USA – LOUISIANA Law and Practice Contributed by: Allan Kanner, Conlee Whiteley and Cynthia St. Amant, Kanner & Whiteley, LLC
venue. An action brought on behalf of a class must be brought in a parish of proper venue as to the defend- ant. La C.C.P. Article 591 applies to all cases brought in any state court in Louisiana with common facts and legal issues. However, in 2005, the US Congress passed the Class Action Fairness Act (CAFA), which significantly expanded federal jurisdiction over class actions, leav- ing only small, localised classes in state court. Thus, even if jurisdiction and venue are proper in state court as to all parties, most cases filed as class actions cas- es can be removed from state court to federal court. Thereafter, the federal rules of civil procedure apply to the action. State substantive law will continue to apply to the same extent as before the removal to federal court. Class actions can also be filed directly in US federal courts in Louisiana if federal jurisdiction is available under CAFA, the rules of diversity jurisdiction or fed- eral question jurisdiction. Federal Rule 23 applies to those cases. 3.2 Overview of Procedure A class action can be brought in Louisiana state district court by filing a petition alleging facts that support the cause(s) of action, that those facts are common to a sufficiently numerous group of people and that each of the requisites for C.C.P. Article 591 can be met. Once the petition is filed and the par- ties are served, the plaintiff is required to file a motion for class certification within 90 days, in which further information supporting the plaintiff’s allegations are set forth and are often supported by affidavits and/or declarations of the attorney bringing the case and/or experts who opine that the case is best litigated as a class action. Discovery as to class issues in the case is allowed before the class hearing. Opponents of the class action will file opposition papers, and after the briefing is complete, the court will hold a hearing to determine if the class should be certified, which may include expert testimony. A party opposing the order granting or denying class certification has a right to take a direct appeal to the governing appellate court challenging the decision.
Louisiana has five different circuit courts of appeal among which the district courts are divided regionally, and each appellate court is governed by the Louisiana Supreme Court. There can be differences in interpre- tation among each circuit as case law develops but Article 591, et seq, and the Louisiana Supreme Court’s interpretation of its meaning is to be applied through- out the state. Any significant difference among the circuit courts will ultimately be resolved by the Loui- siana Supreme Court. 3.3 Standing A class action is a procedural mechanism that enlarg- es no substantive rights. Accordingly, to bring any action, regardless of class allegations, a plaintiff must first meet the standing requirements in the relevant jurisdiction. In federal court, a plaintiff must be able to plausibly allege that they suffered an actual injury (versus a hypothetical injury) that is fairly traceable to the conduct of the defendant, and that the court’s decision in the matter is likely to remedy. Addition- ally, a class representative must also have first-hand knowledge or experience of the conduct at issue; a sufficient stake or interest in the litigation such that they will participate conscientiously; claims or defenc- es that are typical of and not antagonistic to the claims of the class members so that they can fairly and ade- quately protect the other members of the class; and freedom from any conflicts that would affect any out- come to the class. In Louisiana state court, however, the threshold standing requirement (termed “a right of action”) is slightly different: an action can only be brought by someone who has a real and actual interest that he or she asserts in the action. Where a plaintiff’s right of action is challenged, a Louisiana court will determine whether the plaintiff belongs to a particular class to which the law grants a remedy for the particular harm alleged in the plaintiff’s petition. 3.4 Class Members, Size and Mechanism – Opting In or Out A class must be defined so that class membership can be easily ascertained by using objective criteria with- out resorting to extensive fact-finding to determine whether the person is included in the class. If class membership is not evident from the class definition
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