The Louisiana Legislature recently made substantial changes to the Louisiana Direct Action Statute, which is codified at Louisiana Revised Statute § 22:1269. Effective August 1, 2024, and pursuant to Act 275 of the 2024 Regular Legislative Session, the new law substantially limits the right of an injured person to sue another party’s insurer and to make the jury aware of the presence of insurance. Among the changes are the following: Limitation of Plaintiffs’ Right of Direct Action Prior law allowed the plaintiff a right of direct action against insurers at their choice, with very few restric ..read more

Banks and other secured lenders are going to experience more losses, and larger losses, on small and mid-market loans because fewer businesses are eligible to be a “small business debtor” in bankruptcy and to use Subchapter V of Chapter 11 to reorganize their debts and get a fresh start. From March 2020 until June 21, 2024, businesses with up to $7.5 million in undisputed debt (plus an unlimited amount of disputed debt) were eligible to pursue a financial restructuring as a “small business debtor” operating under the auspices of a federal bankruptcy court.  On June 21, 2024, the definiti ..read more

On June 28, 2024, the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo[1] definitively overturned Chevron deference[2], and held that, when reviewing agency action under the Administrative Procedure Act, courts “must exercise their independent judgment” and “may not defer to an agency interpretation of the law simply because a statute is ambiguous.”[3] Chevron deference, based on the Court’s decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,[4] laid out a procedure for courts to follow in cases involving judicial review of agency decisions under ..read more

In this part three of our discussion of the foreclosure process on commercial real estate in Louisiana, we are detailing the procedures involved in ordinary process foreclosures in Louisiana. Foreclosing on collateral by ordinary process in Louisiana involves filing a civil suit against the mortgagor asking the court to recognize that the indebtedness is due and that the mortgage grants the creditor a valid lien on the mortgaged property. The lawsuit will proceed as a normal lawsuit would, first with service of the petition on the defendant, with appropriate delays for answering. The suit wil ..read more

Contracting parties use contractual indemnity provisions to customize risk allocation.  Indemnification clauses vary widely and are typically heavily negotiated; however, if the events and related damages covered under the indemnity are appropriate in nature and scope, parties can manage risk expectations and avoid disputes.  In order to select the appropriate indemnification scheme for any contract or project, it is vital to assess risk in terms of events and consequences, and the likelihood that those events or consequences will occur. Under the indemnification regime known as “kn ..read more

The Louisiana Supreme Court ruled today in Daniel Bennett v. Demco Energy Services, et al., 2023-CC-01358 (La. 5/10/24), 2024 WL ***, a claim for defense and indemnity under a Master Services Agreement filed before a judicial finding of liability or loss is not premature. The Court explained “[w]e hold that a claim for indemnity raised during the pendency of the litigation and before a finding of liability is not premature….in light of our ruling today, to the extent any prior jurisprudence can be interpreted otherwise, we now clarify that such a claim for indemnity is not prohibited before a ..read more

On April 23, 2024, by a vote of 3-2 along party lines, the Federal Trade Commission (FTC) voted to approve a final rule effectively banning employers from using non-compete agreements, with a few limited exceptions. The measure reflects an unprecedented effort by the FTC to expand its rule-making authority. The final rule “shall supersede” all state laws, regulations, orders, and interpretations regarding non-competes, unless the state laws afford more protection to employees. Whether the rule will survive legal challenges remains unclear, but as the legal landscape concerning non-competes co ..read more

Today, April 30, 2024, the U.S. Department of Energy (DOE) revised its National Environmental Policy Act (NEPA) implementing procedures to revise categorical exclusions for upgrading and rebuilding powerlines and for solar photovoltaic systems. Under the new rulemaking, environmental reviews will not automatically be required for projects related to solar installations. The rulemaking also adds a categorical exclusion for certain energy storage systems and adds flexibility for power grid powerline relocation. A categorical exemption (“CX”) is applicable where a federal agency, including the D ..read more

Last month, a federal district court in Alabama ruled that the Corporate Transparency Act (“CTA”) is unconstitutional.[1] The CTA, which took effect on January 1, 2024, requires an estimated 32 million entities to report personal information about their beneficial owners to the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN). The CTA aims to assist federal law enforcement in combatting money laundering and other financial crimes carried out through anonymous shell companies. Specifically, on March 1, 2024, the U.S. District Court for the Northern District of Alabama c ..read more

Words are powerful. Being acutely aware of word choice and precise language in contracts is key to a successful agreement. Even in the world of construction, words matter as shown by the recent Louisiana Supreme Court case, Gustavo Bonilla v. Verges Rome Architects—A Professional Architectural Corporation, et al., 2023-0928 (La. 3/22/24), 2024 WL 1229219, — So.3d. — (2024). In Gustavo Bonilla, the Louisiana Supreme Court held no duty exists for an architect or contract administrator to protect against injury of a subcontractor’s employee, relying upon the Louisiana Civil Code for contrac ..read more