USA – LOUISIANA Trends and Developments Contributed by: Allan Kanner, Conlee Whiteley and Cynthia St. Amant, Kanner & Whiteley, LLC
Corporation (CVS) and others alleging their business practices violate LUTPA – specifically, alleging that CVS wrongly misused customers’ personal informa- tion and data to disseminate a statewide mass text message campaign to oppose proposed legislation that would prohibit pharmacy benefit managers like CVS from owning or controlling pharmacies. The Attorney General argued that CVS’s text messages to customers with serious health conditions provoked fears of pharmacy closures and crossed an “ethical and legal line” in violation of the “fundamental prin- ciples of confidentiality and trust in the pharmacist- patient relationship”. The lawsuit further alleges that CVS’s text messages breach their own terms of ser- vice and internal privacy policies. Similar federal class action litigation has spawned from unsolicited communications, pleading in the alterna- tive, that these mass marketing tactics and unwanted messages violate the Telephone Consumer Protection Act (TCPA), 47 U.S.C. Section 227. This was the pre- cise issue in McLaughlin Chiropractic Assoc., Inc. v McKesson Corp. , 606 U.S. 146 (2025), decided by the US Supreme Court in June 2025 finding courts are not required to accept the Federal Communications Com- mission’s agency interpretation of “calls” as it relates to violations of the TCPA. As a result of McLaughlin, the lower courts must decide the proper interpretation of whether text mes- sages and other communications are considered “calls” for purposes of violations of the TPCA. Prior to McLaughlin, dozens of courts across the country had already held that texts are considered a “telephone call” for purposes of solicitation under the TCPA. Now, the issue will be developed through future case law under a new standard, thus creating an immediate split among the federal courts that could significantly affect outcomes, depending on where the action is filed. Data breach litigation is another increasing trend in class actions. In terms of certifying a Rule 23 (b)(3) class and satisfying predominance requirements, a class action must allege that a business entity had a duty to exercise reasonable care in safeguarding, securing and protecting the personally identifiable information of a plaintiff and/or settlement class mem-
bers, and it breached that duty – see, eg, La. Rev. Stat. Section 51:3074 (A)–(E) (imposing specific duties to: (1) “implement and maintain reasonable security pro- cedures... appropriate to the nature of the information to protect the personal information from unauthorized access, destruction, use, modification, or disclosure”, and (2) “take all reasonable steps to destroy... the records... containing personal information that is no longer retained”, among others). “As here, when the amount at stake for any individual plaintiff would not make litigating a data breach dis- pute worth the time, money, or effort, certifying the case as a class action allows the claims of those impacted to be resolved efficiently at one time”. Mer- rell v 1st Lake Props., Inc. , No 23-1450, 2025 U.S. Dist. LEXIS 98269, at *13 (E.D. La. May 22, 2025). Lastly, recent decisions under the LPLA have the potential to open the door to class action liability for sellers or distributors of imported and defective products and as against online marketplace opera- tors selling foreign defective products. For example, in June 2024, the Louisiana Supreme Court held that under the LPLA, Amazon, as an operator of an online marketplace, is a “seller” of third-party products sold in its marketplace when it did not hold title to the prod- uct but: (i) had physical custody of the product in its distribution warehouse; and (ii) controlled the process of the transaction and delivery through its product fulfilment programme ( Pickard v Amazon.com, Inc ., 2023-CQ-01596 (La. 6/28/24); 387 So. 3d 515). See also Pickard v Amazon.com, Inc. , No 5:20-cv-01448, 2024 U.S. Dist. LEXIS 215377, at *15–*19 (W.D. La. Nov. 25, 2024) (analysing statutory provisions of the LPLA and finding Amazon, as the importer or dis- tributor of a non-US-made product, was functioning as the alter ego of the foreign manufacturer); Smith v China Mfrs. All. , L.L.C., No 2:19-CV-01111, 2025 U.S. Dist. LEXIS 25757 (W.D. La. Feb. 12, 2025) (denying motion for summary judgment for a tyre distributor and importer that did not manufacture defective tyres because issues of material fact existed as to whether the tyre distributor was the alter ego of the foreign manufacturer); Tuminello v ABC Ins. Co. , No 23-446 (La. App. 3 Cir. 2/28/24); and 2024 La. App. LEXIS 373, at *23 (the sole US distributor of Italian com- pany’s artificial snow products was a “manufacturer”).
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