Louisiana Law Blog

By Deborah J. Juneau

The Louisiana Department of Health and Hospitals (“DHH”) has settled a class action lawsuit filed on behalf of Medicaid beneficiaries receiving Long Term Personal Care Services (“LT-PCS”). The class action is pending in the U.S. District Court, Middle District of Louisiana. The presiding federal judge has issued preliminary approval of the settlement. A final approval hearing is scheduled for February 17, 2012.

The class action alleged that the reduction of maximum weekly service hours available to Medicaid beneficiaries eligible for LT-PCS services violated the Americans with Disabilities Act and sought declaratory and injunctive relief to prohibit the implementation of the reduction to service hours. The class action alleged that the LT-PCS recipients were at risk of being forced to enter a nursing home as a result of the cuts to service hours, which is exactly what the LT-PCS program was designed to prevent.

The court defined the class of plaintiffs as follows:

“Louisiana residents with disabilities who have been receiving Medicaid-funded services through the LT-PCS program; who desire to reside in the community instead of a nursing facility; who require more than 32 hours of Medicaid-funded personal care services per week in order to avoid entering a nursing facility, and who do not have available (including through family supports, shared living arrangements, or enrollment in the ADHC [Adult Day Health Care] waiver) other means of receiving personal care services.”

While the class action was pending, DHH allowed LT-PCS recipients who were receiving the maximum number of weekly service hours to request expedited access to the Community Choice Waiver Program. The Community Choice Waiver Program provides a variety of services, including personal care services, to assist beneficiaries to avoid institutional placement and to remain in their homes and communities.

As a part of the settlement, DHH has agreed to extend this option to additional class members currently approved for less than the maximum 32 hours per week of services, but who were receiving more than 32 hours per week at the time the reduction in hours became effective. DHH will offer Community Choice Waiver Program slots to class members who apply for the program, if the class members can show that, without the additional services, they would be at serious risk for institutional placement. DHH will also request approval from the federal government for an additional 200 Community Choice waiver slots. Any slots not filled by class members will be added to the pool of slots made available to those who are on the waiting list for waiver services.
 

Kean Miller LLP is pleased to announce the release of the ninth edition of the Practical Digest of Louisiana Class Action Decisions.  The digest is produced by Charles S. McCowan, Jr., Bradley C. Myers, Gerald E. Meunier (Gainsburgh, Benjamin, David, Meunier & Warshauer), and Thomas F. Daley (District Attorney of the 40th Judicial District).  The fifty page book provides a digest of Louisiana class action decisions, classification by subject matter, and classification by certification disposition.

Click here to download  a copy of the digest.  For a hard copy, please email client_services@keanmiller.com

* The digest is a compilation of certain class action decisions and it should not be construed as a complete reflection of the holdings of the cases.

By Charles S. McCowan, Jr. and Calvin C. Fayard, Jr.

Following a class action or mass joiner settlement certain funds are often unable to be distributed to individual class members.  Either class members do not come forward to file the necessary proof of claim to qualify for an allocation and distribution, the allowed claims do not equal the available settlement funds, reserves or allocations for class costs and expenses are not exhausted, distributions of monies to individual class members have been found impracticable because the amounts owing to each individual plaintiff are exceedingly small and/or calculation of the amount due each individual would be excessively difficult and costly.  In such situations, many Louisiana state and federal courts have employed the “Cy Pres doctrine,” an equitable remedy intended to put the residual funds to a worthy purpose in accordance with their availability.

Read the entire article from the December 2010/January 2011 edition of the Louisiana Bar Journal.

By Katie D. Bell

Electronic Discovery, or “E-Discovery”, is not considered the “novel issue” it once was. However, E-Discovery still presents problems that litigants and courts struggle with. Below is a summary of recent Louisiana Federal Court opinions dealing with the issues surrounding E-Discovery.

In Frees, Inc. v. McMillian, 2007 WL 184889 (W.D. La. Jan. 22, 2007), the Western District of Louisiana granted the plaintiff’s motion to compel. In an unfair competition and trade secret theft action, the plaintiff claimed that the defendant, a former employee, had stolen various data files. Plaintiff had unsuccessfully requested production of defendant’s laptop and desktop. The Court granted the motion to compel the defendant to produce these two items because they were the most likely places that the data files would be located. The Court did institute protective measures so as to prevent the disclosure of any irrelevant or personal information.
 

