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Insight and Information on Louisiana Law, Litigation, and Legal Culture.

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Facebook Unfriending is Bullying in Oz?

Posted in Labor and Employment Law


By A. Edward Hardin, Jr.

Friending someone on Facebook, more importantly –unfriending them, may have unintended consequences in the land down under.  As reported at CNET.com, the Australia Fair Work Commission recently found that “unfriending” a co-worker on Facebook was considered bullying.  In addition to the Facebook unfriending, the unfriended and aggrieved employee also complained of more than a dozen other alleged offensive incidents and actions over the prior three years.  In finding for the aggrieved employee, the Commission found that the offending co-employees actions lacked “emotional maturity” and were “indicative of unreasonable behavior.”


Proposed WAGE Act: Employers Beware

Posted in Labor and Employment Law


by Erin L. Kilgore

It’s not yet Halloween, but employers may have cause to be afraid.

Last week, Sen. Patty Murray (D-Wash.) and Rep. Bobby Scott (D-Va.) introduced the “Workplace Action for a Growing Economy Act” (“WAGE Act”) to amend the National Labor Relations Act.  According to a fact sheet published about the Act, the WAGE Act aims to “strengthen protections for workers who want to organize and promote change through forming a union or other collective action.”

In addition, the fact sheet explains that, if enacted, the WAGE Act would strengthen protections for workers by:

  • Tripling the back pay that employers must pay to workers who are fired or retaliated against by their employers, regardless of immigration status.
  • Providing workers with a private right of action to bring suit to recover monetary damages and attorneys’ fees in federal district court, just as they can under civil rights laws.
  • Providing for federal court injunctions to immediately return fired workers to their jobs.
  • Ensuring employers will be jointly responsible for violations affecting workers supplied by another employer.

The WAGE Act would also establish civil penalties up to $50,000 for employers who commit unfair labor practices, impose doubled penalties for repeat violations, expose individual officers and directors to penalties for NLRA violations, and effect other changes to the NLRA.

Additional information regarding the WAGE Act can be found here.

For now, employers must watch and wait.

What Do Drones, the U.S. Open, September 11, and the National Association of Realtors Have in Common?

Posted in Real Estate


By Elisabeth Q. Prescott

This year’s U.S. Open has brought its fair share of excitement on the court.  The sport’s beloved Serena Williams, who was just two matches away from being only the fourth female to complete a calendar grand slam, was eliminated by an unranked Italian player, and an potential showdown between tennis’ rock stars Novak Djokovic and Roger Federer make this year’s tournament one for the record books.  Perhaps more notably, the tournament has seen much entertainment off the court, from Jimmy Fallon and Justin Timberlake’s dance tribute to Beyonce’s All the Single Ladies to fans booing current GOP presidential front-runner, Donald Trump.  While celebrity sightings at the tournament are somewhat expected, drone sightings are not.

In the opening week of the U.S. Open, a small, privately-owned drone crashed into open seats inside Arthur Ashe stadium, reigniting in the media conversations over private-sector use of drones and, in light of the fourteenth anniversary of September 11th, security concerns.  To say that September 11th is fresh for most Americans is an understatement. In fact, since September 11th, dialogue regarding terrorism concerns is no longer left to high-ranking public officials; rather, those concerns have permeated the typical American living room. With certain national organizations advocating for increased private-sector (particularly commercial) use of drones, we can expect that citizens’ groups having an interest in ensuring that individuals’ security and privacy concerns are properly balanced will take notice and will join the dialogue.

One of those national organizations advocating for integrating commercial use of drones in the National Air Space (NAS) is the National Association of Realtors.  On September 10, 2015, ironically one day before the anniversary of the 9-11 event, testimony of the NAR’s president, Chris Polychron, was taken by a House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet at a hearing on “Unmanned Aerial Vehicles: Commercial Applications and Public Policy Implications.”  In his testimony, Mr. Polychron highlighted that:

“the potential applications for UAS [unmanned aircraft systems] technology in the real estate industry are plentiful and growing.  They provide the opportunity for real estate practitioners to take unique and informative photographs and videos of properties that in many cases would require many time-consuming trips, or even using a helicopter or small plane to obtain.  Using UAS technology to do the same thing is less expensive, less time consuming, and less dangerous to everyone involved.”


