While environmental justice initiatives may have experienced a recent administrative curtailment at the direction of the executive branch,[1] recent litigation trends show that EJ-related issues are far from moot. On Wednesday, April 9, 2025, the United States Court of Appeals for the Fifth Circuit reversed the District Court’s dismissal of Appellants’ EJ-related claims regarding racially discriminatory practices in industrial siting and remanded this case to the U.S. District Court for the Eastern District of Louisiana for further proceedings.[2]

The Appellants, comprising community and faith-based groups representing residents in St. James Parish,[3] appealed the dismissal of their challenge to the Parish’s[4] land use practices. In sum, Appellants alleged that the Parish caused hazardous industrial developments to be disproportionately sited in majority-Black areas, that these developments threaten health, property values, and desecrate ancestral burial sites, and that the Parish discriminates by protecting white Catholic churches and schools, but not Black Baptist churches.

The District Court dismissed all seven of the claims with prejudice: (I) Thirteenth Amendment claims (badge or incident of slavery); (II) Fourteenth Amendment Equal Protection claims; (III) Fourteenth Amendment Substantive Due Process claims; (IV) 42 U.S.C. § 1982 claims (property rights); (V) 42 USC §2000cc Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claims (substantial burden on religious rights); (VI) 42 USC §2000cc RLUIPA claims (religious discrimination); and (VII) claims under Article XII Section 4 of the Louisiana Constitution (Preservation of Linguistic and Cultural Origins).

The District Court found some plaintiffs lacked standing and declared most claims time barred. Specifically, the court held that (1) claims I-IV and VI were time barred because they were based on a single incident—the Parish’s adoption of its 2014 Land Use Plan; (2) that claims V and VII were dismissed with prejudice because the Appellants did not allege religious injury standing; (3) that only Inclusive Louisiana had standing to sue for property injuries, and (4) that none of the Appellants had standing to sue for injuries related to unequal treatment.[5] Appellants raised these four issues on appeal.

1. Statute of Limitations (Claims I-IV, VI)

The Court agreed with Appellants that their injuries were related not only to the adoption of the 2014 plan, but also to a pattern of ongoing, recent discriminatory practices. As to claims I-IV, the Court reasoned that the 2022 rejection of a pollution moratorium in Black areas and the simultaneous approval of a solar moratorium in majority-White areas fell plainly within the applicable one-year limitations period.[6] Likewise, the Court  reasoned that the Parish’s approvals of (1) a land use permit for a polyurethane manufacturing facility on a former plantation within a mile of the Appellants and a historically majority-Black Baptist Church and (2) a proposal to build a methanol production plant in the Fifth District near Mount Triumph, plainly fell within the time limit applicable to Claim VI. The Court noted that the Parish cited no authority “supporting the proposition that once a municipality’s land use plan is beyond the statute of limitations, any claims arising from that municipality’s individual land use decisions are time barred, regardless of when those decisions were made.”[7] Thus, the Court reversed the dismissal of these claims as time barred.

2. Religious and Cultural Injuries (Claims V and VII)

The Fifth Circuit held Appellants had adequately alleged religious and cultural harms caused by desecration of ancestral burial sites, such that the Appellants had established standing. The Court reasoned that these injuries were fairly traceable to the Parish’s land use decisions, not only private landowners, as the alleged injuries were not only from a lack of physical access to Appellants’ ancestors’ cemeteries, but also from the destruction and desecration traceable to the Parish through its individual land use decisions.[8]

3. Property Injuries

All three plaintiff organizations properly alleged diminished property values of their members’ property due to industrial siting. Although the Appellants could have given more detail on how the Parish’s land use decisions affected their property values, the court still found this was a concrete and traceable injury sufficient for standing, and that the Parish cited no authority to support that “Article III mandates additional specificity to establish traceability.”[9]

4. Stigmatic Harm

Finally, the Court found that Appellants had alleged they were personally subjected to unequal treatment, which supports a stigmatic injury claim under the Equal Protection Clause. Specifically, the Appellants alleged that the Parish’s land use decisions consistently steer hazardous industrial development to predominantly Black districts while shielding predominately White districts from industrial development, which sufficed to show unequal treatment.[10]

Although this decision is a reversal of a pre-trial motion to dismiss and not a final decision on the merits, it is a novel approach to land use moratoriums. Further, this decision will be instructive for future cases on environmental justice and land use policies.

[1] See, e.g., Executive Order “Protecting American Energy from State Overreach” (April 8, 2025)(directing the U.S. attorney general to identify state laws that address climate change, ESG initiatives, environmental justice and carbon emissions, and to take action to block them).

[2] Inclusive Louisiana et al. v. St James Parish et al., No. 23- 30908, (5th Cir. Apr. 9, 2025).

[3] Inclusive Louisiana, Mount Triumph Baptist Church, and RISE St. James (collectively “Appellants”).

[4] St. James Parish, St. James Parish Council, and the St. James Parish Planning Commission (collectively, “Parish”).

[5] Inclusive Louisiana, No. 23- 30908, slip copy at pp. 8-9 (5th Cir. Apr. 9, 2025).

[6] Id. at p. 12.

[7] Id. at p. 16.

[8] Id. at p. 18.

[9] Id. at p. 20-21.

[10] Id. at p. 22.

Deposing Corporate Representatives? You Might Get More Time Than You Think

In complex litigation, the strategic use of discovery tools is not just beneficial – it’s imperative. Every litigator knows that a well-executed deposition can be a game-changer by uncovering key admissions, streamlining discovery, and exposing weaknesses in an organization defendant’s case.

