Louisiana in General

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The Louisiana Supreme Court has refused to review the decision of the First Circuit Court of Appeal in ConAgra Foods, Inc. vs. Bridges, 2010-0907 (La. App. 1st Cir. 10/29/10), 48 So.3d 1249. In ConAgra Foods, the First Circuit determined that ConAgra Foods, Inc. would receive the benefits of Louisiana net operating loss carryovers held by subsidiaries, which had been sold in Internal Revenue Code (“IRC”) §338(h)(10) transactions . Under federal tax law, the parties to a stock sale can elect IRC §338(h)(10) treatment such that the stock sale is treated as an asset sale for income tax purposes and the tax attributes of the subsidiaries that are sold are acquired by the selling parent corporation. The steps that occur under an IRC §338(h)(10) transaction are as follows:
Continue Reading Louisiana Supreme Court Refuses to Review Net Operating Loss Decision

In a recent decision, the Louisiana Second Circuit Court of Appeals upheld the application of the longstanding subsequent purchaser doctrine to an oilfield legacy case.  The decision Wagoner v. Chevron U.S.A. Inc., et. al., No. 10-45507 (La. 2. Cir. 2010) affirmed the legal principle that the right to recover for property damages is a personal…

As companies expand their operation into foreign states, it is essential to determine the potential tax liability for conducting business in those jurisdictions.  Although states differ as to their treatment of out-of-state taxpayers, all states are bound by the U.S. Constitution and federal law and jurisprudence, which require a nexus between a taxpayer and a…

Kean Miller is pleased to announce the relocation of its downtown Baton Rouge headquarters from One American Place to 80,000+ square feet of re-imagined law office space in II City Plaza effective today, Monday, January 10, 2011. II City Plaza is the only Class A office space constructed in Baton Rouge in the last 25 years.…

On March 17, 2010, Mississippi Governor Hayley Barbour signed into law an amendment to Mississippi’s public bid law, more specifically, to Mississippi’s resident “preference law.” Miss. Code Ann. § 31-3-21(3). Under this recent amendment, all non-Mississippi resident contractors who bid on Mississippi public works contracts must attach to their bid a copy of their own…

The application of corporate veil piercing theories to limited liability companies is still in its early stages in Louisiana jurisprudence. In Hollowell v. Orleans Regional Hosp. LLC, the U.S. Court of Appeals for the Fifth Circuit became the first court applying Louisiana law to pierce the veil of a Louisiana limited liability company on an “alter ego basis,” adopting from corporate veil piercing jurisprudence a non-exhaustive list of factors, namely: 1) commingling of corporate and shareholder funds; 2) failure to follow statutory formalities for incorporating and transacting corporate affairs; 3) undercapitalization; 4) failure to provide separate bank accounts and bookkeeping records; and 5) failure to hold regular shareholder and director meetings. 217 F.3d 379, 385-386 (5th Cir. 7/18/00); citing Riggins v. Dixie Shoring Co., 590 So.2d 1164, 1168 (La. 1991). The court emphasized that the inquiry is in fact a “totality of the circumstances” test, and “courts are not limited to these five factors when invoking the alter ego doctrine.” Id., at 387, citing Riggins, at 1168.
Continue Reading Piercing the Veil of an LLC – The Fourth Circuit Weighs In

On September 30, 2010, the Internal Revenue Service issued guidance providing relief to homeowners who have suffered property losses due to the effects of certain imported drywall installed in homes between 2001 and 2009.  In particular, the IRS issued Revenue Procedure 2010-36 which enables affected taxpayers to treat damages from corrosive drywall as a casualty loss and provides a ”safe harbor” formula for determining the amount of the loss.
Continue Reading IRS Issues Safeharbor Relief for Those Impacted by “Chinese Drywall”

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

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

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During the 2010 Session, the Louisiana Legislature enacted Act 986 to amend La. R.S. 30:2022, the state law concerning the Louisiana Department of Environmental Quality’s (LDEQ) permit process. The legislation began as House Bill 1169 and was authored by Representative Karen St. Germain. Governor Bobby Jindal signed the legislation on July 7, 2010, as Act 986. The Act became effective that same day.

The Act enacted La. R.S. 30:2022(D), which requires greater transparency from LDEQ regarding changes made to permits, renewals, extensions, and modifications. First, Act 986 requires that, if requested by a permit applicant, LDEQ provide the applicant with a written summary of the specific changes to the existing permit whenever LDEQ prepares a draft database permit for the renewal, extension, or substantial permit modification of an existing hazardous waste permit, solid waste permit, Louisiana Pollutant Discharge Elimination System (LPDES) permit, or air quality permit. The database is LDEQ’s Tools for Environmental Management and Protection Organization (TEMPO) database system. Previously, LDEQ was under no obligation to inform a permit applicant of each and every change that had been made in the renewal, extension, or substantial modification of an existing permit.Continue Reading Legislature Changes Permit Process at the Louisiana Department of Environmental Quality