“UAS technology will be an important tool especially for commercial real estate practitioners who work with these types of properties, such as shopping centers, office parks, parking structures or large tracts of land which can’t easily be captured in a single image.”

 Mr. Polychron readily acknowledged the reality that increased private-sector use of drones brings increased concerns regarding security and the protection of privacy.  In so doing, Mr. Polychron addressed, with the House Judiciary Subcommittee, NAR’s interaction with both the Federal Aviation Administration (FAA) and the National Telecommunications and Information Administration (NTIA), and the work of these groups to develop industry-wide standards for best practices, including security and privacy protection practices to allow for broader commercial use in the real estate industry.

Currently, commercial use of drones is prohibited unless a “Section 333” waiver has been obtained from the FAA.  However, earlier this year, the FAA took steps, through the FAA Modernization and Reform Act of 2012, towards more easily integrating drones for commercial use by releasing proposed rulemaking on integrating small UAS for commercial use into the NAS.  According to Mr. Polychron, “[t]his is the first step toward a regulatory environment where commercial drone use is legal and has prescribed federal guidelines.”

The use of drones in the real estate industry may be as exciting to real estate practitioners as a Djokovic-Federer U.S. Open match-up is to tennis lovers (or a Timberlake tribute to Beyonce is to SNL faithfuls).  Whether the ultimate regulatory regime, in which commercial use of drones is integrated, successfully balances security and privacy concerns remains to be seen.  Stay tuned.

Labor Day 2015: Employers Must Reflect on the NLRB’s Recent Activity, Too

Posted in Labor and Employment Law


By Erin Kilgore

It has been a busy year for the National Labor Relations Board.  Many employees celebrated Labor Day with a long weekend and a shorter work week.  However, employers also must reflect on the NLRB’s recent activity and consider the impact of such activity on their policies and procedures.  Of particular interest to employers, the NLRB’s recent actions included decisions and pronouncements related to the following:

  • Employee use of employer e-mail systems: In its “Purple Communications” decision, the NLRB found that, if employers decide to give employees access to company e-mail systems, employers must also allow employees to use e-mail for statutorily-protected communications during non-working time.   This includes e-mails among employees related to union organizing or joining together to bring grievances against the employer and marks a break from prior NLRB decisions.  According to the NLRB, an employer e-mail system cannot be restricted to work matters, absent a showing of “special circumstances.”  The decision did not apply to “any other electronic communications systems” other than e-mail.  Therefore, at this time, “business use only” restrictions on the use of company telephones, instant messaging, and other messaging systems are outside the scope of the Purple Communications decision and are still lawful in the eyes of the NLRB.  The NLRB also stressed that the decision did not prevent employers from monitoring their computer and e-mail systems for legitimate management and business reasons, such as ensuring productivity and preventing e-mail use for purposes of harassment or other activities that could give rise to employer liability.
  • Scrutiny of Employee Handbooks: In 2015, the NLRB General Counsel issued a memorandum regarding the NLRB’s rulings related to many common employee handbook policies in non-unionized workplaces, including policies related to confidentiality, standards of conduct, social media, disparagement, communications with third-parties, and conflicts of interest.  In many cases, the NLRB found the policies overbroad and unlawful because employees could “reasonably interpret” the policy or rule at issue to prohibit protected activity under the National Labor Relations Act.   The General Counsel’s memorandum is consistent with the NLRB’s prior scrutiny of such policies and continues the NLRB’s trend of invalidating common employer policies.
  • Joint Employers: The NLRB refined its standard for determining joint employer status.  As the NLRB explained in a recent press release the Board found that two or more entities are joint employers of a single workforce if:  (1) they are both employers within the meaning of the common law;  and (2) they share or co-determine matters governing the essential terms and conditions of employment.  In assessing  whether an employer possesses sufficient control over employees to qualify as a “joint employer,” the NLRB will (among other factors) evaluate whether an employer has exercised control over the terms and conditions of employment indirectly through an intermediary or whether it reserved the authority to do so.

As employers look ahead to year-end, employers should review current employment policies, manuals, and handbooks in light of the NLRB’s (and the other federal agencies) flurry of activity in the past year and consider revising and updating their policies to ensure compliance with the NLRB’s rulings and guidance issued this year.  Employers must also be mindful of the NLRB’s rulings in applying employment policies.