Among the various deposition tools available to litigators in federal court, Rule 30(b)(6) serves a distinct role in shaping the testimony of organizations. A “30(b)(6) deposition” allows a party to depose an organization and requires it to designate one or more representatives to “speak for the entity.”[1]

It’s not a secret that an organization may designate multiple representatives, but the broader litigation implications, particularly, the time restraints associated with taking the deposition, are often overlooked.

More Witnesses, More Time? Yes – But with Limits.

Under Rule 30(a)(2)(A)(i) of the Federal Rules of Civil Procedure, each side is entitled to ten depositions before requiring court approval for additional depositions.[2] However, when an organization designates multiple 30(b)(6) witnesses, those individual depositions still count as one for the purposes of the ten-deposition limit.

So, does this mean each designee gets a full seven-hour deposition under Rule 30(d)(1)?

The answer, for the most part, is yes – but courts have discretion to impose reasonable time limits. A 2000 Advisory Committee Note to Rule 30(d)(1) clarifies:

“For purposes of this durational limit, the deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition.”

This interpretation has been consistently cited by district courts across multiple circuits, reinforcing that each designee is generally entitled to a full seven-hour deposition. Courts in the First,[3] Second,[4] Third,[5] Fourth,[6] Fifth,[7] Sixth,[8] Seventh,[9] Ninth,[10] Tenth,[11] and Eleventh Circuits[12] have acknowledged and applied this guidance, often permitting deposition time for multiple designees in excess of the 7-hour presumption.

This means that in many cases, if an organization designates three representatives, you could be looking at 21 hours of deposition time. But before you start planning an all-nighter with the court reporter, take note:

Courts Can – and Do – Cap Time Limits.

While courts don’t issue carte blanche orders for seemingly endless depositions, 30(b)(6) depositions involving multiple designees often exceed the presumptive 7-hour limit.

For example, in Smith v. Smith,[13] an organization designated four different representatives. Instead of allowing the full 28 hours pursuant to a strict reading of Rule 30(d)(1), the court limited the four depositions to 14 hours total, citing the scope of the topics and potential for redundancy.

Similarly, in Buie v. D.C.,[14] the Court permitted a cumulative 18 hours for 30(b)(6) depositions – not necessarily based on the number of representatives, but in light of the topics sought by the noticing party and the understanding that multiple persons would be acting as the corporate representative.[15]

Despite consistent guidance from courts, noticed parties frequently argue that the seven-hour presumptive limit should apply collectively to all.[16] These arguments, however, have been largely unsuccessful. As the Buie Court noted:

“Although the Advisory Committee notes are not binding on the Court, they explain the intent behind the rules and ‘are nearly universally accorded great weight in interpreting federal rules.’”[17]

Conversely, in In re Rembrandt Technologies,[18] the court rejected a party’s argument that each 30(b)(6) designee should be treated as a separate deponent with a full seven-hour allowance per person. The court reasoned:

A blanket rule permitting a seven-hour deposition of each designated deponent is unfair because it rewards broader deposition notices and penalizes corporate defendants who regularly maintain business information in silos and who therefore must either designate multiple individuals to respond or spend time, energy, money and other resources preparing a single individual to respond and unduly burdensome (because of the manifest increased cost and disruption of preparing more than one person to respond to a deposition notice).

Despite this critique, the court ultimately permitted a total of ten (10) hours to depose five 30(b)(6) designees.[19]

While Rembrandt reflects one court’s rationale, it remains a minority view. Most courts reject a strict numerical cap and instead assess time limits based on the scope of the deposition notice, the number of designees, and the complexity of the issues involved.[20]

The variances between circuit courts – while not stark – are critical in shaping arguments. Even 25 years later, the Advisory Committee notes remain the prevailing authority, despite repeated attempts to impose a strict seven-hour time limit in the 30(b)(6) context.

By staying informed on the evolving applications of Rule 30(b)(6), litigators can ensure they extract the most from 30(b)(6) depositions while effectively managing court-imposed constraints. Whether you’re conducting a 30(b)(6) deposition or defending one, understanding the nuances of deposition duration and designee limitations can help you strategically maximize – or reasonably limit – important testimony.

[1] FRCP 30(b)(6).

[2] See FRCP 30(a)(2)(A)(i).

[3] Proa v. NRT Mid-Atl., Inc., No. CV AMD-05-2157, 2008 WL 11363286 at *11 (D. Md. June 20, 2008).

[4] Oakley v. MSG Networks, Inc., No. 17-CV-6903 (RJS), 2024 WL 5056111 at *3 (S.D.N.Y. Dec. 10, 2024) (Denying party’s motion to limit 30(b)(6) deposition to seven hours.).

[5] Handy v. Delaware River Surgical Suites, LLC, No. 2:19-CV-1028-JHS, 2024 WL 1539604 at *fn.1 (E.D. Pa. Feb. 21, 2024).

[6] Oppenheimer v. Scarafile, No. CV 2:19-3590-RMG, 2021 WL 5902738 at *1 (D.S.C. July 30, 2021).

[7] Payne v. Raytheon Techs. Corp., No. 3:22-CV-2675-BN, 2024 WL 5012054 at *2 (N.D. Tex. Dec. 6, 2024).

[8] ChampionX, LLC v. Resonance Sys., Inc., No. 3:21-CV-288-TAV-JEM, 2024 WL 1743101 (E.D. Tenn. Jan. 12, 2024).

[9] PeopleFlo Mfg., Inc. v. Sundyne, LLC, No. 20 CV 3642, 2022 WL 7102662 at *fn.4 (N.D. Ill. Oct. 12, 2022).

