With increasing optimism regarding offshore wind energy and commercial solar power, renewable energy projects are starting to gain steam with Louisianians. Although utility-scale solar projects are novel in Louisiana, Act 301 (formerly Senate Bill 185) proactively addresses the concerns of taxpayers, landowners, and developers concerning solar leases.

Act 301, which was signed into law by Governor Edwards on June 14, 2021 and takes effect on August 1, amends two provisions of Louisiana Revised Statute § 30:1154, requiring the secretary of the Department of Natural Resources (DNR) to develop regulations governing solar leases. The Act tasks the DNR with promulgating minimum requirements for maintenance of property during a lease, including establishing minimum spacing between installations and setbacks, as well as decommissioning and final site closure upon termination of a lease.[1]

Although Act 301 aims to proactively mitigate future issues with solar farm decommissioning, the legislation likely has little bearing on residential use of solar devices on private property, as the Act clarifies that the development, installation, or operation of solar devices installed on private property for residential use may not be precluded by the DNR secretary.[2]

[1] https://www.legis.la.gov/legis/ViewDocument.aspx?d=1235566

[2] https://www.legis.la.gov/legis/ViewDocument.aspx?d=1235566

As part of an ongoing investigation led by the Delaware Attorney General’s Office into the potential environmental impacts of legacy industrial activities in the state, Delaware has reached a $50 million settlement agreement with DuPont Co., Corteva, and the Chemours Co. for alleged damages resulting from these companies’ use of chemicals called PFAS.

Dubbed the “forever chemical,” per- and polyfluoroalkyl substances, or PFAS, are a large group of synthetic chemicals that includes perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), and GenX Chemicals.[1] PFAS are ubiquitous, having been manufactured and used worldwide since the 1940s in a number of different products, such as non-stick cookware, water-repellent clothing, coatings for paper used in food packaging, stain-resistant fabrics and carpets, and other products that resist grease, water, and oil. Certain studies have found that PFAS may be associated with a range of adverse health impacts including developmental and reproductive problems, increased risk of cancers in the liver and kidney, thyroid disease, asthma, and immunological effects. The most common PFAS exposure routes are through ingesting food, drinking water, and inhaling dust and particulates.

DuPont, Corteva, and Chemours have agreed to collectively pay $50 million to resolve their alleged responsibility for elevated PFAS levels in the waterways and groundwater of all three counties in Delaware.[2] Under the settlement agreement, DuPont and Corteva will each pay $12.5 million, while Chemours will pay $25 million. The companies will fund up to an additional $25 million if they settle similar claims with other states for more than $50 million in the next eight years.[3]

PFAS litigation has expanded significantly in recent years. The widespread use of these chemicals could implicate liability for companies and products in a variety of industries. For instance, DuPont, Corteva, and Chemours committed $4 billion at the start of the year to cover alleged liabilities for their past use of PFAS and recently agreed to pay $83 million to settle multidistrict litigation in Ohio over PFOA.[4] In 2018, the 3M Company settled with the State of Minnesota for $850 million for alleged damages to drinking water and natural resources as a result of supposed PFAS contamination.[5]

The arrival of a new presidential administration, which promised to focus on PFAS regulation and has appointed key government officials with experience in dealing with PFAS issues, is expected to coincide with and potentially enable an expansion in the volume and scope of both regulation and litigation. Companies whose operations and products use, or historically used, any PFAS would be well-advised to consider strategies to evaluate, address, and mitigate legal risks and potential litigation.

The author would like to thank summer law clerk, Olivia Guidry, for her work in developing and preparing this blog article. 

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[1] EPA, Basic Information on PFAS, https://www.epa.gov/pfas/basic-information-pfas (last visited July 14, 2021).

[2] Delaware Department of Justice, State Resolves Natural Resource Damage Claims, Delaware.gov (July 13, 2021), https://news.delaware.gov/2021/07/13/state-resolves-natural-resource-damage-claims/.

[3] The $50 million settlement will go to the Natural Resources and Sustainability Trust, which will fund purification of drinking water; restoration of natural resources; environmental sampling and testing for PFAS in the ground, water, and air; research and development focused on PFAS; and community environmental justice and equity grants.

[4] Jef Feely, Tiffany Kary, & Tony Robinson, Dupont, Chemours in $4 Billion ‘Forever Chemicals’ Cost Pact, Bloomberg (Jan. 22, 2021 9:24AM), https://www.bloomberg.com/news/articles/2021-01-22/dupont-and-chemours-in-4-billion-forever-chemicals-cost-pact.

