filed by Plaintiff Michael Cirino, the briefs in

opposition, reply briefs, and the parties' evidentiary submissions.

Cirino's class action complaint claims that BWC improperly implemented a

mandatory electronic payment program, known as the "EBT" program, for workers'

compensation benefits when it abandoned its traditional payment of periodic

benefits by check. Lump sum payments continue to be paid by check. Cirino, a

workers' compensation recipient, alleges that in violation of Ohio statutes and the

Ohio Constitution, BWC's method under the program for payment of benefits by

plastic debit cards subjected workers' compensation claimants to bank transaction

fees when claimants tried to access their benefits.

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As the parties characterize the complaint's claims for relief, count one seeks

the finding that the electronic payment program ("EBT") violates specific statutes

and the Ohio Constitution and that claimants are due their as-yet unpaid benefits;

count two seeks injunctive relief to end the program and an order requiring BWC to

pay the balance of the class members' benefits under an equitable restitution,

unjust enrichment, or disgorgement theory; and count three seeks a declaratory

judgment that the program violates specific statutes and the constitution and

declaring claimaint's right to payment for the balance of their benefits.

I. The EBT program alleged to violate specific Ohio statutes

and the Ohio constitution

Cirino contends Ohio's Constitution and RC. 4123.341 establish the state

policy that the costs of admi_nistration for the workers' compensation program shall

be borne by BWC and not be charged to the claimants. His suit claims BWC's EBT

electronic payment system shifts the administrative costs of distributing benefits to

claimants in violation of such state law and policy. Cirino does not contest the

constitutionality of RC. 4123.311 which authorized the electronic payment program;

he contests the way BWC implemented the program.

BWC replaced its practice of issuing checks with an electronic payment

program issuing debit cards through a bank for certain claimants. When BWC

mandated the program, it chose Chase Bank as its agent to issue the debit cards

and handle transactions with them and it approved Chase's fee schedule for some

debit card transactions. Morgan Depo., p. 34-40. Claimants were not allowed to

opt in or out of this electronic payment program.

2

Electronicall1 ~iled 02/11/2016 11 :03 / NOT1ri= f ('.\f 1n 7?7'<An I ('.r,nfirm,:it;~n l\lhr t:'t:''70< A I f"'I '"''

BWC's program allows fees to be withheld by Chase from benefit payments

when claimants try to access their money with debit cards in certain ways. For

examplE~. a $5 fee is subtracted by the bank from the benefits to be paid when a

claimant attempts to access benefits using more than one over-the-counter debit

card transaction per month with a bank teller. (This was modified somewhat in

2012.)

Cirino also alleges that BWC's electronic payment program permits Chase to

impropmly attach claimants' benefits to collect its transaction fees in violation of

RC. 4123.67. This statute prohibits general creditors from reaching a claimant's

benefits before they are paid to the claimant.

BWC denies these claims and argues that it performed under the

requirements of R.C. 4123.311(A)(4) and the corresponding administrative code

provisions, O.A.C. 4123-3-10 "Awards", when it contracted with Chase Bank to pay

benefits by direct deposit into claimants' bank accounts or by issuing debit cards to

claimants without bank accounts. Cirino's complaint only challenges the debit card,

known as the "EBT" program. It does not challenge the direct deposit program,

known as EFT. It is undisputed that BWC's agency agreement with Chase, "Chase

Direct Payment Card Program Agency Service Agreement" (hereafter, Agency

Agreement), included a fee schedule of charges to EBT claimants for certain of

their debit card transactions with Chase and that BWC knew of and accepted that

fee schedule.

3

Cirino's action does not assert that certain of Chase's fees in the EBT

program are unreasonable or unlawful; it asserts the charging of any fees in this

program for paying workers compensation benefits violates Ohio law.

Chase denies that it has principal-agent relationship with Chase because,

among other things, it does not control Chase's fees. As noted below, BWC

officials' deposition testimony admitted otherwise; it established this topic was a

subject of negotiation between Chase and BWC. The evidence is undisputed that

BWC approved fees. Morgan Depo., p. 40.

The total amount of fees that Chase collected from BWC claimants June

2007 through February 2012 was $1.47 million. Dangoff Depo., Ex. 3. During this

time period, BWC saved as much as $4.6 million per year in administrative

' overhead expenses by paying benefits by this electronic payment system instead of

mailing checks. Morgan Depo., p. 109-11. Cirino characterizes BWC's $4.6 million

cost savings compared with the $1.47 million paid by claimants in transaction fees

as unjust enrichment for BWC because at the end of the day, BWC saved money,

Chase Bank received money, and claimants lost a part of their benefits. This is the

basis for Cirino's claim that BWC should be required to pay claimants the balance

of their benefits, that is, the amount of benefits they lost in transaction fees.