[10] Unknown Party v. Arizona Bd. of Regents, No. CV-18-01623-PHX-DWL, 2021 WL 2291380 (D. Ariz. June 4, 2021).

[11] M.G. through Garcia v. Armijo, No. 1:22-CV-0325 MIS/DLM, 2024 WL 168270 (D.N.M. Jan. 16, 2024).

[12] United States ex rel. Bibby v. Mortg. Invs. Corp., No. 1:12-CV-4020-AT, 2017 WL 8222659 (N.D. Ga. Oct. 12, 2017), report and recommendation adopted, No. 1:12-CV-4020-AT, 2017 WL 8221392 (N.D. Ga. Oct. 13, 2017).

[13] Smith v. Smith, No. 19-10330, 2020 WL 1933820 (E.D. Mich. Apr. 22, 2020).

[14] Buie v. D.C., 327 F.R.D. 1 (D.D.C. 2018).

[15] Id.

[16] See e.g., Smith v. Smith, No. 19-10330, 2020 WL 1933820 (E.D. Mich. Apr. 22, 2020).

[17] Buie v. D.C., 327 F.R.D. 1 (D.D.C. 2018).

[18] In Re Rembrandt Techs., No. 09-CV-00691-WDM-KLM, 2009 WL 1258761 at *14 (D. Colo. May 4, 2009).

[19] Id.

[20] See e.g., Oakley v. MSG Networks, Inc., No. 17-CV-6903 (RJS), 2024 WL 5056111 at *3 (S.D.N.Y. Dec. 10, 2024) (Denying party’s motion to limit 30(b)(6) deposition to seven hours.).

On March 12, 2025, the U.S. Environmental Protection Agency (“EPA”) announced its deregulatory agenda.[1] Although most of the 31 actions identified by the EPA will require formal notice and comment rulemaking, with litigation ensuing, Wednesday’s announcement makes good on the Trump Administration’s promises to roll back environmental regulation.[2]

Of particular significance to the chemical manufacturing and oil and gas industries in Louisiana and Texas, the following regulations, among others, are listed for reconsideration:

  • Clean Power Plan 2.0
  • New Source Performance Standards (“NSPS”) OOOOb and OOOOc[3]
  • Mercury and Air Toxics Standards (“MATS”)[4]
  • Greenhouse Gas Reporting Program[5]
  • PM2.5 National Ambient Air Quality Standard (“PM2.5 NAAQS”)[6]
  • Certain National Emissions Standards for Hazardous Air Pollutants (“NESHAP”)[7]
  • Regional Haze[8]
  • Good Neighbor Plan[9]
  • Risk Management Plan (“RMP”)[10]
  • Implementation of Exceptional Events[11]

These major rulemakings will take time, and at this stage, the scope of reconsideration and the specific regulatory requirements included is uncertain. The Kean Miller environmental regulatory team is closely following all actions.

[1] “EPA Launches Biggest Deregulatory Action in U.S. History” available at: https://www.epa.gov/newsreleases/epa-launches-biggest-deregulatory-action-us-history.

[2] See Executive Orders, “Unleashing American Energy”, “Declaring a National Energy Emergency”, “Putting America First in International Environmental Agreements”, and others available at:  www.whitehouse.gov.

[3] 40 C.F.R. Part 60, Subpart OOOOb (Standards of Performance for Crude Oil and Natural Gas facilities for Which Construction, Modification or Reconstruction Commenced After December 6, 2022); 40 C.F.R. Part 60, Subpart OOOOc (Emissions Guidelines for Greenhouse Gas Emissions From Existing Crude Oil and Natural Gas Facilities).

[4] 40 C.F.R. Part 63, Subpart UUUUU.

[5] 40 C.F.R. Part 98.

[6]  See https://www.epa.gov/pm-pollution/national-ambient-air-quality-standards-naaqs-pm (2024 rulemaking setting the primary annual PM2.5 standard to 9.0 micrograms per cubic meter).

[7] EPA has identified at least the following NESHAP for reconsideration: 40 C.F.R. Part 63 Subpart FFFFF (Integrated Iron and Steel Manufacturing), 40 C.F.R. Part 63 Subpart XXXX (Rubber Tire Manufacturing), 40 C.F.R. Part 63 Subparts F, G, H, I (Synthetic Organic Chemical Manufacturing Industry “SOCMI” including HON), 40 C.F.R. Part 63 Subpart O (Ethylene Oxide Emissions Standards for Sterilization Facilities), 40 C.F.R. Part 63 Subpart AAAAA (Lime Manufacturing Plants), 40 C.F.R. Subpart 63 Subpart L (Coke Ovens), 40 C.F.R. 63 Subpart QQQ (Copper Smelting) 40 C.F.R. 63 Subpart RRRRR (taconite ore processing).  

[8] 40 C.F.R. Sec. 51.308.

[9] 88 Fed. Reg. 49295 (July 31, 2023) and 88 Fed. Reg. 67102 (Sept. 29, 2023) (interim final actions to stay FIPs for certain states)

[10] 40 C.F.R. Part 68.

[11] See e.g., “Treatment of Data Influenced by Exceptional Events” (81 FR 68216; October 3, 2016) and https://www.epa.gov/air-quality-analysis/treatment-air-quality-monitoring-data-influenced-exceptional-events.

In M&A transactions, the seller makes representations and warranties to the buyer regarding the business being sold, its ownership, assets, operations, and liabilities.  The seller typically indemnifies the buyer from losses incurred post-closing resulting from inaccuracies in those representations and warranties.  This contractual structure is used by the parties to allocate certain known and unknown business risks between the buyer and seller.  However, negotiation of these representations and warranties and the indemnity structure in the acquisition agreement can be a contentious and lengthy process.  Buyers usually prefer broad indemnity from the seller for such post-closing losses, and sellers prefer to give a limited indemnity which is targeted to specific risks identified in the seller’s business.