[5] Minnesota 3M PFC Settlement, https://3msettlement.state.mn.us/ (last visited July 14, 2021).

Louisiana law requires the timely and prompt payment of all amounts due a discharged, resigning, or retiring employee.  Under Louisiana law, vacation pay is considered an amount due if the employee was eligible for vacation with pay, had accrued the right to take vacation with pay, and the employee had not taken or been compensated for the vacation time as of the date of the employee’s departure.  The recent retirement of Barry Alvarez, Wisconsin’s former head football coach and athletic director, illustrates how accrued but unused vacation can add up. In Alvarez’s case, as reported by 247Sports.com, Wisconsin paid him $301,133 for his unused vacation (equal to 1272 hours, more than 31 weeks).  Alvarez’s situation is a reminder to all employers to pay attention to accrued but unused vacation balances.  For more on the Alvarez story, see https://247sports.com/college/wisconsin/Article/Barry-Alvarez-huge-payout-saved-vacation-time-Wisconsin-athletic-director-retire-football-Badgers-167571891/?utm_source=facebook&utm_medium=news_tab&utm_content=algorithm

The United States has become one of the largest and rapidly-expanding wind markets in the world, with the U.S. Energy Department investing in both land and offshore research and development projects in an effort “to advance technology innovations, create job opportunities and boost economic growth.”[i] In the future, the Energy Department predicts that the U.S. wind industry will constitute a “critical part” of its strategy to decrease carbon pollution, diversify the U.S. energy economy, and bring American-made clean energy technologies to the global market.[ii]

Offshore wind projects, in particular, present significant opportunities to the U.S. due to abundant offshore wind resources, significant siting and development opportunities, as well as electricity demand growth and scheduled power plant retirements in coastal states.[iii] Moreover, an expansive offshore wind industry would contribute significantly to important environmental and economic benefits for the U.S. such as reduced greenhouse gas emissions, decreased air pollution from other emissions, reduced water consumption, greater energy diversity and security, and increased economic development and employment.[iv]

In early June 2021, the Biden administration tagged the Gulf of Mexico as an area of interest to explore the potential of offshore wind energy development, as part of the administration’s overarching goal to increase the U.S.’s growth in clean energy over the course of the next decade. Following this announcement, the Department of Interior’s Bureau of Ocean Energy Management (“BOEM”) published a Request for Interest (“RFI”), targeting the coastal states of Louisiana, Texas, Mississippi, and Alabama, to gather information on and gauge interest in offshore wind energy development in the Gulf of Mexico. Thereafter, BOEM held its first Gulf of Mexico Intergovernmental Renewable Energy Task Force Meeting, the goal of which was to (1) “facilitate coordination among federal, state, local, and tribal governments regarding the wind energy leasing process on the Outer Continental Shelf in the Gulf of Mexico,” (2) “share information about existing Gulf of Mexico activities and marine conditions,” and (3) provide updates on regional offshore wind goals and developer activities.”[v]

And most recently, the Louisiana Governor’s Office hosted the first-ever Louisiana Wind Week 2021 from June 21st through June 25th.[vi] Wind Week 2021 consisted of five virtual sessions, including presentations, panel discussions, as well as Q&A sessions with the public, to explore various topics pertaining to Louisiana’s future in offshore wind energy development. The sessions included presentations on and discussion of “Offshore Wind Leasing and Administration Priorities,” “Minimizing Potential Impacts,” “Engaging Existing Users and Understanding Their Concerns,” “Connecting Offshore Wind to Users,” and “Existing and Future Supply Chain Capacity.”

One of the biggest impressions from Louisiana Wind Week 2021 is that offshore wind energy development in the Gulf of Mexico, while still in its infancy, represents an area of great economic potential for the State of Louisiana. Additionally, Louisiana’s decades-long experience with offshore oil and gas development puts the State in a prime position, in terms of both experience and infrastructure, for offshore wind energy development.

We will continue to monitor and report on developments in offshore wind energy development in the Gulf of Mexico.

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[i] See https://www.energy.gov/science-innovation/energy-sources/renewable-energy/wind.

[ii] https://www.energy.gov/science-innovation/energy-sources/renewable-energy/wind.

[iii] National Offshore Wind Strategy: Facilitating the Development of the Offshore Wind Industry in the United States Report, September 2016, U.S. Department of Energy and U.S. Department of the Interior.

