Louisiana Law Blog

by Kevin C. Curry

In IRS News Release 2007-134 issued on July 31, 2007, the Internal Revenue Service has granted an additional year to the time limit for victims of Hurricanes Katrina, Rita and Wilma to sell the vacant land upon which their home had sat and was destroyed as a result of the hurricanes. 

by Erich P. Rapp

Corps of Engineers Releases 100 Year Flood Maps for New Orleans Metro Area

On Wednesday June 20, 2007, the Army Corps of Engineers released its long anticipated 100 year flood maps for various parts of the New Orleans metro area. While the maps depict some improvement over the flood risk that existed before Hurricane Katrina, the risk of catastrophic flooding in the New Orleans metro area remains.

http://blog.nola.com/updates/2007/06/risk.html

http://blog.nola.com/graphics/2007/06/the_risk_of_hurricane_flooding.html

by Erich P. Rapp

On May 30, 2007, United States District Judge Stanwood R Duval dismissed a class action lawsuit by residents of South Louisiana claiming damages from Hurricane Katrina. The court ruled that the plaintiffs had failed to exhaust their administrative remedies with the federal government before filing their Federal Tort Claims Act suit. The lawsuit accused the federal government of negligently designing, constructing, maintaining, inspecting and operating the area's entire navigable waterway system, including the Mississippi River Gulf Outlet, the Gulf Intracoastal Waterway, the Industrial Canal, the London Avenue Canal and the 17th Street Canal.

The court was also critical of the plaintiff's laundry list use of a multitude of federal statutes to support their claims. The judge further suggested that the plaintiffs claims bordered on being sanctionable under Rule 11 of the Federal Rules of Civil Procedure.

The opinion is Berthelot et al. v. BOH Bros. Construction Co. et al., No. 05-CV-04182, 2007 WL 1239132 (E.D. La. 4/27/07).  

by Anthony G. Boone

The purpose of due diligence in the acquisition of licensing of intellectual property assets (namely patents and copyrights) is to give a buyer an opportunity to investigate and evaluate the asset concerned in some detail. More particularly, due diligence involving patens and copyrights can present ownership issues if the author/inventor is or was married and resides in a community property state. Whatever level of diligence is required for the particular transaction, the buyer should consider inquiring as to the current and past marital status of the inventor/author of the intellectual property if the inventor/author is either the seller; a direct owner of the seller; or in some cases, even a past owner of the intellectual property.

by Gordon D. Polozola

Yes, businesses are allowed to make campaign contributions in Louisiana. The limits vary depending upon the office being sought by the candidate to whom the business wishes to contribute. The limits (as of the date of this article) are set forth below. Individuals are subject to the same contribution limits.

The Limits:

by Erich P. Rapp

On June 1, 2007, the Louisiana Legislature unanimously passed the state's first comprehensive master plan for coastal restoration and hurricane protection. In response, the governor has asked the legislature to commit $200 million of the state's surplus to the coastal fund and allow for the securitization of the tobacco settlement funds, of which 20% is constitutionally dedicated to the coastal fund. The new master plan is entitled, "Integrated Ecosystem Restoration and Hurricane Protection: Louisiana's Comprehensive Plan for a Sustainable Coast." 

by Linda Perez Clark

The first annual "Kean Miller Connection," a 3-day law school prep program for college students, will be held May 31 - June 2, 2007 at Kean Miller's office in Baton Rouge.

The goal of the program is to "connect" participants with information helpful to their decision to attend law school and become a lawyer. Program details and eligibility requirements (including that each participant must be a member of a group traditionally underrepresented in law school and the law practice) can be found at http://www.keanmiller.com/recruiting.cfm

Kean Miller Connection is one of many Kean Miller programs that encourage diverse perspectives.   From our inception, Kean Miller has recognized the value of diverse ethnic, cultural and racial backgrounds to the balance and success of the firm. This program is in furtherance of our commitment to diversity.

by Kyle B. Beall

Many companies in Louisiana may be aware of the beneficial tax exclusion authorized in La. R.S. 47:301 and LAC 61:I.4302 for pollution reduction projects. What they may not be aware of, however, is the broader scope of Louisiana’s program than most other states. Unlike other states, Louisiana’s exclusion applies to both pollution control devices and pollution control systems. Thus, the Louisiana legislature intended to apply the program to more than simply “end of the pipe” control technology. This more expansive scope may make certain projects in Louisiana more attractive for multi-state companies competing for the same project dollars. 

by Erich P. Rapp

A case now pending in federal court in New Orleans may have an important impact on potential claims against the federal government for coastal land loss in Louisiana. 