Fee collection was tracked after the BWC administrator signed the contract

in 2007. Morgan Depo., p. 39-40. The electronic payment program using either

EFT or EBT was made mandatory in February 2008. Morgan Depo., p 82.

4

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II. The parties' summary judgment motions

BWC moves for summary judgment in its favor upon Cirino's complaint on

the grounds that the electronic payment program does not violate any specific

statute or regulation and that BWC was not unjustly enriched by the EBT program;

and that recovery of money from BWC is not justified under Ohio law.

In support of its motion, BWC produced: 1) the affidavit of Ralph Morgan,

BWC Manager of Benefits Payable, which identified the Agency Agreement, its fee

schedule and addendum; 2) the affidavit of Thomas Sico, BWC attorney, which

identified the January 8, 2008 hearing transcript concerning proposed rule changes

to O.A.C. 4123-3-10 that implemented the electronic payment program; 3) the

affidavit of Tracy Valentino, BWC Chief Fiscal and Planning Officer. BWC also filed

the depositions of Tracy Dangott, Chase Vice President, and Plaintiff Michael

Cirino. (On August 15, 2012 BWC filed a redacted transcript of the July 2, 2012

Tracy Dangott deposition. The Court presumes Cirino knew and consented to this

submission as no objection was made.)

Cirino's evidentiary submissions with his combined opposition brief and

cross-motion did not contradict the evidence submitted by BWC. Cirino filed the

depositions of Mary Manderson, BWC's EBT Coordinator, and Ralph Morgan, BWC

Manager of Benefits Payable, and Cirino's own affidavit Cirino's affidavit identified a

BWC flier notifying claimants of changes to some Chase transaction fees effective

September 1, 2012. In opposition to the Cirino cross-motion for summary judgment,

BWC submitted Tracy Dangott's affidavit.

5

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a. The evidence submitted on summary judgment

The undisputed evidence was described above and continues here. Using

its authority under R.C. 4123.311, BWC in 2008 mandated its electronic payment

program. BWC's program required claimants to choose between direct deposit to a

checking account or having an account with BWC's debit card program. Consistent

with the statute, BWC requested claimants' bank account information to pay them

by direct deposit. This became known as the electronic fund transfer program or

"EFT". BWC issued debit cards to claimants who had no bank accounts or who did

not identify bank accounts for direct deposit and this became known as the

electronic benefit transfer program or "EBT". Only the EBT is involved in this action.

As contemplated by R. C. 4123. 311, BWC entered into the Agency

Agreement with Chase Bank to create separate EFT accounts for direct deposit and

issue debit cards for each EBT claimant. BWC transferred funds for benefit

payment to Chase and Chase distributed benefit payments to claimants as directed,

either by EFT or EBT.

EBT claimants could use their debit cards at automatic teller machines or in

over-the-counter teller transactions or to pay for goods and services for merchants

directly. Under the original Agency Agreement and its fee schedule, after one free

over-the-counter teller transaction per month, EBT claimants were charged a $5 fee

for each additional teller transaction per month. Since claimants are paid twice

each month, BWC's Ralph Morgan recognized early on that this would lead to

claimants paying a $5 fee each month for teller transactions. Morgan Depo., p. 43-

47. In September of 2012 the fee schedule was modified to permit two teller

6

transactions per month without a fee. Claimants became able to withdraw their

benefit payment from a bank teller after every bi-monthly benefit payment deposited

to their account. The charges to transfer money from Chase to another bank

account also were eliminated in 2012. Cirino Affidavit and Exhibit A thereto.

Chase also exacted fees from EBT claimants for other transactions such as

debit card withdrawals from a non-Chase ATM; accessing an ATM outside the

United States; converting debit card funds into foreign currencies; and receiving the

account balance by check when a debit card account was closed. Chase's fee for

this latter check was $12.50. Dangott Depo., p. 68 ("This is when a cardholder calls

us up and closes their account and wants to draw off their balance.").

In April 2009, Michael Cirino was granted temporary total compensation at

$886 bi-weekly. In August 2009, Cirino declined to provide his checking account

information and received notice he would receive his workers' compensation

payments by a Chase debit card. Prior to his enrollment in EBT, he received a

notice that claimants would receive "100% of [their] benefits" and they would "pay

no more check cashing fees." Cirino Depo., p. 91-94 and its Exhibit 4; Morgan

Depo., p. 95 and its Exhibit 10.