[iv] National Offshore Wind Strategy: Facilitating the Development of the Offshore Wind Industry in the United States Report, September 2016, U.S. Department of Energy and U.S. Department of the Interior.

[v] https://www.boem.gov/renewable-energy/state-activities/gulf-mexico-gom-intergovernmental-renewable-energy-task-force.

[vi] https://gov.louisiana.gov/index.cfm/page/124#:~:text=Louisiana%20Governor%27s%20Office%20is%20hosting,of%20the%20state%27s%20energy%20future.

In the United States, name, image, and likeness (“NIL”) are the three elements that make up a legal concept known as the right of publicity. The right of publicity is an intellectual property right that protects against the misappropriation of a person’s name, likeness, or other forms of personal identity—such as nickname, pseudonym, voice, signature, likeness, or photograph—for commercial benefit. NIL compensation is compensation, typically money, earned by athletes for their NIL.

Prior to July 1, 2021, NCAA regulations prevented student-athletes from receiving any form of compensation, despite immense pressure from players and fans. This pressure escalated in light of the United States Supreme Court’s recent unanimous decision in NCAA v. Alston, when the Court declined to grant the NCAA immunity from federal antitrust laws and held that athletes can receive “extra-educational benefits” from their institutions. As a result of this decision and various pending state laws, the NCAA will now allow student-athletes to benefit from their marketability, namely NIL rights during their tenures as college athletes.

While NCAA athletes are now able to monetize their social media accounts, sign autographs, coach camps, and participate in advertising campaigns, these athletes must protect their brands through an effective trademark strategy. There are multiple aspects of an athlete’s NIL that can be trademarked, but the focus should be on the athlete’s name, logo, or slogan.

Name, logo, or slogan recognition will have a direct correlation in an athlete’s ability to monetize their likeness. Obtaining a trademark on these items prevents other parties from distributing products using that name, logo, or slogan without the athlete’s permission. Athletes may then use the trademarked NIL to build a brand, be it through social media, merchandise sales, advertising campaigns, or signing autographs.

Limitations Under the NCAA’s Interim Policy

The NCAA’s waiver of NIL restrictions does not create a free-for-all for college athletes. This is not a “pay-for-play” model of college athletics, and the NCAA has made clear this is an interim move until federal legislation is in place. However, as it stands, state legislation and universities will have an oversight role in the athlete’s NIL rights.

For example, athletes in Texas will be prohibited from endorsing alcohol, tobacco products, and sports betting. Further, universities have the power to object to deals that conflict with existing agreements the university has—i.e., a university football player may have issues endorsing Adidas when the university is sponsored by Nike. In most cases, athletes will be prohibited from displaying school marks or logos while monetizing their own NIL. For states that have passed laws related to NIL, universities are responsible for determining whether athletes’ NIL activities are consistent with state law. In states without NIL laws, such as Louisiana at present, athletes may engage in NIL activities without violating NCAA rules that have historically prohibited an athlete’s ability to monetize their likeness.

What Comes Next?

Federal legislation will likely provide student-athletes across the country with a uniform policy on how best to monetize their NIL in a fair, efficient manner. The most effective way for college athletes moving forward to protect their names and brands is by filing trademark applications, particularly for endorsement services and specified products. Athletes will then be able to accept sponsorship deals, market products, and create their own brands, while simultaneously protecting their NIL through a trademark strategy.

The authors wish to thank their law clerk, Cullen McDonald, for his assistance in preparing this article. 

Effective today, July 1, the NCAA has officially suspended the organization’s rules prohibiting athletes from selling the rights to their names, images, and likenesses (“NIL”). Despite the NCAA’s longstanding principles that payments to athletes while attending college would undermine amateurism of college athletics, the organization’s Division I board of directors decided Wednesday that it would allow all athletes to earn money from their NIL.

The decision by the NCAA comes just one day before multiple states had NIL laws set to go into effect allowing athletes to profit from NIL. To prevent athletes at schools in those states (including Texas, Mississippi, and Alabama) from gaining an advantage, the NCAA has allowed students in all states to profit from NIL until a nation-wide NIL law is approved by Congress.

Starting today, players will be able to monetize their social media accounts, sign autographs, teach camps, start their own businesses, create intellectual property, and participate in advertising campaigns. One thing this does not do is grant schools the ability to pay athletes salaries for their athletic performance or use payments for recruiting purposes. Individual schools will be able to create their own guidelines and rules for their individual athletes. Athletes are also now allowed to sign with agents to help them negotiate and sign endorsement deals without risking their college eligibility.