Airline Dispute Highlights Religious Accommodation Issues

Posted in Labor and Employment Law


By A. Edward Hardin, Jr.

A recent CNN article highlights the need for employers to consider employees’ religious accommodation requests.  Charee Stanley is a Muslim and a flight attendant for ExpressJet Airlines.  As a Muslim, Stanley is prohibited from both drinking alcoholic beverages and serving alcoholic beverages, including serving passengers on flights while working as a flight attendant.  At her supervisor’s suggestion, Stanley and another flight attendant arranged for the second flight attendant to serve any alcoholic beverages to any of the airlines passengers.  Approximately 3 months later, a third flight attendant complained because Stanley was allegedly not performing all her duties because she was not serving alcohol to passengers.  Thereafter, the accommodation was revoked, Stanley was suspended, and Stanley filed a discrimination charge with the U.S. Equal Employment Opportunity Commission.  Although the reported facts were a little thin, the article was brief, and the EEOC charge is currently pending, the article nevertheless serves as a reminder for employers that they must consider employees’ religious accommodation requests.  A link to the full CNN article can be found here.


Louisiana Secretary of State Issues Advisory Notice to All Louisiana Business Owners

Posted in Business and Corporate, Louisiana In General


By Meg Kaul

The Louisiana Secretary of State recently issued an advisory notice to all Louisiana business owners regarding certain postcards that were sent to business owners warning that they may have “potential compliance violations.” The postcards were sent by a company called Business Compliance Division, which is not affiliated or associated with the Louisiana Secretary of State’s office or any other Louisiana state office in any way.  It is a private company that has apparently sent similar solicitations in other states over the past few months. Louisiana businesses are not required to call or have any dealings with this company. Therefore, if you receive a postcard from this company, you are encouraged to discard it immediately.

The Louisiana Secretary of State’s office offers an email notification system aimed at protecting Louisiana business owners from fraud and identity theft.  Anyone can subscribe to this system which generates messages regarding changes to commercial entities, non-governmental correspondence, office closures and most importantly, warnings involving possible fraudulent activity.

For more information on the Secretary of State’s office, visit www.sos.la.gov or contact a Commercial Division staff member at 225.925.4704 or commercial@sos.la.gov.


Legal Considerations for Cell Tower Leasing and Servitude Sales in Louisiana

Posted in Business and Corporate, Louisiana In General


by Mark D. Mese

As an attorney who owns properties covered by a cell tower lease, and who represents landowners in leases and servitude agreements with cell tower companies and cell tower consolidators, I have noticed increased interest in new leases, lease extensions and buyouts. While the financial terms of agreements covering cell towers are important, the effect on the value of the underlying property is often the most important consideration.

Landowners negotiating leases or servitude sales (buyouts) with tower companies or consolidators should consider the effect of these agreements on the landowner’s ability to use the land. The leases and buyouts will affect not only the actual land covered by the tower and its footprint, but may include nearby land within specific distances of the tower.

The lease and buyout forms we have seen favor the tower companies and the consolidators. Leases drafted by consolidators, who sell packages of cell tower leases and servitudes to tower companies, may be more one-sided than tower company leases to facilitate the consolidator’s acquisition loans needed to pay for the cell towers and related leases or servitudes. Many current cell tower and consolidator form leases and buyout agreements impose extremely onerous termination conditions on Landlords to protect consolidator lenders.

Louisiana is a civil law jurisdiction, and terminology for leases and servitudes can be confusing and may cause title problems for landowners. Obtaining a lawyer familiar with cell tower leases, servitudes and Louisiana civil law should be a priority for any landowner in Louisiana considering leasing, extending a lease or selling a servitude to a cell tower company or a consolidator.



Recent Developments Regarding the Business Utilities Tax Payments and Taxpayer’s Rights to Protest

Posted in Business and Corporate, Louisiana Electric Utility Regulation, Louisiana In General, State and Local Taxation

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By Chris Dicharry and Jason Brown

As is now widely known, the Louisiana Legislature has adopted HCR No. 8, which purports to suspend the sales tax exemptions business utilities effective July 1, 2015. On July 1, 2015, the Louisiana Chemical Association (“LCA”) filed a declaratory judgment proceeding attacking the validity of HCR No. 8. The Legislature and the Louisiana Department of Revenue (the “LDR”) have contested the right of LCA to bring the suit on behalf of its members. The LCA suit was amended to add affected taxpayers as parties to the suit.