Cirino was paid benefits twice each month. He used his Chase debit card to

withdraw his first $886 from a teller at a Chase bank. When Cirino attempted to

withdraw his next payment of $886 from a Chase branch less than a month later, he

was charged $5 consistent with the Agency Agreement's fee schedule. The $5 fee

was withheld from his debit card balance and therefore he was unable to complete

the transaction because his account balance was only $881. The Chase fee was

7

instantly deducted before Chase honored his withdrawal request. Because the EBT

program limits teller transactions to one per day per branch, Cirino could not

attempt a second transaction to withdraw the $881 balance from the teller! He

could only withdraw his funds by visiting another Chase branch that day or return to

th.is Chase branch on a later day to receive the $881 balance. After Cirino

questioned the $5 fee, it was credited back but bank staff explained he would be

charged the fee in the future if he made more than one over-the-counter teller

transaction per month. Nonetheless, Cirino continued withdrawing each benefit

payment from a teller twice a month, although he could have avoided this fee by

withdrawing money from a Chase ATM or waiting to withdraw two bi-weekly

payments in a single teller transaction. (Cirino testified he was never provided a fee

schedule until after this litigation was underway.)

The parties agree the fees collected from EBT transactions were retained by

Chase and were never been paid to or shared with BWC.

b. The requirements of Civil Rule 56 have been met

The Court finds there is no genuine issue of material fact. From the

evidence, construed most strongly in favor of Cirino, the Court cannot conclude

reasonable minds could come only to the conclusion that BWC is entitled to

judgment as a matter of law on the complaint. To the contrary, the facts and

arguments construed most strongly in favor of BWC allow reasonable minds to

come to but one conclusion and that conclusion is that BWC violated state

constitutional policy and its statutory duty under R.C. 4123.341 and improperly

shifted administrative costs of benefit payments to EBT claimants and that BWC's

8

electronic benefit program permitted unlawful attachment of claimants' benefits by

Chase to pay transaction fees in violation of R.C. 4123.67.

BWC's EBT program violates R.C. 4123.341 because it impermissvely shifts

the cost of benefit payment to claimants. BWC outsourced its benefit payment

function to Chase Bank at no cost to BWC. That saved BWC $4.6 million each year

in administrative expense formerly required to issue benefit checks. Chase Bank

did not assume BWC's duty to issue benefit payments to claimants for free. Chase

received collateral benefits such as increased deposits and potential new customers

and most notably, it was permitted to charge claimants in the EBT program - debit

card recipients - fees to access their benefits.

It was possible for these claimants to avoid such fees by using their debit

cards in certain ways, for example, using their debit cards for retail purchases or

withdrawing funds at Chase ATM's. As described above other equally predictable

and reasonable techniques using the debit cards subjected claimants to Chase's

fees. As noted, Chase collected some $1.47 million in fees from BWC claimants

over the pertinent time period. Claimants without bank accounts had no choice but

to receive their benefits with debit cards; other claimants chose not to give Chase

a~cess to their bank accounts.

This state of affairs was the result of negotiation between BWC and Chase.

Morgan Depo., p. 43-47. They formulated their working arrangement in the Agency

Agreement which is Morgan Depo.'s Exhibit A-1. BWC approved the Agency

Agreement with Chase which included the fee schedule of potential access charges

for claimants. Id.

9

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No evidence explained why BWC-saving as it was millions in check

distribution expenses per year-did not negotiate an arrangement that avoided fees

to access benefits. Indeed, as noted above, BWC officials recognized at the outset

that claimants would suffer fees since benefits were paid twice monthly but free

teller transactions were limited to once a month. Teller transactions would be

necessary if a Chase A TM was not close by to a claimant or a claimant required

cash.

BWC attempts to disassociate itself from Chase and its fees. BWC claims

any fees charged to claimants by Chase after BWC disburses the funds to Chase

are not attributed to anything BWC did or did not do. Therefore, BWC argues, it

cannot be said that BWC is exacting any fee from or shifting any cost to workers'

compensation claimants.

BWC argues Chase is not its agent for the purpose of distribution of benefit

payments and therefore, Chase was free to charge whatever fees it wanted. The

Agency Agreement, quite apart from its name, demonstrates a classic principal and

agent relationship between the two. Revised Code 4123.311(A)(3) permits BWC to

contract with "an agent" to supply debit cards for claimants to access benefit

payments and allows that "agent" to credit debit cards by electronic transfer. BWC

did exactly that with Chase. As a result, any fees charged by Chase are in reality

an income stream BWC is permitting its agent to receive as compensation for doing

BWC's work of distributing benefit payments to claimants. The Agency Agreement

e'xpressly adopts Chase's transaction fee structure. Those fees were approved by

BWC in this contract.