Representation and warranty insurance (R&W insurance) is often an option which can help buyers and sellers avoid contentious negotiation of risk allocation by shifting some of the risks of an acquisition to an insurer.

R&W insurance provides coverage for indemnification claims a buyer may have for losses resulting from breaches of a seller’s representations and warranties in the acquisition agreement. The use of R&W insurance in M&A transactions has increased in recent years due to efficiencies in the insurance market, including lower premiums, better terms, and lower minimum transaction value.

R&W insurance policies can insure either the buyer or the seller in the transaction. Buy-side policies are the most common form of R&W insurance in private M&A transactions.

The viability of using R&W insurance in an M&A transaction depends largely on the size of the deal.  Due to pricing constraints like premium costs and professional fees and expenses, R&W insurance may be cost prohibitive for deals valued less than $20 million.  However, deals with transaction values between $10 million and $20 million are sometimes insured due to increased demand by buyers and sellers.

R&W insurance can benefit both the buyer and the seller in M&A transactions.

For the Seller, R&W insurance can (1) reduce the seller’s risk of liability for breaches of its representations and warranties by lowering or eliminating the seller’s indemnity obligations; (2) provide the seller with a cleaner exit from the business by reducing or eliminating the amount of proceeds held back by the buyer or placed in escrow; and (3) allow the seller to give the more extensive representations and warranties the buyer will want in the acquisition agreement, without as many “materiality” and “knowledge” qualifiers, leading to a quicker resolution of the form of acquisition agreement and thus an expedited closing.

For the Buyer, R&W insurance can (1) supplement or sometimes replace the indemnification protection provided by the seller by providing additional coverage beyond the liability cap and/or survival period in the acquisition agreement; (2) provide a secure source of recovery for losses resulting from breaches of the seller’s representations and warranties, particularly when recovery from the seller may be difficult; (3) allow the buyer to make a more attractive bid to the seller with no (or limited) escrow or holdback required, since the buyer will rely on the insurance for indemnification protection; and (4) preserve key relationships by mitigating the need for a buyer to pursue claims against sellers who will be working for the buyer post-closing.

The insurer will charge a premium for issuing the policy, generally ranging between 2% and 4% of the coverage amount.  The policy coverage amount is typically a dollar amount equal to 10% of the transaction value.  There will be a deductible amount under the policy that is excluded from coverage (the “retention”), generally set at 1% of the transaction value.  So, if an M&A transaction value is $50 million, the policy coverage amount will be around $5 million, the policy premium will likely be around $100,000 – $200,000, and the retention will likely be around $500,000.

The cost of R&W insurance (including the premium) is often split 50/50 between the seller and the buyer; however, this can vary depending on the leverage of the parties in the negotiation of the acquisition agreement.

R&W insurance policies generally do not cover losses resulting from:  (1) breaches of covenants; (2) purchase price adjustments; (3) contingent claims based on future events; and (4) matters that are known to the insured’s deal team before the inception of the policy (including all matters disclosed on schedules to the acquisition agreement and all matters discovered in due diligence).  Other exclusions will likely apply under the policy, based on the results of the buyer’s and the insurer’s due diligence of the seller’s business.

The insurer will typically conduct its own due diligence of the seller’s business during the underwriting process, focusing on areas or issues that could lead to material liabilities.  This process can add some additional time to close the transaction; however, efficiencies are often realized by repeat relationships between buyers, their advisors, and the insurance underwriters who have worked together on previous transactions and have developed a working understanding of each other’s processes.

Sellers and buyers should consult their advisors (attorneys, investment bank or broker) early in the process of an M&A transaction, preferably as early as in the letter of intent/term sheet stage, to determine if R&W insurance is a viable option for the transaction, as both parties may derive significant benefit from purchasing R&W insurance for the transaction.

On the first day of his second term in office, President Trump issued an Executive Order titled “Unleashing American Energy.” This Order contains several provisions intended to encourage American energy production and remove barriers that “have impeded the development” of energy and natural resources.

The Order states that it is “in the national interest to unleash America’s affordable and reliable energy and natural resources.”[1] Therefore, the policy of the United States will be “to encourage energy exploration and production on Federal lands and waters, including on the Outer Continental Shelf,”[2] ensure that abundant and reliable energy “is readily accessible in every State and territory of the Nation,”[3] ensure “that all regulatory requirements related to energy are grounded in clearly applicable law,”[4] to promote consumer choice,[5] and to ensure that the global effects of a rule, regulation, or action shall, whenever evaluated, be reported separately from its domestic costs and benefits…”[6]

In practice, this Order calls for a substantial deregulation of the energy industry. It expressly calls for eliminating the “electric vehicle mandate”[7] and abolishing regulations on household appliances designed to push consumers toward appliances with lower energy consumption.[8] The thrust of the Order is that American success will be achieved not by limiting our energy consumption, but by producing enough energy to provide for American needs however high they may be or become. Importantly, the Order calls for an immediate review by federal agency heads of “all existing regulations [broadly defined] to identify those agency actions that impose an undue burden on the identification, development, or use of domestic energy resources.”[9] Once such a review is complete, agency heads are directed to implement action plans to suspend, revise, or rescind all regulations identified as unduly burdensome.[10]