By Bradley C. Myers
 

The United States Supreme Court recently resolved conflicts among the Circuit Courts about the citizenship of a corporation for determining diversity of citizenship jurisdiction (1). This will allow corporations to analyze with more predictable results whether to remove a case to federal court. In Hertz Corp. v. Friend, et al, No. 08-1107 (February 23, 2010) (a unanimous decision, which is unusual in and of itself), the Court decided that when determining a corporation’s citizenship for diversity of citizenship jurisdiction, the “principal place of business” of the corporation is “the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities”—something that courts have referred to as the “nerve center” of the corporation.

By G. Trippe Hawthorne

The Louisiana Legislature has adopted House Concurrent Resolution No. 185, authored by Representative Tim Burns.  The resolution urges and requests that the Department of Health and Hospitals and the Deptartment of Insurance, in consultation with the Louisiana State Licensing Board for Contractors, investigate the health risks associated with living in homes that contain drywall imported from China, study the potential homeowners insurance coverage issues, including triggers, endorsements, and exclusions to policies that are related to drywall imported from China, and determine whether such material should be identified as a substandard, unsafe building material.  The resolution goes on to request a report of the findings and recommendations of this study to the legislature prior to the convening of the 2010 regular session.

A copy of the enrolled version of the resolution can be seen here: Download file

In Burford v. Cargill, Incorporated, 2007 WL 81667 (W.D. La. 1/9/07), a class action brought on behalf of a putative class of all United States dairy farmers, plaintiffs sought a temporary restraining order from the district court to prevent the defendant from contacting putative class members to settle individual claims. The court has not yet determined whether a class should be certified.

Judge Hicks relied upon Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 2193 (1981) in analyzing the issue. He first noted that such restraint required “specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.” The need for limitation, in turn, is to be based upon a “specific record showing by the moving party of …actual or threatened abuse by the party sought to be restrained.” Any relief granted must be “consistent with the policies of Rule 23 giving explicit consideration to the narrowest possible relief which would protect the respective parties.”

The United States District Court for the Western District of Louisiana, Magistrate Judge Hayes, issued a ruling on February 27, 2006, denying remand in a case involving the Class Action Fairness Act of 2005 ("CAFA"). The case is Robinson v. Cheetah Transportation, 2006 WL 468820 (W.D. La. 2/27/06). As I am still somewhat unfamiliar with CAFA, I will examine its application here in a bit more detail than I might otherwise employ with, say, "meat and potatoes" issues like the potestative condition, the doctrine of renvoi, or stipulations pour autrui.

Cautionary note: the district court judge will review the magistrate's ruling, if objected to, and an appeal could follow. The decision is far from final.

You should also be forewarned that, according to acronymfinder, there are thirty-two (32) different applications for the acronym "CAFA," including the "Canadian Association of Freediving and Apnea." But I digress.

On October 7, 2004, a tractor-trailer struck the Columbia bridge on the Ouachita River in Caldwell Parish. The bridge was closed (and I think it's still closed). Plaintiff brought a class action on November 28, 2005, on behalf of "all persons and businesses that resided or worked in Caldwell Parish on October 7, 2004, and were affected by the closure of the Columbia bridge." (Here's a somewhat pensive related news blurb.) Among other consequences of the accident, the Louisiana Art and Folk Festival was cancelled.

Kean Miller is pleased to announce that 12 lawyers, formerly in the Admiralty & Maritime, Construction, and Energy practice areas with Lemle & Kelleher, LLP, have joined the firm in the New Orleans office.

"We are very excited to welcome these distinguished attorneys to our law firm. They are an outstanding resource for our clients. Our offices are located in Louisiana's major port cities --- New Orleans, Baton Rouge and Lake Charles -- and this esteemed group brings over 150 years of combined experience in maritime issues, admiralty law, marine insurance, oil & gas, drilling and exploration, pipelines, construction, and energy law to our clients." said Gary A. Bezet, managing partner of the 121-lawyer firm.