10

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The parties agree that EBT claimants were required to activate the debit

cards in order to access their benefits. BWC claims that after it disburses funds to

Chase for deposit into claimants' debit card accounts, the relationship between

Chase and the claimants is governed by a separate agreement entered into by the

bank and each individual. Morgan Affidavit, parag. 6, 8. BWC argues that by

choosing the debit card option and activating a debit card instead of direct deposit

into a checking account, a claimant necessarily agrees to the terms and conditions

set by Chase. As described by Chase's Tracy Dangott, "They have to activate the

card which then binds them to the terms and conditions we put forth to them before

any charges are made." Dangott Depa., p. 99.

This argument suggests an arrangement akin to a contract of adhesion was

imposed on EBT claimants. A contract of adhesion is a standardized form contract

prepared by one party and offered to the weaker party, usually a consumer, who

has no realistic choice as to the terms. Taylor Bldg. Corp. of Am. v. Benfield, 117

Ohio St. 3d 352 (2008) citing Black's Law Dictionary (81h Ed. 2004) at 342. BWC

mandated the EFT and EBT programs, chose Chase as the bank to implement the

program, but now argues that it has no control over the disbursements after BWC

money is transferred to Chase to pay benefits under the EBT program. Chase was

an agent of BWC, however, and BWC cannot disclaim the actions of Chase as if

they were the actions of a separate, independent party. BWC was aware of

Chase's terms; it signed the Agency Agreement with Chase to issue EBT cards and

credit payments to claimants' accounts. In order to access their funds, however,

claimants had to activate their EBT cards by agreeing to Chase's terms. If an EBT

11

claimant did not agree to the terms and conditions he would have to forego his

worker's compensation payments, as the BWC no longer issued paper checks.

Claimants had no realistic choice other than to accept the terms provided to them

by the BWC and Chase.

If a claimant objected to those terms, he would be unable to access his funds

unless the BWC would agree to issue traditional paper checks to a claimant as a

hardship exception. Because BWC so rarely offered hardship exceptions to the

EBT program, BWC officials deposed in this action could not confirm that receiving

a paper check was even an available option or describe what would be required by

BWC to agree to issue paper checks. Morgan Depa., p. 16-20; Manderson Depa.,

pp. 49, 51.

Chase has earned revenue from fees, and as pointed out by BWC, "Chase

receives the majority of compensation from this program from sources other than

fees." Further, BWC has saved more than $4.6 million yearly from implementing

this program. With both parties benefitting so greatly from this agreement, it is

unconscionable that claimants were charged fees for access to their funds.

BWC also argues Chase was not its agent under R.C. 4123.311(A)(3) but

rather was a financial institution that RC. 4123.311(A}(4) authorized it to contract

with to accomplish electronic benefit payments. That Chase was a financial

institution referred to by the latter statute did not prevent it from being any agent of

BWC under division (A)(3) of the statute. Whatever semantical attractiveness that

argument may have, it does not change the basic features of the Agency

Agreement between BWC and Chase.

12

BWC's electronic benefit program violates R. C. 4123. 67 as well. This statute

prohibits general creditors from reaching a claimant's benefits before they are paid

to the claimant. The only exceptions to that statute recognized by Ohio court

decisions are child support payments and attorneys' fees for lump-sum payments.

Exceptions to §4123.67 have been carved out for child support under RC. 3119.80-

81, 3121.02-03, and 3123.06. See, e.g., Ruttman v. Flores, 1994 Ohio App. LEXIS

5362 (8th Dist. 1994); Rowan v. Rowan, 72 Ohio St. 3d 486 (1995).

The detail above recounting Cirino's struggle to access benefits with a

second Chase teller transaction in one month to obtain his second bi-weekly $886

benefit demonstrates the violation. The attempt to make that withdrawal caused a

$5 fee to be immediately subtracted from the debit card's balance leaving only $881

in benefits remaining. The Agency Agreement permitted Chase to extract that fee

from Cirino's benefits in his attempt to obtain them and therefore BWC is

responsible for its agent, Chase, having the ability and permission to receive the fee

prior to payment of the benefits.

Cirino alleges BWC exceeded its authority under these statutory provisions

because it permitted its agent Chase Bank to charge fees out of claimants' benefit

payments for certain access to their money.

Cirino claims BWC was unjustly enriched by the electronic benefit program.

