USA – LOUISIANA Trends and Developments Contributed by: Allan Kanner, Conlee Whiteley and Cynthia St. Amant, Kanner & Whiteley, LLC
fully consider satisfaction of each of La. C.C.P. Article 591’s factors in drafting class definitions to avoid fatal flaws in class allegations at the pleading stage. Louisiana Civil Code of Procedure Article 964 gov- erns a general motion to strike and provides that it may be filed at any time; and if granted, any insuf- ficient demand or other material will be stricken from the pleading. This allows a defendant to pre-emptively strike class allegations prior to taking discovery or beginning the certification process if deficiencies are facially apparent from the petition. The most success- ful challenges have been to typicality (eg, overbroad class definitions that include uninjured members), pre- dominance (eg, variances that overwhelm any com- mon questions of law or fact) and ascertainability requirements (eg, fail-safe classes or class member- ship that is based on subjective criteria) precluding class treatment. This practice is similarly permitted in the federal system pursuant to federal Rule 12 (f), on which La. C.C.P. Article 964 was modelled. Louisiana also has a specific procedure for striking class action allegations if the plaintiff fails to timely move for class certification (La. C.C.P. Article 592). If the class demand is stricken, the lawsuit can proceed with the named plaintiffs, but without class relief. This mechanism for striking is available only after class certification-related discovery is taken. And class relief can be later reinstated for good cause shown. Louisiana’s restrictions on consumer class actions under certain theories of liability While the class action mechanism has traditionally been a valuable tool used to redress consumer griev- ances and for economic losses that would otherwise not be individually litigated, there are certain theories of liability under Louisiana law where class treatment is not available. Louisiana permits consumers harmed by unfair, anti- competitive and deceptive business practices to bring an individual claim for damages, including treble dam- ages for a knowing violation, pursuant to the Louisiana Unfair Trade Practice Act (LUTPA). However, the legis- lature has prohibited such claims from being brought by a consumer as a class action (La. Rev. Stat. Ann. Section 51:1409). Instead, the exclusive availability of
the class device for a restitutionary recovery or injunc- tive relief under LUTPA is limited to an enforcement action brought by the Attorney General. And the Loui- siana Supreme Court has narrowly interpreted LUTPA to sanction only egregious conduct that offends public policy. Louisiana has further narrowed the universe of availa - ble consumer claims in the Louisiana Products Liabil- ity Act (LPLA), which sets forth the exclusive theories of liability for manufacturers for damages caused by their products (La. Rev. Stat. Ann. Section 9:2800.52). Moreover, the vast majority of federal courts applying and interpreting Louisiana law find that not only does the LPLA subsume all LUTPA claims involving prod- ucts, but alternative claims such as fraud, breach of warranty or unjust enrichment are also subsumed by the LPLA. Louisiana recognises a tort of “redhibition”, which gives a buyer the right to seek a refund or reduction in price for hidden defects in a product that make it useless or its use so inconvenient they would not have purchased it (La. C.C. Article 2520). Redhibition claims are an exception to the LPLA’s exclusivity pro- vision (La. Rev. Stat. Ann. Section 9:2800.53 (5)). In sum, economic loss claims by consumers generally fall under redhibition, and personal injury claims fall under the LPLA. Recent developments in Louisiana consumer class action cases Recently, the Louisiana Supreme Court has arguably created a de facto LUTPA exemption for alleged unfair and deceptive practices by public entities ( Law Indus- tries, L.L.C. v State of Louisiana Dept. of Education , 23-00794 (La. 1/26/24); 378 So. 3d 3, 8) (dismissing a subcontractor’s LUTPA claim against the Louisiana Department of Education for backing out of a school refurbishment contract because it was not engaging in “trade of commerce” but was merely a consumer of construction-related services and acting in accord- ance with its governmental function capacity). This decision could potentially strip future plaintiffs of a remedy when the state acts unfairly. In June 2025, the Louisiana Attorney General filed several class action lawsuits against CVS Health
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