Judge Duval has set the claims of numerous plaintiffs against the Army Corps of Engineers for trial beginning September 8, 2008. Plaintiffs contend the Corps contributed to flooding of their property in St. Bernard Parish and New Orleans during Hurricane Katrina.

Many C-Level executives and small business owners have heard of the Gulf Opportunity Zone (the GO Zone Act) and know that it does something for Louisiana businesses, but they do not know if or how the new law can help them and their employees. Kean Miller has prepared a comprehensive summary of the GO Zone Act and its sister law, the Katrina Emergency Tax Relief Act of 2005 ("KETRA"). This summary describes the key legislative provisions and explains how Louisiana-area businesses, both large and small, can maximize the GO Zone benefits available to them.

The Louisiana Medicaid Program has notified health care providers that they may be able to receive reimbursement for medical treatment provided to uninsured evacuees of Hurricanes Katrina and Rita. To be reimbursed, the provider must have been enrolled in Medicaid as of August 24, 2005.

On March 22, Kean Miller, Regions Bank, Latter & Blum, Morgan Keegan, Laporte Sehrt Romig Hand CPAs, New Orleans CityBusiness magazine, and the Algiers Economic Development Foundation will present an important Gulf Opportunity Zone Workshop. Instead of a recitation of the existing GOZone legislation, the workshop will feature an overview of the effect that the legislation will have on Louisiana's immediate economic future presented by noted economist Dr. Loren C. Scott. After Dr. Scott's presentation, the sponsors will present three interactive case studies designed to teach businesses how to take advantage of this unique situation.

Online Invitation: http://www.latterblum.com/gozone/gozoneinvite.html

Registration form: http://www.latterblum.com/gozone

March 22, 2006
8:00 a.m. - 1:00 p.m.
PanAmerican Life Center
New Orleans, Louisiana

Admission is free of charge.

At a time when everyone in Louisiana appears to be focusing on the aftermath of Hurricanes Katrina and Rita, First Assistant United States Attorney for the Middle District of Louisiana Lyman Thornton assured Kean Miller's Lyn Savoie in a January 25th interview that his office is continuing to focus on health care fraud violations. During the interview with Thornton, he stated that health care fraud has been and will continue to be a priority of his office.

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.

A recent Third Circuit decision joined the long and growing list of cases supporting the Single Business Enterprise Theory exception to the long standing principle that corporations are separate and distinct legal entities apart from their shareholders and affiliated companies.

By Mark D. Mese

Reproduced with permission from Class Action Action Litigation Report, Vol. 6, No. 21, pp. 795-797 (Nov 11, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com

The damages caused by Hurricane Katrina in Louisiana, Mississippi, and Alabama constitute the largest natural disaster in U.S. history. Hurricane Katrina's impact on insurers and their policyholders have already set in motion what will probably be one of the largest legal and public policy storms to hit the United States in modern times. Nowhere will the storm be more evident than in disputes involving wind and water damage coverage.

The eye of the coverage storm is already manifesting itself in coastal areas of Louisiana, Mississippi, and Alabama.

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 Richard S. Pabst

Writ applications have been filed with the Louisiana Supreme Court in two oilfield pollution cases that have the potential to dramatically impact the scope of the numerous legacy lawsuits currently pending throughout the state.