Kean Miller LLP advises affected taxpayers to make payment of the tax under protest and file suit within thirty days of the protest letter to the LDR in order to obtain optimum protection of your interests. While Louisiana law does allow for protest suits to be filed with the Louisiana Board of Tax Appeals (“BTA”), it is not clear that the BTA has jurisdiction over cases involving constitutional issues. Accordingly, it is recommended that the suit be filed in the 19th Judicial District Court rather than the BTA.

Since the LCA lawsuit was filed, the LDR has issued a statement discouraging payments under protest. In Statement of Acquiescence No. 15-001 (August 13, 2015), the LDR states:

Pending the outcome of the Lawsuit, taxpayers may pay the sales taxes, as they become due and then file an administrative claim for refund under La. R.S. 47:1621 utilizing the Louisiana Department of Revenue Claim for Refund of Overpayment Form (R-20127). If a final, non-appealable judgment is issued by a court of competent jurisdiction declaring HCR No. 8 to be unconstitutional, then LDR will acquiesce that the sales tax payments made pursuant to HCR No. 8 are overpayments within the meaning of La. R.S. 47:1621 regardless of whether the taxpayer initiated its own lawsuit or paid under protest.  All claims for refund must be filed in accordance with the prescriptive period imposed by La. R.S. 47:1623.

It is very likely that the LDR is acting in good faith and attempting to ease the administrative burden of protests for both taxpayers and the LDR. This type of statement by the LDR is not fully binding on the LDR, however. The statement issued by the LDR states that it “is not binding on the public, but is binding on the Department unless superseded by a later [Statement], declaratory ruling, rule, statute, or court case.”

That is, the LDR’s position could change, particularly if a court ruled that payment under protest was the proper procedure. Accordingly, it is strongly recommended that taxpayers pay disputed taxes under protest as previously recommended. Protested taxes must be segregated by the LDR so that they can be promptly refunded.

Taxpayers who wish to preserve the right to a refund of the business utilities sales tax should pay under protest. Failure to protest payments may preclude the eventual refund of sales taxes paid even if the court determines that the tax is invalid. Additionally, taxpayers who do not protest and who are able to get the taxes returned may not receive interest on the returned taxes and may need to get an appropriation from the Legislature before the taxes are returned.


Hollywood South Legal: Clearing Your Script

Posted in Film and Entertainment, Intellectual Property


by Meg Kaul

* This article originally appeared in Issue 3, 2015 of Louisiana Film & Video magazine. 

If you’ve written a script recently, it may have references to certain copyrighted or trademarked material — the hero reaches for his iPhone, takes a sip of a Coca-Cola or leaps into her new Range Rover. If these products are mentioned, used or displayed on the screen, you should consult with an attorney to obtain permission from the owners of the trademarked or copyrighted products before you use them in your production.  If you cannot get permission from these  owners, you may be able to display the products without the brand packaging.  For example, you may blur the items from the scene, or remove them entirely if you have not begun to shoot the film.

Entertainment attorneys, or script clearance companies, will perform what is commonly referred to as a “script clearance,” or a search of your script to identify all materials or references that may represent possible legal conflicts if used in your film.  A script clearance will recognized and report items such as character names, locations and signs, products and brand names, defamatory references, and even seemingly harmless items like artwork, music and photographs.

Your attorney should review the results, and work with you to contact the owners of the “famous” materials to obtain permission and secure any required licenses. There is no “magic path” to make this happen, but you should strive to ensure that the permission has been granted by the owner, or a confirmed representative of the owner, and have the release made in writing if at all possible. You should also have authorization to use the name of any celebrities or their image and/or likeness with their agent.  If the celebrity has an active trademark in their name, you may be required to obtain rights to use their trademark. The script clearance results are important to share with your director, producer and crew, set decorators and art department, and anyone else who will be creating the set and other elements of your film.

This clearance is also important for distribution purposes.  The distributor of your film will want a guarantee that your film does not contain any materials that could have negative legal implications. These claims can range from copyright infringement to defamation of character or the need to obtain life rights from a celebrity.