The Order also revokes twelve prior Executive Orders related to energy and environmental regulation issued by President Biden, which addressed climate change and environmental justice.[11] The Order also revokes Executive Order 11991 of May 24, 1977,[12] related to the protection and enhancement of environmental quality, and takes direct steps to “expedite and simplify the permitting process”[13] and “prioritize efficiency and certainty over any other objectives…”[14] Additionally, all activities and operations associated with the American Climate Corps, established in September 2023, are shut down,[15] and the Working Group on the Social Cost of Greenhouse Gases is disbanded.[16] The Order directs the Chairman of the Council on Environmental Quality to provide guidance on implementing the National Environmental Policy Act in a way less burdensome to business by simplifying and expediting the permitting process. Any industry projects deemed “essential for the nation’s economy or national security” are to receive expedited action on permits, including emergency approvals granted when appropriate.[17] In all permitted matters, agencies are directed to “adhere to only the relevant legislated requirements for environmental considerations[,] and any considerations beyond these requirements are eliminated.”[18] Thus, agencies have been told to not allow considerations beyond those specified in legislation to serve as a reason for blocking any industrial project related to energy production.

Overall, the Order loosens regulations on the energy industry and emphasizes energy production. The changes ordered will make regulatory compliance less burdensome for both upstream and downstream energy suppliers and is the first step in enacting the President’s vision and energy policy for the United States.

[1] Executive Order, “Unleashing American Energy,” Jan. 20, 2025, §1.

[2] §2(a).

[3] §2(c).

[4] §2(d).

[5] §2(e).

[6] §2(g).

[7] §2(e).

[8] §2(f).

[9] §3(a).

[10] §3(b).

[11] §4(a).

[12] §5.

[13] §5(b).

[14] §5(c).

[15] §4(b).

[16] §6(b).

[17] §5(b) and (d).

[18] §6(a).

This article was originally published by Biz New Orleans.

NEW ORLEANS – Devin Ricci and Mary Love, Intellectual Property Lawyers with Kean Miller LLP, have issued a statement urging businesses and individuals to exercise caution to avoid unauthorized use of NFL-related branding or while streaming game broadcasts to avoid hefty fines or legal action.

Ricci and Love highlighted that the NFL maintains strict control over its intellectual property, including game broadcasts, logos, team names, and slogans. “Many facets of the Big Game are protected by copyright and trademark laws,” Ricci explained. “The NFL actively enforces these rights through measures such as takedown notices, cease-and-desist letters, and lawsuits.”

Businesses planning to stream the game must ensure they have the appropriate licensing. A commercial license is typically required for public screenings in establishments such as bars, restaurants, or event venues. Relying on personal streaming subscriptions for such purposes is a violation of the NFL’s licensing agreements and could lead to significant penalties. Love advised, “Check with your service provider to confirm that your streaming package includes the necessary commercial rights.”

The NFL also owns trademarks on terms like “Super Bowl” and associated branding, which cannot be used for promotional or advertising purposes without explicit permission. “Unauthorized use of NFL trademarks is prohibited at both state and federal levels,” Ricci noted. “Businesses can avoid infringement by opting for general terms like ‘The Big Game’ instead.”

The financial consequences of violations are substantial. Under the Copyright Act, statutory damages range from $750 to $30,000 per work, with potential increases up to $150,000 for willful infringement. Similarly, the Lanham Act allows for damages between $1,000 and $200,000 per counterfeit mark, which can escalate to $2 million for willful violations. Both statutes permit the recovery of attorney’s fees, further increasing the costs of non-compliance.

The lawyers stressed that the NFL is particularly vigilant about protecting its brands during high-profile events like the Super Bowl. For businesses unsure about compliance, consulting legal counsel is strongly recommended. “The costs of obtaining the proper licenses pale in comparison to the potential damages of a legal dispute,” Love said.

Kean Miller LLP’s guidance serves as a reminder of the critical importance of respecting intellectual property rights, particularly as New Orleans gears up for a landmark Super Bowl celebration.

A pair of recent decisions from the US Supreme Court and the Fifth Circuit Court of Appeals signals a trend by the judiciary to closely scrutinize agency rulings where, in the past, courts have traditionally maintained a laissez-faire approach.

In Ohio v. EPA, the Supreme Court ruled that an agency action qualifies as arbitrary or capricious if it is not “reasonable and reasonably explained”.[1] The decision was 5-4, with Justice Gorsuch writing for the majority and Justice Barrett writing the dissent. In the dissent, Justice Barrett explained that the Court did not conclude that the EPA’s actions were substantively unreasonable. Rather, the primary basis for the Court’s decision is the argument that EPA failed to provide a “satisfactory explanation for its action” and a “reasoned response” to comments. Justice Barrett noted that the Court should, as it has most often done in the past, “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.”[2] Thus, under Justice Barrett’s view, a reasonable result can save a poorly-explained decision from an Administrative Procedure Act challenge; Justice Gorsuch and the majority rejected this conclusion.

Likewise, a day prior to the Supreme Court’s ruling in Ohio v. EPA, the Fifth Circuit issued its opinion in National Association of Manufacturers v. SEC and held that the SEC had acted arbitrarily and capriciously in two ways: 1) the agency failed to adequately explain its decision to disregard its prior factual finding; and 2) the agency failed to provide a reasonable explanation regarding the significance of certain risks at issue in the matter.[3] The panel’s criticism focused on the agency’s rationale and its decision-making process, rather than the final resulting rule.

In each of the decisions, the courts cite FCC v. Prometheus Radio Project,[4] which had reformulated the arbitrary and capricious inquiry. In that case the Supreme Court ruled that “[a] court simply ensures that the agency has acted within a zone of reasonableness, and in particular, has reasonably considered the relevant issues and reasonably explained the decision.”[5] Per this language, the agency’s decision-making process, along with its final determination, will be scrutinized by the courts if a rulemaking is challenged.

