Article by Charles S. McCowan, Jr. and Calvin C. Fayard, Jr.
In 1997, the modern age of the Louisiana class action began with the extensive revisions to the Louisiana Code of Civil Procedure provisions related to class actions. The proponents urged that the legislation would eliminate the perception that Louisiana, like some other states, had become a “haven for quick and easy class certification” by making the certification requirements more congruent with those employed by federal courts. The opponents of the legislation countered by saying that the existing class action provisions provided a cost-effective procedure to redress the rights of those who had been injured but had not suffered a significant amount of individual monetary damage, and that any revision would eliminate such a benefit. A working group of attorneys, regularly representing both plaintiffs and defendants in mass tort cases, assisted in drafting compromise language that resulted in Act 839 of 1997, which amended the class action provisions of the Louisiana Code of Civil Procedure. These revisions generally codified the jurisprudential prerequisites of numerosity, commonality, and adequate representation for the maintenance of class actions. The revisions also included provisions for certification requiring additional showings that the prosecution of individual actions may result in incompatible results or standards or be dispositive of the rights of a proposed class as a whole; that the relief would be effective as to the entire class; and that questions of law or fact common to members of the class predominate over individual issues when gauged on several specific standards. A settlement class was specifically authorized; but, unlike federal requirements, the predominance of common issues was not considered a requisite to settlement class certification.
Of significance in the 1997 revisions was the codification of the jurisprudence prohibiting certification for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class; the broad discretion of the trial court in the conduct of the proceedings; often used, but not codified, notice and compromise procedures; inclusion of provisions relative to prescription suspension and interruption; the requirement for a precertification hearing; specific rules governing security for costs; and venue provisions.
The passage of Act 839 of 1997 has not resulted in chaos. Subsequent decisions have been generally consistent with the comparable federal jurisprudence and much of the prior state jurisprudence.
The number of Louisiana class action filings continues to grow, and Louisiana class action decisions continue to consider a wide spectrum of causes of action. The primary focus of this Article will be the Louisiana class action and alternative forms of actions to handle complex litigation actions since the 1997 class action article revisions.
About the Author
Charles S. McCowan, Jr. J.D. 1967, Louisiana State University Law Center. Member, Order of the Coif and the Louisiana Law Review. Partner in the Baton Rouge, Louisiana, law firm of Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman LLP. Member of the Louisiana Association of Defense Counsel.
Calvin C. Fayard, Jr. J.D. 1969, Louisiana State University Law Center. Partner in the Denham Springs, Louisiana, law firm of Fayard & Honeycutt. Elected delegate to the Louisiana Constitutional Convention of 1973. Former President of the Louisiana Trial Lawyers Association.
Citation
80 Tul. L. Rev. 1905 (2006)