If you are shooting scenes that involve brief or background views of a brand, like the display of a billboard in the background of a passing shot on the freeway, you may be able to use such footage without permission based on the concept of “fair use.” Copyright law provides the owner of a copyrighted work with certain exclusive rights, such as the right to reproduce the work, prepare derivative works or perform the work publicly. However, the fair use doctrine also provides third parties with a limited exception to use the protected materials without permission from the owner in certain circumstances. 17 U.S. Code §107 provides that it is not an infringement of copyright to use a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

In addition, even though there is no real definition of “fair use,” the following four-factor balancing test set forth in 17 U.S. Code § 107 may be used to determine whether the use outside of those stated purposes is fair. These factors include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

It is often wise to obtain (and is typically required by distributors) Errors & Omissions (“E&O”) insurance, which protects filmmakers from lawsuits pertaining to copyright infringement and other claims based on the content of a film.  Exclusions may be inserted into the coverage for copyrighted images that are not cleared or licensed.

As a general rule, if you don’t own it and want to use it in your film, you should get permission from the owner. Otherwise, you may open the theater door to lawsuits, injunctions and an uphill battle to obtaining distribution of your feature film.

* This article originally appeared in Issue 3, 2015 of Louisiana Film & Video magazine. 


Arbitration Rulings are Final, Even When the Arbitrators Get It “Wrong on the Law”

Posted in Alternative Dispute Resolution, Construction Law, Louisiana In General


By David K. Nelson*

Parties involved in the construction industry have long been familiar with mandatory arbitration as a dispute resolution procedure.

Originally arbitration was said to be more efficient and less expensive than litigation. Over time, experience has shown that arbitration is not necessarily more efficient or more timely.

Regardless of its potential benefits, one fact remains absolute – an arbitration ruling is almost always final and therefore not subject to appeal or review.  The Louisiana Supreme Court recently confirmed this fact in the case of Crescent Property Partners, LLC v. American Manufacturers Mutual Insurance Company, et al; 158 So.3d 798, 2014-C-0969 c/w 2014-C-0973 (La. 1/28/15).  In Crescent, the general contractor and its subcontractors filed motions for summary judgment with the arbitration panel alleging that plaintiff’s claims were preemptive because they were not filed within five years of the issuance of the Certificate of Occupancy.  The arbitration panel, relying upon the case of Ebinger v. Venus Construction Corporation, 10-2516 (La. 7/1/11), 65 So. 3d 1279, found that Ebinger dictated the retroactive application of the 2003 amendment to La. R.S. 9:2772 and ruled that plaintiff’s claims were untimely asserted outside the preemptive period.  The defendants filed suit in district court to confirm the arbitration ruling.  Plaintiffs opposed the filing and moved to vacate the award on the grounds that the arbitration panel ruling was not in accordance with law. The district court denied plaintiff’s application to vacate the award and confirmed the arbitration ruling the judgment of the district court.

Plaintiffs, thereafter, sought review in the Court of Appeal. The Court of Appeal reversed the trial court finding that the arbitration panel had incorrectly concluded the 2003 amendment reducing the time limitation from seven years to five years could be retroactively applied to preempt plaintiff’s claims. The general contractor and subcontractor thereafter requested the Louisiana Supreme Court to consider the issue.  The Supreme Court granted the writ “to determine whether the Court of Appeal ruling vacating the arbitration panel decision was proper.”

The Supreme Court recognized that the grounds for vacating an arbitration award are very narrow, and are limited to the exclusive grounds set forth in La. R.S. 9:4210, which provides:

In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.

  1. Where the award was procured by corruption fraud or undue means.
  2. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
  3. Where the arbitrators were guilty of misconduct and refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
  4. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and definitive award upon the subject matter submitted was not made.

The Supreme Court ruled that the Court of Appeal erred in vacating the arbitration panel’s award stating: “The upshot of both the Court of Appeal’s reasoning and the arguments of Crescent is that the panel just got it wrong on the law. We reiterate our long line of jurisprudence that an error of fact or law will not invalidate an otherwise fair and honest arbitration award.” Crescent at 808.

The takeaway from this ruling is that absent proof of dishonesty, bias, bad faith, willful misconduct, on the part of an arbitrator, the arbitration ruling will be final and not subject to appeal—even if the arbitrator gets it wrong on the law and/or facts.

* Mr. Nelson serves as the Chair of the Construction and Commercial Litigation practice group of the Louisiana Association of Defense Counsel.