By Glenn M. Farnet

Reproduced with permission from Class Action Action Litigation Report, Vol. 6, No. 21, pp. 793-795 (Nov 11, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com

Katrina has already spawned a hurricane of lawsuits. These suits include: suits by individuals who claim they were injured by hazardous substances that leaked from storage facilities, refineries, or pipeline facilities; suits by individuals who claim that oilfield production and pipeline activities caused wetland damage that exacerbated the effects of hurricane Katrina; and suits by individuals who claim faulty levees caused the widespread flooding that followed in the days after Katrina made landfall. All of these suits have a common thread: each will require the courts to determine whether the damages sued upon resulted from nature's fury or human blunder.

Louisiana, like many other states, recognizes the general principle that an "act of God" can be a complete defense to liability for negligence and strict liability claims. Louisiana courts have generally used a consistent definition of the term "act of God," but the application of that definition in the context of a specific event has not always been consistent or clear, particularly when the issue of contributing human fault is at play.

By Glenn M. Farnet

The past twenty years has seen a dramatic increase in the volume of mass tort and other forms of complex litigation. As the volume of litigation has grown, so too have the burdens on the judiciary and the litigants. To address this growing problem, it is imperative that modern adjudicatory tools be adopted to achieve the goal of securing the just, speedy, and inexpensive determination of every action. One such case management tool that has developed in the context of mass tort litigation - but that can be equally effective in other types of litigation - is the Lone Pine Order.

Per its website at http://www.laed.uscourts.gov, the United States District Court for the Eastern District of Louisiana has closed until further notice, and has suspended "all deadlines and delays in matters pending before this court...until ordered otherwise."

By Alan Berteau

Those with the temerity to tackle the forbidding labyrinth of Louisiana class action law -- and the foresight to gauge the daunting nature of the task ahead -- may wish to consult the eminently useful Practical Digest of Louisiana Class Action Decisions, compiled by the Honorable Thomas F. Daley, Louisiana Fifth Circuit Court of Appeal, Gerald E. Meunier, of Gainsburgh Benjamin David Meunier & Warshauer, and Kean Miller's own Charles S. McCowan, Jr. The editors have compiled and organized a formidable array of excerpts from the most recent Louisiana Supreme Court and appellate court decisions, organized by topic. Of course, class action litigation defies neat categorization and predictability, and courts all too often resort to nostrums in lieu of hard analysis. However, whatever your class action issue, you are likely to find a quote or two "on point," and a wealth of cases to dig into for enlightenment. Resting serenely amidst the turgid prose on adequate representation, typicality, and predominance are some nifty deep South-themed photographs. Look for quiet touches of ironic humor in the juxtaposition of pictures and nearby text. Very quiet touches.

Here is a link to the digest in pdf format.

By Glenn Farnet

For many years, Louisiana litigators have faced the often confusing issue of what to do when the court hands you an unfavorable interlocutory judgment. Do you file an application for a supervisory writ or do you file an appeal?

By Lolly White

In-house counsel who are employed in Louisiana but are not licensed to practice law here have until July 1, 2005 to file an application for limited licensure to practice under the Louisiana Supreme Court's new In-House Counsel Rule.

A practical digest of Louisiana class action decisions prepared by:

The Honorable Thomas F. Daley
Louisiana Fifth Circuit Court of Appeal

Charles S. McCowan, Jr.
Kean Miller Hawthorne D'Armond McCowan & Jarman, LLP

Gerald E. Meunier
Gainsburgh, Benjamin, David, Meunier & Warshauer

Download the 2004 Digest.

To receive a copy of the upcoming 2005 digest, send an e-mail to: client_services@keanmiller.com

By Clay J. Countryman

Several high-profile law firms have continued to file class action lawsuits against non-profit hospitals. The basis of these class action suits is that these hospitals have failed to meet their charity care requirements because of certain billing and aggressive collection practices against uninsured patients. Through mid-July, thirty-one lawsuits have been filed in federal court against nearly 300 hospital facilities in fifteen states including Louisiana. The lawsuits also name the American Hospital Association as a conspirator.