BWC denies this claim pointing out that only Chase received the fees, but the net

effect of the program was BWC avoiding millions in expense in issuing checks by

outsourcing this function to Chase and permiting the bank to exact transaction fees

when claimants under certain circumstances attempted to obtain their benefits.

13

Unjust enrichment is another way to characterize the net effect of BWC's improper

shift of administrative expenses to claimants in violation of RC. 4123.341 . . BWC argues that it did not violate RC. 4123.341, because 1) banking-

related expenses are not "administrative costs" as that term is used in the statute;

and 2) the fees charged by Chase are not imposed or collected by BWC. BWC

argues that because these bank fees are not incident to the discharge of its duties,

they cannot be considered administrative fees in violation of RC. 4123.341 and

cites Northwestern Ohio Bldg. & Constr. Trades Council v. Conrad, 92 Ohio St.3d

282 (2001).

The holding of Northwestern does not apply to the facts of this case. In

Northwestern, the Court was asked to determine the constitutionality of using the

state insurance fund ("SIF") to pay the administrative fees for a new, non-

administrative activity. The dispute revolved around the interpretation of a statute

that required BWC to create a new service in addition to its normal duties and

activities. The Supreme Court was careful to note that this new service was

statutorily required to use the SIF, as are traditional BWC administrative expenses

such as the distribution of claimants' benefits. The distribution of claimants' funds is

exactly the type of administrative duty at the heart of Cirino's claims. It is not

relevant that the statute enabling the EBT program did not contemplate the potential

payment of bank fees by claimants. The legislature may have omitted language

regarding bank fees because the pilot program did not charge any fees to

claimants, or because the legislature recognized that the delivery of benefits is a

core administrative function of BWC. It may be true that banking has not been a

14

historic function of BWC, but when BWC elected to mandate the EBT payment

system for certain claimants, banking became part of BWC's core administration

function.

The Court finds that there is no genuine issue of any material fact. Based on

the undisputed evidence and even though the evidence is construed most strongly

in favor of BWC, reasonable minds could come to but one conclusion and that is

that for the reasons set forth herein, Cirino is entitled under Civ. R. 56 to judgment

as a matter of law against BWC on his claims finding statutory and constitutional

violations; entitling him and similarly-situated workers compensation claimants to

receive the balance of their benefit payments equal to the amount of bank fees

deducted by Chase from their benefits; and justifying injunctive relief and

declaratory judgment as below.

Ill. Relief to which plaintiff (plaintiff class) is entitled

a. Restoration of benefits as yet unpaid.

Cirino alleges that he is entitled to unjust enrichment, restitution,

disgorgement, and other equitable relief under Counts One, Two and Three of the

complaint. . Ohio courts allow money that was collected or withheld wrongfully by the

government to be recovered under a theory of equity. Santos v. Ohio Bur. Workers'

Comp., 101 Ohio St. 3d 74 (2004). There are three requirements to satisfy an order

of unjust enrichment against the government: 1) there was a benefit conferred to

the government; 2) there was knowledge by the government of the benefit; 3) the

government retained the benefit when it was unfair. Lycan v. Cleveland, 201 O­

Ohio-6021 (8th Dist.); Grey v. Walgreen Co., 2011-0hio-6167, ,r 20 (8th Dist.).

15

The same rules apply against a non-government party and the same purpose of

unjust enrichment prevails, to restore an aggrieved party to the status quo. Aviation

Sa/es, Inc. v. Select Mobile Homes, 48 Ohio App. 3d 90 (Mont. Cty. 1988).

Cirino satisfies these three elements. Chase Bank, as an agent of BWC,

collected almost $1.5 million during the above-described period from claimant

accounts, and BWC benefitted through savings of more than $4.5 million a year

from eliminating mailed paper checks to claimants. BWC knew that it would

experience significant savings from the electronic payment program and that BWC

cl.aimants could be charged to access their benefits. Despite this knowledge, BWC

failed to negotiate a contract with Chase that would eliminate fees to claimants for

basic access to their benefit payments. This occurred even though BWC officials

recognized that this could be burdensome for some claimants receiving as they did

two monthly benefit payments.