Thus, it appears the “zone of reasonableness” test has usurped previous iterations of the arbitrary and capricious analysis. Combined with the overturning of Chevron deference also announced by the Court last year,[6] the likely overall effect of this new precedent will be greater scrutiny over agency action and a more restricted scope for permissible agency action.

[1] Ohio v. Env’t Prot. Agency, 603 U.S. 279, 292 (2024) (quoting FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021)).

[2] Id. at 311 (Barrett, J., dissenting) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

[3] Nat’l Ass’n of Manufacturers v. United States Sec. & Exch. Comm’n, 105 F.4th 802, 811 (5th Cir. 2024).

[4] Fed. Commc’ns Comm’n v. Prometheus Radio Project, 592 U.S. 414 (2021).

[5] Id. at 423.

[6] See Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

Two days before Christmas, the Louisiana Fifth Circuit Court of Appeal handed down an opinion that should be of note to Louisiana employers. In its opinion, the Court of Appeal held that as a matter of law, an employer can be vicariously liable for damages caused by an employee involved in a motor vehicle accident driving to work if the employee is eligible for a mileage reimbursement. Louisiana employers can be held responsible for their employees’ torts through the concept of “vicarious liability” (known as “respondeat superior” under common law). The concept of vicarious liability is codified in the Louisiana Civil Code at article 2320. For an employer to be held liable for an employee’s tort, (i) there must be an employee-employer relationship between the actor and the purported employer and (ii) the tort must have been committed within the course and scope of the actor’s employment with the employer.

Driving to and from work is generally not considered as being within the course and scope of employment; however, there are exceptions to that rule. In a unanimous December 23, 2024, panel opinion, the Louisiana Fifth Circuit Court of Appeal in Miller v. Shamsnia, 24-100 (La. App. 5th Cir. 12/23/24), ___ So.3d___, 2024WL5196576, held that an employer could be vicariously liable for damages caused by its employee while driving if the employer had a policy of reimbursing its employees for their mileage for travel to a work site, even if the employee did not request the reimbursement and was not paid the mileage. In its opinion, the Miller court expressly recognized that “[g]enerally, an employee going to and coming from work is not in the course and scope of employment.” Miller v. Shamsnia, 24-100 (La. App. 5th Cir. 12/23/24), p. 7, ___So.3d___, ___, 2024WL5196576, *4 (citation omitted). However, the court noted that the general rule is “subject to various exceptions, including situations where an employer has involved himself in the transportation of the employee as an incident to the employment agreement, either through furnishing a vehicle or payment of expenses, or where wages are paid for time spent in traveling.” Id. at p. 8, ___So.3d___, ___, 2024WL5196576, *4 (citations omitted).

In the case before the court, the employee involved in the motor vehicle accident was a neurologist who was driving from the New Orleans area to the Northshore on the Causeway Bridge en route to a hospital visit as part of a weeklong rotation. Deposition testimony reflected the fact that the physicians “were compensated through reimbursement of mileage for use of their personal vehicles [at the Internal Revenue Service’s rate for mileage].” Id. at p. 9, ___So.3d___, ___, 2024WL5196576, *4. Although the employee neither requested the travel reimbursement, nor was he paid any travel reimbursement for the night in question, the court noted that he was “eligible” for the reimbursement. Id. ___So.3d___, ___, 2024WL5196576, *4 (emphasis in original). The court held, “[t]herefore, we find that, under the particular circumstances of this case, the exception to the going and coming rule applies because Tulane offered payment of Dr. Shamsnai’s expenses through travel reimbursement. We further find that Dr. Shamsnai was acting within the course and scope of his employment while traveling to Lakeview Hospital on the night of the accident because Tulane had a policy for providing travel reimbursement to physicians commuting to Lakeview Hospital, and his trip to the hospital was employment related.” Id., ___So.3d___, ___, 2024WL5196576, *4 (emphasis added).

A copy of the Fifth Circuit’s opinion is available at the Fifth Circuit’s website: https://www.fifthcircuit.org/dmzdocs/OI/PO/2024/F8301AAE-4FF9-412B-9F2E-CF3C3714EB91.pdf. Because the parties may seek rehearing before the Fifth Circuit or may seek relief from the Louisiana Supreme Court, the story may not have concluded. Kean Miller will monitor subsequent filings and provide any necessary updates.

A recent 4–3 majority decision [1] from the Louisiana Supreme Court exposes market intermediaries to potential liability for damages caused by products sold by sellers using their platform.  In June 2024, the Louisiana Supreme Court answered two certified questions from the United States District Court for the Western District of Louisiana concerning the liability facing online marketplaces when a product sold on their platform by a third-party causes damage. [2] The Court answered two questions: (1) if an online marketplace operator constitutes a “seller” under the Louisiana Products Liability Act (“LPLA”) and (2) whether an online marketplace operator can be liable under a theory of negligent undertaking. [3]

Plaintiff Archie Pickard (“Pickard”) purchased a battery charger on amazon.com that was sold by a third-party seller identified as “Jisell”.[4] Pickard died when the charger malfunctioned, causing a fire in his home.  Jisell sold the charger on Amazon and, specifically, utilized Amazon’s service known as “Fulfillment by Amazon” in which a seller’s products are sent to a warehouse operated by Amazon for storage and processing.[5]  After receiving a customer’s order, Amazon retrieves the product and delivers it to the buyer.[6]  Importantly, the ownership of products such as the battery charger that are sold through “Fulfillment by Amazon” does not transfer to Amazon, but remains with the seller at all times.[7]