According to the Action Network, LSU gymnast, Olivia Dunne, and LSU basketball player, Shareef O’Neal, are 2 of the top 3 athletes who are favored to capitalize the most on NIL due to social media followings and name recognition. Derek Stingley, Jr., LSU defensive back, also projects to cash in from his NIL due to popularity.

Texas Tech QB, Tyler Shough, and University of Texas running back, Bijan Robinson, who is a top 10 Heisman trophy candidate, are both expected to profit from their NIL from social media engagement and recognition.

NIL deals began rolling in as soon as the clock struck midnight, ushering in a whole new era of college athletics. Miami QB, D’Eriq King, has already signed an endorsement deal with “College Hunks Hauling Junk” which will reportedly net King $20,000.00. King’s deal was the first NIL deal that reported the monetary payout to the athlete. Wisconsin QB, Graham Mertz, has also already filed for a trademark for his personal brand logo. I expect players to get creative with their newfound freedoms as college athletics navigates these new waters.

A panel of 12 lawyers from around the world recently proposed a legal definition for a new crime: ecocide. For years, the panel, along with various international groups, has sought to amend the Rome Statute of the International Criminal Court to include ecocide as one of the crimes within the court’s jurisdiction.

Currently, the ICC prosecutes only four crimes: genocide, crimes against humanity, crimes of aggression, and war crimes. The addition of ecocide would enable the court prosecute parties responsible for major ecological harms, which could include businesses, governments, and their respective leaders.

The proposed definition is 165 words, which is described as ‘unlawful or wanton acts committed with knowledge that there is substantial likelihood of severe and either widespread or long-term damage to the environment.’ Notably, the definition does not require harm to persons; however, the act(s) must cause widespread and severe harm.

The adoption of the fifth crime could greatly expand the role of the ICC. However, the proposal is far from done. The panel’s campaign would require comment from a host of nations. One of the Rome Statute signatories would then need to formally propose an Amendment to the Treaty, which would be formally debated at the Convention’s annual meeting. If this occurs, debate over a precise definition would likely last years or even decades.

The United States, India, Russia, and China, the world’s economic leaders, are not signatories to the Rome Statute, but could weigh in on the proposed amendment.

Overall, the proposed adoption of a fifth crime may foster debate throughout the world on matters relating to ecological harm that effects not only humans, but the planet as a whole.

Originally published in the Ark-La-Tex Association of Professional Landmen Register

Carbon capture and storage (“CCS”) is the process of capturing carbon dioxide emissions from large point sources, and then transporting it to a storage location for deposit in underground formations where it will not re-enter the atmosphere.  By returning CO2 emissions that resulted from the oxidation of carbon when fossil fuels are burned to the place where the fossil fuels were extracted, CCS can reduce the amount of pollutants released into the atmosphere, thus, potentially limiting climate change.  It is estimated that technologies for carbon capture, use, and storage may eventually be able to capture a vast majority of carbon dioxide emissions from power plants, refineries, petrochemical plants and other industrial facilities.  Optimistically, at least a portion of the carbon dioxide captured from this technology can be put to productive use in enhanced oil recovery or the manufacture of fuels, building materials, and more.  CCS is viewed as the primary practical way to achieve deep decarbonization in the industrial sector and could contribute 14 percent of the global greenhouse gas emissions reductions required under carbon neutral target goals and regulations by 2050.

Focusing on innovation, rather than elimination, this trend of development parallels the evolution of the oil and gas industry into an energy industry — one that invests in low-carbon and CCS technologies.

Notably, CCS technologies are being advanced out of the Natural Energy Technology Laboratory in West Virginia and other institutions. However, latent problems associated with global warming, including severe weather, that would be tackled by CCS aren’t always far from home.  While it can be debated whether climate change was a contributing cause, the State of Texas was ambushed by an unprecedented winter storm in February 2021, leaving almost the entire state with no power.  This prompted the new Energy Secretary Jennifer Granholm to advise the State of Texas to consider upgrading its connectivity to the national grid so that neighbors can help in times of crisis.

But the future need not be bleak. This April, Exxon called for expansive industry-government collaboration to develop large carbon capture and storage projects around Houston, Texas, namely, due to Houston’s footing as a home for major refining, petrochemical, manufacturing and power facilities. Exxon reported that it has already briefed government officials and industry groups, including Texas Governor Greg Abbott, Houston Mayor Sylvester Turner, U.S. Senator John Cornyn, House members in the Region, and the Greater Houston Partnership. Infrastructure estimates predict that facilities in Houston could capture and store 50 million metric tons of carbon dioxide annually by 2030 and 100 million by year 2040. The benefits of this project don’t end there, as Exxon’s proposal says the innovation in Houston could be deployed to other U.S. areas with heavy industry near storage sites, like the Midwest and the Gulf region.