By G. Trippe Hawthorne

A recent case out of Louisiana could be big news for general contractors, owners, and insurers. Louisiana's Second Circuit Court of Appeals agreed with a lower court's opinion that an upstream contractor was entitled to insurance coverage for the cost of repairing defective work performed by a subcontractor (Broadmoor Anderson v. National Union Fire Insurance of Louisiana).

As a service to the community and its clients, Kean Miller will present a Post-Katrina Energy Industry Forum on Thursday, October 13th. In addition, the firm will host its Louisiana Environmental Forum on Friday, October 14th. These two important industry events are part of a week-long breakfast briefing series designed to provide innovation, insight and ideas for business and industry in Louisiana. These breakfast briefing events will be held at Drusilla Place, 3482 Drusilla Lane (Jefferson Highway at I-12 in Baton Rouge).

In the wake of Hurricane Katrina, the Louisiana Department of Insurance has issued three (3) emergency rules to address issues resulting from the current State of Emergency. All rules retroactively become effective as of 12:01 a.m. on August 26, 2005, and shall continue in full force and effect for the duration of the present State of Emergency proclaimed by Governor Kathleen Blanco. Emergency Rule 15 relates to cancellation of insurance policies, notification requirements, and rate increases. Emergency Rule 16 applies to the settlement and business practices of insurance adjusters and requires all public adjusters operating in Louisiana to register with the Department of Insurance. The focus of Emergency Rule 17 is the continuation of health insurance coverage and the payment of claims to medical providers.

By the Kean Miller Business Law Team

Many businesses in Louisiana are now assessing how Hurricane Katrina and Hurricane Rita have affected and will continue to affect their contracts with clients, vendors, partners, and others. This article provides some general guidelines that businesses can use to determine if and how their contracts' terms or Louisiana's commercial law may affect contractual rights and obligations in light of the hurricanes.

The IRS has granted various extensions to taxpayers in areas affected by Hurricane Katrina. Generally, this relief extends the due dates for any business or individual return due on or after August 29, 2005 until January 3, 2006.

By the Kean Miller Construction Law Team

One of the Executive Orders enacted by Governor Kathleen Blanco in response to the disaster arising out of Hurricane Katrina and the flooding caused by the breaches of the levees around New Orleans is Executive Order KBB 2005-27. This Executive Order is captioned "Emergency Procedures for Conducting State Business".

By Mark Mese

Hurricane Katrina will undoubtedly go down in history as the worst natural disaster to hit the United States. The current estimated cost to repair damage from Hurricane Katrina caused has reached $50.0 billion, much of which may be covered by insurance. Hurricane Katrina will have enormous impact on policyholders and their insurers in Louisiana, Mississippi, and Alabama. Policyholders will need to act carefully and in some cases promptly to protect their rights under insurance policies providing coverage for environmental claims, business interruption claims, property loss claims, and general liability claims.

Kean Miller Hawthorne D'Armond McCowan & Jarman, LLP (Kean Miller) donated $10,000 today to help fund the initial development of the United Way Command Center in Baton Rouge, Louisiana. The United Way Command Center has been established to efficiently and effectively meet the human service needs of Hurricane Katrina victims in the 10 parishes served by Capital Area United Way (CAUW).

Heroic efforts are underway to rescue, house, and comfort hundreds of thousands of people affected by the aftermath of Hurricane Katrina. As our thoughts turn toward rebuilding and renewal, we can only wonder what the future holds for the city of New Orleans.

To that end, Dr. George Friedman, Chairman of Stratfor, the world's largest privately held intelligence company, recently authored a thought-provoking article on the rebuilding of New Orleans as it relates to the national -- and global -- economy. Read the article.

By Gary A. Bezet, Managing Partner

To our friends, clients and colleagues --

We deeply appreciate all of the calls, e-mails and concern expressed by our clients, contacts and friends in the aftermath of Hurricane Katrina. Because our headquarters are in Baton Rouge, we were spared the brunt of the damage and devastation being experienced by our friends in New Orleans and on the Gulf Coast. Thankfully, our Baton Rouge, Lake Charles, and Plaquemine offices were not affected.