Generally, the LPLA only applies to manufacturers.[8]  However, the LPLA’s scope extends to sellers in two instances: (1) the seller exercises control over a characteristic of the product’s design, construction, or quality; or, (2) the seller operates as a manufacturer’s alter ego in importing and distributing a foreign manufacturer’s product.[9]  The Pickard court found that Amazon was a “seller” as it took “physical custody of the product . . . and controlled the process of the transaction and delivery”.[10]

Turning to the second question, the Court referenced its prior decision in Bujol v. Entergy Services, Inc., applying § 324A of the Restatement of Torts Second as the proper test for determining whether an online marketplace operator is liable for a claim of negligent undertaking.[11]  To assert such a claim, a defendant must assume a duty by an affirmative or positive undertaking.[12]  Upon such a showing, a defendant is liable for a negligent undertaking if one of the following scenarios applies: (1) a change in conditions increased the risk of harm over the level of risk existing prior to the defendant’s involvement; (2) the defendant’s undertaking supplants, not just supplements, another’s duty; or (3) the harm is suffered because of reliance by the plaintiff on the defendant’s undertaking.[13]  Ultimately, the Court referred a determination on whether the facts supported Pickard’s claim for negligent undertaking to the trial court.[14]

Following the Louisiana Supreme Court’s decision in Pickard, marketplace operators should carefully consider their conduct and address whether they are stepping into the shoes of a seller and in turn a manufacturer.  Pickard opens the door for applications of the LPLA to parties, such as marketplace operators, that are not colloquially thought of as product sellers.  But all is not lost on marketplace operators because there are numerous legal tools in the toolbox via La. R.S. § 2800.53(1)(b) and (d) as explained in the Bujol case.  These tools can curtail potential liability and allay some of those fears.

[1] Justice Crain authored the majority opinion with Justices Hughes, Genovese, and McCallum dissenting.

[2] Pickard v. Amazon.com, Inc., 2023-CQ-01596 (6/28/24), 387 So.3d 515.

[3] Id. at 517.

[4] Id. at 518.

[5] Id.

[6] Id.

[7] Id.

[8] La. R.S. 9:2800.52. “This Chapter establishes the exclusive theories of liability for manufacturers for damage caused by their products.”

[9] La. R.S. 9:2800.53(1)(b) and (d). The full text of subsection (d) states “A seller of a product of an alien manufacturer [is a manufacturer] if the seller is in the business of importing or distributing the product for resale and the seller is the alter ego of the alien manufacturer.  The court shall take into consideration the following in determining whether the seller is the alien manufacturer’s alter ego: whether the seller is affiliated with the alien manufacturer by way of common ownership or control; whether the seller assumes or administers product warranty obligations of the alien manufacturer; whether the seller prepares or modifies the product for distribution; or any other relevant evidence.”

[10] 387 So.3d at 523 (citing La. R.S. 9:2800.53(2)).

[11] Id. at 526 (citing Bujol v. Entergy Servs., Inc., 2003-0492 (La. 5/25/04), 922 So.2d 1113); Restatement (Second) of Torts § 324A).

[12] Id. at 525 (citing Bujol, 922 So.2d at 1129).

[13] Id. (citing Bujol, 922 So.2d at 1135, 1136, 1148).

[14] Id. at 526 (citing La. S.Ct. Rule XII, § 8; La. R.S. 72.1A; Wightman v. Ameritas Life Ins. Corp., 22-0364 (La. 10/21/22), 351 So.3d 690, 693).

As a business owner, one of the most important decisions of your business career is the decision to sell your business, and once you make the decision to sell, it can be a long and complicated process. To maximize the value of your business and to minimize obstacles and delays in getting to closing, you should carefully prepare your company for sale and prepare for the challenges which arise in each stage of the sale process.  This article includes suggestions for making those preparations, as well as how to manage the multiple stages of the sale process, all with the aim of achieving a successful closing.

Assemble Your Deal Team

You should assemble a team to manage your sale efforts as early as possible. Your deal team should include:

(1) your company management team of key executives to engage and work with your professional advisors, perform due diligence, and negotiate the transaction documents;

(2) legal counsel to draft and negotiate the transaction documents, coordinate the signing and closing of the transaction, and work with the management team in the due diligence process;

(3) an investment bank, broker, or other financial advisor to identify potential buyers and market the business, value the company, manage the sale process, and prepare the marketing materials and organize the due diligence process; and

(4) accountants (and tax advisor) to assist in preparing your company’s financial statements and financial projections and advise you on your (and your company’s) tax liability related to the transaction.

You should choose legal, financial, and tax advisors who have significant experience with mergers & acquisitions (M&A) transactions.  It is not wise to assume that your company’s general legal counsel and CPA have the expertise necessary to guide you through all of the legal, financial, and tax issues that will arise during the sale process.

Find Your Buyer & Value Your Business

Obviously, finding not only a buyer, but the right buyer, is essential to a successful transaction.  An investment banker, broker, or other financial advisor can assist in identifying potential buyers and marketing your company to maximize the purchase price.  This may include an auction in which multiple potential buyers are invited to bid on your company.  Even if you have already identified a willing and suitable buyer, you should still consider engaging an investment bank or other financial advisor to determine an accurate and realistic value for your company, so that you can negotiate an acceptable purchase price with a buyer.

Your company’s potential buyers will generally come in one of two forms:  (1) “strategic buyers”, which are operating companies which are usually competitors, suppliers, or customers of your company; or (2) “financial buyers”, which are generally private equity firms or venture capital firms looking to purchase your company as an investment.