Each of the theories advanced by Cirino, that is, equitable restitution, unjust

enrichment and disgorgement, is a valid basis under Ohio law to require BWC to

complete the payment of claimants' benefits, or put another way, restore the part of

those benefits deducted by Chase. The Court finds no significant difference among

unjust enrichment, restitution, or disgorgement as the theory or legal basis for

money recovery from BWC.

b. Failure to mitigate loss is no defense

BWC attempts to place responsibility on Cirino for incurring Chase's fees by

arguing that he failed to mitigate his damages by declining to participate in the EFT

program and then later failed to access his money in a manner that would allow him

16

to avoid bank fees. This argument ignores the constitutional and statutory

administrative duty of BWC to deliver benefit payments to injured workers and

shoulder the administrative costs of the program. BWC placed the claimants in this

situation by mandating the program and then failing to negotiate an agreement with

Chase that prohibited it from charging fees. Under the undisputed material

evidence on this point, BWC's mitigation defense does not apply.

c. Declaratory judgment and injunctive relief should issue

Cirino alleges that he is entitled to a judgment establishing and declaring that

BWC's EBT program as implemented to permit the bank to charge access fees

violates Ohio law and is unenforceable. Consistent with R.C. 4123.341, the Court

finds and declares the fees, as listed on the "Chase Electronic Payment Card

Account Fee Schedule," attached to the Agency Agreement of January 4, 2007 and

its successor version of 2012, to be "administrative costs ... incident to the

discharge of the duties and performance of the activities of ... the bureau." The

Court further finds and declares that each member of the plaintiff class having had

Chase fees deducted from his or her benefits is entitled to restoration from BWC of

the as-yet unpaid portion of such benefits. BWC is ordered to pay plaintiff and his

similarly-situated fellow claimants amounts equal to the fees deducted by Chase as

access fees in the EBT program.

IV. CONCLUSION

The Bureau of Worker's Compensations' motion for summary judgment is

denied. The Court could not conclude under the required Civ. R 56(C) analysis that

BWV was entitled to judgment in its favor on the undisputed facts.

17

Cirino's motion for summary judgment is granted. Judgment is granted for

Plaintiff Michael Cirino and against Defendant Bureau of Worker's Compensation

upon all counts of his complaint as such judgment is described above.

The amount of plaintiffs unp;3id benefits, i.e., bank fees deducted from his

benefits, shall be calculated after hearing. Similar hearings will be required for all

similarly situated claimants in the plaintiff class. Hearing on money amounts due to

Plaintiff and the plaintiff class of claimants set for March 28, 2016 at 9 a.m. in

Courtroom 16-B.

Under Civ. R. 54(8), the Court expressly determines that there is no just

reason for delay should an interlocutory appeal of this order be pursued.

IT IS SO ORDERED.

J;muary 13, 2016

JANET R. B

Copies sent to all record counsel by U.S. mail.

18

Ohio Rev. Code 2743.02 State waives immunity from liability.

(A)

(1) The state hereby waives its immunity from liability, except as provided for the office of the state fire marshal in division (G)(1) of section 9.60 and division (B) of section 3737.221 of the Revised Code and subject to division (H) of this section, and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties, except that the determination of liability is subject to the limitations set forth in this chapter and, in the case of state universities or colleges, in section 3345.40 of the Revised Code, and except as provided in division (A)(2) or (3) of this section. To the extent that the state has previously consented to be sued, this chapter has no applicability.

Except in the case of a civil action filed by the state, filing a civil action in the court of claims results in a complete waiver of any cause of action, based on the same act or omission, that the filing party has against any officer or employee, as defined in section 109.36 of the Revised Code. The waiver shall be void if the court determines that the act or omission was manifestly outside the scope of the officer’s or employee’s office or employment or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.

(2) If a claimant proves in the court of claims that an officer or employee, as defined in section 109.36 of the Revised Code, would have personal liability for the officer’s or employee’s acts or omissions but for the fact that the officer or employee has personal immunity under section 9.86 of the Revised Code, the state shall be held liable in the court of claims in any action that is timely filed pursuant to section 2743.16 of the Revised Code and that is based upon the acts or omissions.

(3)

(a) Except as provided in division (A)(3)(b) of this section, the state is immune from liability in any civil action or proceeding involving the performance or nonperformance of a public duty, including the performance or nonperformance of a public duty that is owed by the state in relation to any action of an individual who is committed to the custody of the state.

(b) The state immunity provided in division (A)(3)(a) of this section does not apply to any action of the state under circumstances in which a special relationship can be established between the state and an injured party. A special relationship under this division is demonstrated if all of the following elements exist:

EXHIBIT 6

(i) An assumption by the state, by means of promises or actions, of an affirmative duty to act on behalf of the party who was allegedly injured;

(ii) Knowledge on the part of the state’s agents that inaction of the state could lead to harm;

(iii) Some form of direct contact between the state’s agents and the injured party;

(iv) The injured party’s justifiable reliance on the state’s affirmative undertaking.