British Petroleum also recently announced that it will spend $1.3 billion to build a network of pipelines and associated infrastructure to collect and capture natural gas produced as a byproduct from oil wells in the Permian Basin and in New Mexico.  Natural gas is a potent greenhouse gas, and this project sought to eliminate the routine flaring of natural gas by 2025.  This is viewed as a precedent setting carbon capture and reuse project.

Next door in Louisiana, U.S. Senator Bill Cassidy has joined a bipartisan group of lawmakers in introducing the nation’s first comprehensive carbon dioxide infrastructure package, namely, the Storing CO2 and Lowering Emissions (SCALE) Act, which could make Louisiana a national hub for carbon capture and sequestration. The bill would support the buildout of infrastructure to transport CO2 from the sites of capture to locations where it can be either used in manufacturing or sequestered safely and securely in underground formations. The legislation could also provide critical regional economic opportunities and create thousands of jobs. An analysis released by the Decarb America Project projects the possible effects as creating 13,000 direct and indirect jobs per year through the 5-year authorization. However, the Project acknowledged this estimate is conservative, as it does not include the thousands of jobs likely to be created by retrofitting energy-intensive facilities, such as cement and steel plants, or by building direct air capture plants.

The cost-benefit analysis of CCS technology is also improving daily. As part of a marathon research effort to lower the cost of carbon capture, chemists have demonstrated a way to seize carbon dioxide by using a different solvent (EEMPA) in the capture system that reduces costs by 19 percent compared to current technology. Notably, the U.S. Department of Energy’s Pacific Northwest National Laboratory (“PNNL”) plans to produce 4,000 gallons of EEMPA in 2022 at a 0.5-megawatt scale inside testing facilities at the National Carbon Capture Center in Shelby County, Alabama.  This project is led by the Electric Power Research Institute in partnership with Research Triangle Institute International and PNNL. The eventual goal is to reach the U.S. Department of Energy’s goal of deploying commercially available technology that can capture CO2 at a cost of $30 per metric ton or less by 2035.

CCS is a promising phoenix set to arise from the ashes of the world’s aging industrial practices, and America has a unique opportunity to emerge smarter and stronger than before as a leader in CCS technology. No matter the source, no matter the strategy, CCS is on the rise and evolving into an integral part of the energy industry.

This article was written and submitted by Hattie Guidry, Arielle Anderson, Jourdan Curet, and Kristi Obafunwa with Kean Miller LLP.  Kean Miller LLP is a full-service law firm located in Texas and Louisiana that counsels clients on a wide variety of substantive legal areas and state and federal laws, including a specialized practice in the energy and environmental industry.  Our attorneys are some of the leading practitioners in their field, including many who have helped shape the legal landscape.

Currently, 29 states permit some form of remote online notarization (RON) and Louisiana is (almost) one of them.[1] House bill 274 of the 2020 regular session of the Louisiana State Legislature was signed into law on June 11, 2020. HB 274, among other things, permits the use of remote online notarization in Louisiana. However, the effective date of the bill is not until February 1, 2022.  So, although it is codified, it is not in effect until next year.

It is worth noting that a similar bill has been introduced on the federal level for the second year in a row. Senators Cramer (R-ND) and Warner (D-VA) have introduced S. 1625, the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2021 or the SECURE Notarization Act of 2021. This bill would allow every notary public in the United States to perform RONs.[2] If the SECURE act is signed into law on the federal level, it would supersede any pending state legislation and RONs may be permitted prior to February 1, 2022.

Electronic Notarization vs. Remote Online Notarization

Currently, Louisiana notary publics may notarize a document electronically which simply means instead of an ink signature, the document may use an electronic signature. However, the notary, the signer, and any witnesses must still be face-to-face in person.

RON allows for notaries to notarize documents for signers who are not physically present with them, but are present through audio-visual technology.