Each type of buyer has pros and cons, and your financial and legal advisors can help you select a suitable buyer based on your preferences.  For instance, a financial buyer’s offer often includes a requirement that the seller stockholders “roll over” a portion of their existing equity in the target company by exchanging that equity portion for one or more classes of equity in the buyer entity or the buyer’s parent company.  The equity received by the sellers in the rollover can constitute a significant portion of the overall consideration paid to the sellers, which means less cash is paid to the sellers at closing.

Due Diligence & Confidentiality

Before a potential buyer is willing to make an offer to purchase your company, the buyer will want to conduct due diligence of your company in order to gather information and identify issues that are relevant to the acquisition.  Before sharing any of your company’s proprietary or sensitive information, you should require each potential buyer to sign a confidentiality agreement at the outset of discussions to ensure each potential buyer maintains the confidentiality of the negotiations as well as any due diligence information.  You should look to your legal counsel to prepare a proper confidentiality agreement that you can use with each potential buyer.

Also, you should conduct your own due diligence of your company to ensure there are no problems that could delay or otherwise adversely affect the sale, including any corporate, regulatory, or third-party consents that may be required for the sale.  Your legal and financial advisors can guide you in your diligence efforts to help you discover any issues or problems during this stage, so that you have time to either cure any problems or develop negotiating strategies to deal with them.

Letter of Intent

A letter of intent (sometimes referred to as an LOI, memorandum of understanding (MOU), or term sheet) is a letter agreement which is usually entered into early in the sale process, setting forth the parties’ initial understanding of key terms of the deal.  The LOI helps the parties identify deal breakers early in the deal process before the parties incur significant costs.  An LOI is generally not intended to create a legally binding commitment to close the transaction on the terms set out in the LOI, but the parties often include certain binding provisions in the LOI like exclusivity commitments, expense sharing, and confidentiality covenants.

The seller typically wants the LOI to be as detailed as possible because once the LOI has been signed, and especially if the buyer is given exclusivity in the LOI, the leverage in the negotiations shifts to the buyer.  Usually, the letter of intent is drafted by the buyer’s counsel, but the seller should negotiate the LOI carefully with the help of its legal and financial advisors.

A seller should resist earnouts, claw-backs, holdbacks, and large escrows at the LOI stage (and during negotiation of the definitive transaction documents), all of which are commonly proposed by buyers.  In the LOI, a seller should negotiate and include acceptable liability caps, deductibles, and survival periods for seller’s representations and warranties, as well as a narrow set of “fundamental” representation and warranty categories, all of which will be incorporated into the purchase agreement.  If economically feasible for the transaction, a seller should push the buyer to agree at the LOI stage to purchase representation and warranty insurance.

Deal Structure

At the LOI stage, the parties are not always prepared to commit to a transaction structure, but it is wise to select a transaction structure which is advantageous to the seller in the LOI if possible.  Selecting the best structure is critical to the success of your transaction. The three legal structures most commonly used to sell a business are:  (1) asset sale; (2) stock sale; and (3) merger.  Choosing which structure to use involves many factors, and buyers and sellers often have competing interests.

In an asset sale, the buyer acquires specific assets and liabilities of the target company as described in the asset purchase agreement. After the deal closes, the buyer and seller maintain their corporate structures, and the seller retains those assets and liabilities not purchased by the buyer.  Asset sales are often disadvantageous to sellers because the seller is left with known and unknown liabilities not assumed by the buyer, and the seller usually receives better tax treatment when selling stock.  Also, asset acquisitions are typically more complicated and time-consuming than stock acquisitions because of the formalities of assigning specific assets, and the numerous third-party consents which are often required.

In a stock sale, the buyer acquires the target company’s stock directly from the selling stockholders, thus the buyer indirectly acquires all of the target company’s assets, rights, and liabilities.  Sellers often prefer to sell stock since they are not left with any contingent liabilities. In addition, sellers typically receive better tax treatment when selling stock as opposed to assets.

A merger is a stock acquisition in which two companies combine into one legal entity. The surviving entity assumes all assets, rights, and liabilities of the non-surviving entity.  Mergers sometimes require less than unanimous consent from the target company’s stockholders while still allowing the buyer to obtain 100% of the stock, which provides an advantage over a stock acquisition (where usually all of the stockholders must agree to sell).  A merger is therefore a good choice for buyers that want to acquire a going concern that has many stockholders, especially when some of them may be opposed to selling their stock.  However, the corporate laws of most states provide that dissenting stockholders to a merger can petition the court to force the buyer to pay them “fair value” for their shares. This process often adds additional time, complexity, and expense to a merger.

Definitive Agreements, Continued Due Diligence, and Closing

Once you have a signed LOI, the buyer’s counsel usually provides proposed drafts of the purchase agreement and other important transaction documents.  The purchase agreement is the primary transaction document, and it describes what is being sold, details the sale process, and lays out the liabilities and obligations of the parties.  The purchase agreement is usually heavily negotiated over 1-2 months and sometimes longer, depending on the complexity of the transaction and the parties’ respective willingness to compromise.

While the parties are negotiating the purchase agreement and other transaction documents, the buyer continues its due diligence of the target company.  The buyer may use certain information it discovers in the due diligence process to negotiate contractual protections (such as indemnification) in the purchase agreement or to adjust the purchase price.

There is often a period of time between signing the purchase agreement and closing. This may be for legal or practical reasons. For example, the parties may need to obtain regulatory and/or third-party consents for the transaction, but they may not want to pursue such consents until they have a signed purchase agreement.

Purchase agreements for M&A transactions are usually lengthy and complex documents.  Your legal counsel can help you understand your rights and obligations under the purchase agreement and help you negotiate a fair and reasonable agreement so that you can minimize your liability and hold on to your sale proceeds.