(B) The state hereby waives the immunity from liability of all hospitals owned or operated by one or more political subdivisions and consents for them to be sued, and to have their liability determined, in the court of common pleas, in accordance with the same rules of law applicable to suits between private parties, subject to the limitations set forth in this chapter. This division is also applicable to hospitals owned or operated by political subdivisions that have been determined by the supreme court to be subject to suit prior to July 28, 1975.

(C) Any hospital, as defined in section 2305.113 of the Revised Code, may purchase liability insurance covering its operations and activities and its agents, employees, nurses, interns, residents, staff, and members of the governing board and committees, and, whether or not such insurance is purchased, may, to the extent that its governing board considers appropriate, indemnify or agree to indemnify and hold harmless any such person against expense, including attorney’s fees, damage, loss, or other liability arising out of, or claimed to have arisen out of, the death, disease, or injury of any person as a result of the negligence, malpractice, or other action or inaction of the indemnified person while acting within the scope of the indemnified person’s duties or engaged in activities at the request or direction, or for the benefit, of the hospital. Any hospital electing to indemnify those persons, or to agree to so indemnify, shall reserve any funds that are necessary, in the exercise of sound and prudent actuarial judgment, to cover the potential expense, fees, damage, loss, or other liability. The superintendent of insurance may recommend, or, if the hospital requests the superintendent to do so, the superintendent shall recommend, a specific amount for any period that, in the superintendent’s opinion, represents such a judgment. This authority is in addition to any authorization otherwise provided or permitted by law.

(D) Recoveries against the state shall be reduced by the aggregate of insurance proceeds, disability award, or other collateral recovery received by the claimant. This division does not apply to civil actions in the court of claims against a state university or college under the circumstances described in section 3345.40 of the Revised Code. The collateral benefits provisions of division (B)(2) of that section apply under those circumstances.

(E) The only defendant in original actions in the court of claims is the state. The state may file a third-party complaint or counterclaim in any civil action, except a civil action for ten thousand dollars or less, that is filed in the court of claims.

(F) A civil action against an officer or employee, as defined in section 109.36 of the Revised Code, that alleges that the officer’s or employee’s conduct was manifestly outside the scope of the officer’s or employee’s employment or official responsibilities, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner shall first be filed against the state in the court of claims that has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code and whether the courts of common pleas have jurisdiction over the civil action. The officer or employee may participate in the immunity determination proceeding before the court of claims to determine whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code.

The filing of a claim against an officer or employee under this division tolls the running of the applicable statute of limitations until the court of claims determines whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code.

(G) If a claim lies against an officer or employee who is a member of the Ohio national guard, and the officer or employee was, at the time of the act or omission complained of, subject to the “Federal Tort Claims Act,” 60 Stat. 842 (1946), 28 U.S.C. 2671, et seq., the Federal Tort Claims Act is the exclusive remedy of the claimant and the state has no liability under this section.

(H) If an inmate of a state correctional institution has a claim against the state for the loss of or damage to property and the amount claimed does not exceed three hundred dollars, before commencing an action against the state in the court of claims, the inmate shall file a claim for the loss or damage under the rules adopted by the director of rehabilitation and correction pursuant to this division. The inmate shall file the claim within the time allowed for commencement of a civil action under section 2743.16 of the Revised Code. If the state admits or compromises the claim, the director shall make payment from a fund designated by the director for that purpose. If the state denies the claim or does not compromise the claim at least sixty days prior to expiration of the time allowed for commencement of a civil action based upon the loss or damage under section 2743.16 of the Revised Code, the inmate may commence an action in the court of claims under this chapter to recover damages for the loss or damage.

The director of rehabilitation and correction shall adopt rules pursuant to Chapter 119. of the Revised Code to implement this division.

Ohio Rev. Code 2743.03 Court of claims.

(A)

(1) There is hereby created a court of claims. The court of claims is a court of record and has exclusive, original jurisdiction of all civil actions against the state permitted by the waiver of immunity contained in section 2743.02 of the Revised Code and exclusive jurisdiction of the causes of action of all parties in civil actions that are removed to the court of claims. The court shall have full equity powers in all actions within its jurisdiction and may entertain and determine all counterclaims, cross-claims, and third-party claims.

(2) If the claimant in a civil action as described in division (A)(1) of this section also files a claim for a declaratory judgment, injunctive relief, or other equitable relief against the state that arises out of the same circumstances that gave rise to the civil action described in division (A)(1) of this section, the court of claims has exclusive, original jurisdiction to hear and determine that claim in that civil action. This division does not affect, and shall not be construed as affecting, the original jurisdiction of another court of this state to hear and determine a civil action in which the sole relief that the claimant seeks against the state is a declaratory judgment, injunctive relief, or other equitable relief.