House Bill 274

Under HB 274, any Louisiana notary with an existing commission may perform RONs as long as they 1) contract with a RON technology provider, 2) complete a RON training course, and 3) submit an application to the Louisiana Secretary of State.[3]

The procedure for performing a RON is fairly simple. The first step is for both parties (the notary and the party for whom the notarized document is for) to log on to the dedicated RON platform where their identities will be confirmed. Next, the notary and the signer will meet through audio-visual technology. At this time, the notary shall verify the identity of the party appearing remotely by confirming the signer’s identity either by asking to see some form of identification or they may confirm the signer’s identity through their own personal knowledge. The signer then uses an electronic signature to sign the document. The notary will then review the document, fill out the notarial certificate, and attach a digital certificate containing their electronic signature. The final step requires the notary to create an electronic journal entry through the RON platform. The notarization is also recorded, and the notary shall save the recording. The notary is required maintain the audio-visual recording for at least ten years after the date of the RON.[4]

When a notary is performing a RON for a party who is physically not in their presence, if the type of notarial act requires a witness, the witness must be physically present with the signer. The notarial act is deemed to be executed in the parish where the notary public is physically located at the time of the RON.

Conclusion

For those who have lived through the COVID-19 pandemic, remote notarization is a much-welcomed change. While many states enacted temporary measures during the pandemic to address ongoing notarial needs during stay-at-home orders, the passage of HB 274 will ensure notaries will be able to perform their duties safely regardless of the imposition of any stay-at-home orders, and, at the same time, provide the convenience to individuals needing the services of a notary to obtain those services from the comfort of their home.

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[1] Margo H. Tank, et al., “[UPDATED] Coronavirus: Federal and state governments work quickly to enable remote online notarization to meet global crisis”, DLA Piper (27 April 2021) (https://www.dlapiper.com/en/us/insights/publications/2020/03/coronavirus-federal-and-state-governments-work-quickly-to-enable-remote-online-notarization/)

[2] “Notarize Congratulates Senators Warner and Cramer on the Introduction of the SECURE Notarization Act of 2021”, Businesswire (17 May 2021) (https://www.businesswire.com/news/home/20210517005873/en/Notarize-Congratulates-Senators-Warner-and-Cramer-on-the-Introduction-of-the-SECURE-Notarization-Act-of-2021)

[3] “How to Become a Remote Online Notary in Louisiana”, National Notary Association, (https://www.nationalnotary.org/knowledge-center/remote-online-notary/how-to-become-a-remote-online-notary/louisiana#:~:text=Does%20Louisiana%20allow%20remote%20online,for%20signers%20in%20any%20location.)

[4] House bill 274, Louisiana State Legislature, 2020 Reg. Sess. (Louisiana 2020). https://legis.la.gov/legis/ViewDocument.aspx?d=1182325

The Louisiana Supreme Court recently interpreted the fax-filing statute to require “delivery” of an original pleading to the clerk within seven days after the fax filing. If the pleading is to be given the fax-filing date, you must now “deliver” the original and the fee to the clerk before the seven-day deadline. And you’re expected to prove when the “delivery” occurred.

In Petit-Blanc v. Charles, 2021-00094 (La. 4/20/21); — So.3d —-, the plaintiff fax-filed a petition for damages on November 13, 2019 concerning a November 18, 2018, automobile accident. The clerk received the original petition and fee on November 25. The trial court overruled the defendants’ exception of prescription, and the First Circuit denied writs. On writ to the Supreme Court, the lower decisions were reversed in a per curiam opinion.

The Court noted that the 2016 amendment to La. R.S. 13:850(C) requires a fax-filing party to “deliver” the original document to the clerk within seven days of the fax transmission. The earlier version of the statute only required the party to “forward” the original, which was satisfied when the original was simply placed in the mail. But “delivery” requires “actual or constructive possession” by the clerk. The Court concluded that merely transmitting an original document within the deadline is insufficient. Instead, the filing party must establish that the document was delivered to the clerk within the seven-day deadline. Because the plaintiff had no evidence to establish when the clerk received the original pleading, he couldn’t meet his burden of proving “delivery” to take advantage of the fax-filing date, and therefore avoid prescription.

This interpretation of La. R.S. 13:850(C) should only impact parties filing original pleadings where timeliness is essential. For these time-sensitive filings, the best option may be to send it by certified mail if you can’t hand-deliver the original. The Supreme Court cited favorably Clark v. Wal-Mart Stores, Inc., 18-0052 (La. App. 5 Cir. 10/31/18), 259 So. 3d 516, which held a petition was “delivered” to the clerk of court when a clerk’s office employee signed a green card for the plaintiff’s certified mail. Some record of the pleading’s delivery is going to be necessary.

The opinion is Petit-Blanc v. Charles, 2021-00094 (La. 4/20/21); — So.3d —-, 2021 WL 1540984.