USA – LOUISIANA Law and Practice Contributed by: Allan Kanner, Conlee Whiteley and Cynthia St. Amant, Kanner & Whiteley, LLC
requires that a class must be defined “objectively in terms of ascertainable criteria” that cannot be “sat- isfied if it is necessary for the court to inquire into the merits of each potential class member’s cause of action to determine whether an individual falls within the defined class”. However, in practice, they have become more similar again, as a requirement for ascertainability, to a greater or lesser extent, has been read into the application of Federal Rule 23 in most of the federal circuit courts throughout the USA. 1.3 Implementation of the EU Collective Redress Regime There is no applicable information in this jurisdiction. 2. Legal Framework 2.1 Collective Redress and Class Action Legislation La. C.C.P. Articles 591–597 apply to class actions in Louisiana state courts. Article 591 and subsequent jurisprudence interpreting it primarily govern the cer- tification of class actions. Like Federal Rule 23, Article 591 has two parts, the elements of which are largely the same as those in Rule 23. Article 591 (A) contains the threshold requirements any proposed class must satisfy for certification: • numerosity – the class is so numerous that joinder of all members is impracticable; • commonality – common questions of fact or law exist and apply to all the class members; • typicality – claims or defences of the representa- tive parties are typical of those of the other class members; • adequacy – the representative parties will fairly and adequately protect the interest of all class mem- bers; and • ascertainability – the class is defined objectively to allow the court to ascertain the identity of the class members without having to conduct mini-trials or inquire into the merits of each class member’s claims. Article 591 (B) provides additional requirements for three categories of classes. Thus, once the require-
ments of Article 591 (A) are met, the requirements for one of the three categories of classes identified in 591 (B) must also be met. • Article 591 (B)(1) focuses on suits that should be brought as a class action to avoid prejudices that may result from individual suits. Two types of preju- dice are covered by 591 (B)(1): (a) 591 (B)(1)(a) looks to avoid prejudice to the defendant/party opposing the class due to the potential for resulting incompatible standards of conduct from individual actions – an exam- ple of this type of class is a trespass claim brought by multiple landowners against the same defendant that could subject the defend- ant to incompatible standards regarding his or her right to use the land if individual decisions are sought; and (b) 591 (B)(1)(b) looks to avoid prejudice to other class members and is appropriate where individual actions would impair or impede the ability of other similarly situated individuals to protect their interests – an example here is a situation where many individuals have claims against a limited or common fund, such as an insurance policy. Classes certified pursuant to Article 591 (B)(1) are mandatory classes. There are no opt-outs. • Article 591 (B)(2) concerns injunctive or declara- tory relief (the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole). Employment discrimination claims are an example of a 591 (B)(2) class, where the goal is to change the defendant’s conduct, as opposed to obtaining monetary dam- ages. A class certified under Article 591 (B)(2) is also a mandatory class, but in this instance, notice to class members is not necessary. • Article 591 (B)(3) is a damages class, where class members seek monetary damages as the result of a defendant’s conduct. The requirements for a monetary class focus on manageability – ie, ques- tions of law or fact common to the members of the class predominate over any questions affect-
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