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 Christopher J. Dicharry

Assessors are charged with the duty of determining the fair market value of business and residential property in Louisiana so that annual ad valorem property taxes can be imposed. This duty to determine fair market value is modified by a duty to insure that assessments are uniform. That is, similar properties should have similar assessments.

by Alan J. Berteau:

By way of BeSpecific, a wonderful weblog, comes a pointer to some overdue recognition for the Louisiana State Legislature web portal.

The Center for Digital Government, which describes itself as "a national research and advisory institute on information technology policies and best practices in state and local government," ranks Louisiana's legislature the third most digitally-advanced in the country, in the CDG's 2003 Digital Legislatures Survey.

[Caveat] Nevada was first, and North Dakota and Minnesota were tied for second, so that technically makes Louisiana fourth, I believe. But who wants to carp over technicalities?

From the article: "The Digital Legislatures Survey is the first study of its kind that will be used as a bellwether for electronic government and provide models for best practices. In August, all 50-state legislative offices were invited to participate in the survey. Officials responded to a set of 12 questions and ranked their offices according to a four-point scale, providing URLs and background data for final verification and validation. Questions ranged from online access to legislation and elected officials to legislative technology support and operations. A ranking was established based on the multiple-choice criteria selections."

I can certainly vouch for the ease with which one can monitor the progress and evolution of a bill during the frenzied session days. I took it for granted that this ease of access was standard operating procedure in all states, but this clearly is not so. Congratulations to those responsible for the creativity, logic, hard work, and meticulous quality control that make the legislature's portal so accessible and accurate.

by Jay Jalenak
As of today, if you log on to the State Bar's website at www.lsba.org you can search for cases in all 50 states and all federal cases for free. The state bar has entered a contract with Fastcase (a business run by Baton Rouge attorney Ed Walter's son, Ed, Jr.). You can run Westlaw/Lexis type searches and download cases on the web at no charge. All you need is your bar roll number and birthdate to log-on.

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.

An interesting post from A.J. Levy at Out-of-the-Box Lawyering, http://www.outoftheboxlawyering.com, on obtaining CLE credits on-line. Louisiana Supreme Court rules allow the desk-shackled among us to obtain up to 4 hours for "watching approved video presentations or listening to approved audio presentations." We can't emphasize the "approved" term enough. Check out A.J.'s post for details. This information could also be handy during those overnight hotel stays when that thirst to keep learning, to keep growing as a lawyer simply cannot be quenched.

The always-excellent Baton Rouge Business Report's on-line edition, http://www.businessreport.com, reports that the appearance of TraceSecurity, a Baton Rouge firm, on CNN translated into a big boost in revenue.

"What's an appearance on CNN worth to a company? Pete Stewart of TraceSecurity estimates the value at $400,000 in revenue. The Baton Rouge-based firm run by Stewart has been cited in national newspapers as an Internet security expert. CNN's "NewsNight with Aaron Brown" last evening featured the head of technology for the firm, which is located in the Louisiana Technology Park and has an office in San Diego. Stewart said this morning the company's phones were ringing off the hook with inquires from potential clients, and TraceSecurity had recieved 15 e-mails as well. Based on early results, he expects the leads to generate $300,000 to $400,000 in revenue in coming weeks."

Here is a link to TraceSecurity's nifty home page, http://www.tracesecurity.com.

Here's a link to a 6/2/05 article in the Baton Rouge Advocate about the cutting-edge work TraceSecurity does, and its enormous potential for expansion. http://www.2theadvocate.com/stories/060205/bus_biz001.shtml

-- by Maureen Harbourt

LSU Chemistry Professor Isiah Warner was awarded a $1 million professorship from the Howard Hughes Medical Institute. Warner intends to use the funds to establish a diversity mentoring program to enhance science education among minorities to encourage minorities to enter science professions. LSU already produces more African-American chemistry Ph.D.'s than any other graduate shcool in the country, largely due to the efforts of people like Professor Warner. Congratulations Dr. Warner! For full story see
http://www.hhmi.org/news/professor-warner.html