USA – LOUISIANA Law and Practice Contributed by: Allan Kanner, Conlee Whiteley and Cynthia St. Amant, Kanner & Whiteley, LLC
Kanner & Whiteley, LLC 701 Camp Street New Orleans LA 70130 USA Tel: +1 504 524 5777 Email: c.whiteley@kanner-law.com Web: www.kanner-law.com/
1. Policy Development of Collective Redress/Class Action Mechanisms 1.1 History and Policy Drivers of the Legislative Regime Louisiana Code of Civil Procedure Article 591 cur- rently provides the prerequisites for collective redress, referred to as “class actions” in Louisiana. Originally enacted in 1961, the Code of Civil Procedure pro- vided the first statutory authority for class actions in Louisiana, which was primarily patterned on the US Federal Rules of Civil Procedure, Rule 23 governing class actions in US federal courts. However, given Louisiana’s liberal joinder and intervention rules, the Louisiana article recognised only “true” class actions (an action with a joint, common or secondary right to enforcement where the owner of the primary right does not enforce it and a class member becomes enti- tled to enforce it), rather than “hybrid” or “spurious” class actions recognised by Federal Rule 23 prior to the 1966 amendments. Prior to 1961, Louisiana suits of a class nature were principally based in equity. The adoption of these arti- cles codified the rules to be applied in future cases. Early class action, jurisprudence recognised a strict common interest requirement of the original Rule 23 “true” class action but over the years the Louisiana Supreme Court substantially liberalised the availability of class actions within district judges’ discretion, pro- vided that each of the requirements of Federal Rule 23 (b) were met and due consideration of the relationship between the parties was given. As its class action law developed, Louisiana saw a fur- ther divergence from these limitations. Courts began
to allow the class action device to be used to certify mass tort actions within judicial discretion, particularly in single-event disaster cases. This jurisprudence was later expanded to include multiple exposure cases. However, in 1997, the Louisiana Supreme Court curbed this expansion. The court re-examined Loui- siana law, taking into account recent federal Supreme Court and Fifth Circuit Court of Appeal decisions, and decertified a multiple incident, multiple loca- tion toxic exposure case that had been certified as a class action by the district court. Considering that Louisiana’s code articles were modelled on Federal Rule 23, promulgated before the increase of mass tort actions, and with the intent to recognise only “true” class actions, the court found a certification of this nature strayed too far from legislative intent. The court directed lower courts to specifically focus on whether the plaintiff’s and class members’ injuries truly arise from a common cause, and emphasised the inappro- priateness of a class action device to resolve untested or novel theories of recovery. In 1997, the legislature amended C.C.P. Article 591, which now more closely tracks Federal Rule 23. In 2021, the legislature further amended C.C.P. Article 592. 1.2 Basis for the Legislative Regime, Including Analogous International Laws The Louisiana Class Action code articles were orig- inally patterned after the US Federal Rules of Civil Procedure Rule 23 but there have been statutory and jurisprudential divergences from the original language, intent and application of Rule 23, and the rules have been amended over time. Currently, a significant dif- ference between Federal Rule 23 and La. C.C.P. Arti- cle 591 is found in Article 591 (A)(5), which legislatively
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