(3) In addition to its exclusive, original jurisdiction as conferred by divisions (A)(1) and (2) of this section, the court of claims has exclusive, original jurisdiction as follows:

(a) As described in division (F) of section 2743.02, division (B) of section 3335.03, and division (C) of section 5903.02 of the Revised Code;

(b) Under section 2743.75 of the Revised Code to hear complaints alleging a denial of access to public records in violation of division (B) of section 149.43 of the Revised Code, regardless of whether the public office or person responsible for public records is an office or employee of the state or of a political subdivision.

(B) The court of claims shall sit in Franklin county, its hearings shall be public, and it shall consist of incumbent justices or judges of the supreme court, courts of appeals, or courts of common pleas, or retired justices or judges eligible for active duty pursuant to division (C) of Section 6 of Article IV, Ohio Constitution, sitting by temporary assignment of the chief justice of the supreme court. The chief justice may direct the court to sit in any county for cases on removal upon a showing of substantial hardship and whenever justice dictates.

(C)

(1) A civil action against the state shall be heard and determined by a single judge. Upon application by the claimant or the state, the chief justice of the supreme court may

assign a panel of three judges to hear and determine a civil action presenting novel or complex issues of law or fact. Concurrence of two members of the panel is necessary for any judgment or order.

(2) Whenever the chief justice of the supreme court believes an equitable resolution of a case will be expedited, the chief justice may appoint magistrates in accordance with Civil Rule 53 to hear the case.

(3) When any dispute under division (B) of section 153.12 of the Revised Code is brought to the court of claims, upon request of either party to the dispute, the chief justice of the supreme court shall appoint a single referee or a panel of three referees. The referees need not be attorneys, but shall be persons knowledgeable about construction contract law, a member of the construction industry panel of the American arbitration association, or an individual or individuals deemed qualified by the chief justice to serve. No person shall serve as a referee if that person has been employed by an affected state agency or a contractor or subcontractor involved in the dispute at any time in the preceding five years. Proceedings governing referees shall be in accordance with Civil Rule 53, except as modified by this division. The referee or panel of referees shall submit its report, which shall include a recommendation and finding of fact, to the judge assigned to the case by the chief justice, within thirty days of the conclusion of the hearings. Referees appointed pursuant to this division shall be compensated on a per diem basis at the same rate as is paid to judges of the court and also shall be paid their expenses. If a single referee is appointed or a panel of three referees is appointed, then, with respect to one referee of the panel, the compensation and expenses of the referee shall not be taxed as part of the costs in the case but shall be included in the budget of the court. If a panel of three referees is appointed, the compensation and expenses of the two remaining referees shall be taxed as costs of the case.

All costs of a case shall be apportioned among the parties. The court may not require that any party deposit with the court cash, bonds, or other security in excess of two hundred dollars to guarantee payment of costs without the prior approval in each case of the chief justice.

(4) An appeal from a decision of the attorney general pursuant to sections 2743.51 to 2743.72 of the Revised Code shall be heard and determined by the court of claims.

(D) The Rules of Civil Procedure shall govern practice and procedure in all actions in the court of claims, except insofar as inconsistent with this chapter. The supreme court may promulgate rules governing practice and procedure in actions in the court as provided in Section 5 of Article IV, Ohio Constitution.

(E)

(1) A party who files a counterclaim against the state or makes the state a third-party defendant in an action commenced in any court, other than the court of claims, shall file a petition for removal in the court of claims. The petition shall state the basis for removal, be accompanied by a copy of all process, pleadings, and other papers served upon the petitioner, and shall be signed in accordance with Civil Rule 11. A petition for removal based on a counterclaim shall be filed within twenty-eight days after service of the counterclaim of the petitioner. A petition for removal based on third-party practice shall be filed within twenty-eight days after the filing of the third-party complaint of the petitioner.

(2) Within seven days after filing a petition for removal, the petitioner shall give written notice to the parties, and shall file a copy of the petition with the clerk of the court in which the action was brought originally. The filing effects the removal of the action to the court of claims, and the clerk of the court where the action was brought shall forward all papers in the case to the court of claims. The court of claims shall adjudicate all civil actions removed. The court may remand a civil action to the court in which it originated upon a finding that the removal petition does not justify removal, or upon a finding that the state is no longer a party.

(3) Bonds, undertakings, or security and injunctions, attachments, sequestrations, or other orders issued prior to removal remain in effect until dissolved or modified by the court of claims.