USA – LOUISIANA Law and Practice Contributed by: Allan Kanner, Conlee Whiteley and Cynthia St. Amant, Kanner & Whiteley, LLC
itself, it can often be objectively determined based on public records or records held by the class members or the defendant. In class actions involving environ- mental concerns, a geographical boundary is often used to determine who was likely harmed and should be included in the class. After certification of a class under La C.C.P. Article 591 (B)(3), the best practicable notice is required to be given to class members including individual notice when the class members can be identified through reasonable effort. This notice must be given promptly after certification with ample time for a class member to exclude themselves prior to the trial on common issues in the case. A class member can exclude them- selves typically by sending in a form available with the class notice or otherwise follow the instructions given in the notice. The proponents of the class action usu- ally bear the cost of the notice. 3.5 Joinder Under Louisiana’s liberal joinder rules, multiple par- ties can be joined in order to gain efficiencies through common discovery and motion practice while still pre- serving an individual’s right to a specific determina- tion on the merits of their case or the damages they believe are due to them. If a class is certified, there should be no need for joinder of other plaintiffs as the class representative will represent all interests. 3.6 Case Management Powers of Courts District courts in Louisiana generally have broad dis- cretion and authority to create management tools to streamline a case or create schedules that are more suited for the complex nature of a class action or mul- ti-party suit. Specifically, under C.C.P. Article 592 (E) (5), courts are given the authority to issue case man- agement orders governing discovery and other mat- ters affecting the order of proceedings. Some judges have their own rules or case management orders that they implement, but many courts are receptive to the suggestions of the parties as to case management practices, and encourage the parties to work together to create a reasonable schedule that provides suffi- cient time for discovery and motion practice without undue delay.
Article 592 (D) specifically provides that a Louisiana court can certify a class as to a specific issue, or divide a class into sub-classes to be treated as a class if they meet the requirements or Article 591. Test cases or “bellwether” trials are frequently used in multi-district litigation (MDLs) for personal injury suits in state or federal courts, but a Louisiana class-wide trial cannot be held that is based on the individual proof, causa- tion or damages of a particular class member. 3.7 Length and Timetable for Proceedings Because of the multiple procedural protections that come with class actions, and pre-certification and post-certification discovery, this process can add months or even years to the typical timeframe of an individual case. This additional time to reach resolu- tion is balanced by the efficiencies created by hav- ing all claims determined in one case. Often, months are spent drafting the appropriate case management order, on the limits of pre-certification discovery and the briefing of class certification. Having a case man- agement order in place with a reasonable trial date is an effective way to keep all parties and the court on an appropriate schedule and can further aid in pre-trial resolution of the case. 3.8 Mechanisms for Changes to Length/ Timetable/Disposal of Proceedings As with other civil actions, defendants in class actions have the right to file dispositive motions (called “exceptions” in Louisiana) prior to answering the peti- tion, which can result in dismissal of the case before class certification is determined. However, in many instances discovery begins at least in part, so that class certification can be determined quickly if the case is to proceed. Given liberal pleading require- ments at the early stages of a case, many cases sur- vive this early pleadings challenge and move towards limited class discovery and class certification motion practice. In federal courts in Louisiana, courts may issue a Lone Pine order as a case management tool to handle com- plex class issues and ease discovery burdens. Such orders are issued under the wide discretion afforded to district judges under Fed. R. Civ. P. 16 for the man- agement of discovery. Typically, Lone Pine orders require plaintiffs to make a prima facie showing of
349 CHAMBERS.COM
Powered by FlippingBook