Did I pass? - A Terrifying Question Gets More Terrifying

Almost no litigation grabs attention and headlines more than a high-profile class action. The Louisiana Supreme Court's recent class action ruling was no exception in a case involving salacious conduct and a violation of privacy.

The plaintiff in Jane Doe v. Southern Gyms, LLC, 2012-1566 (La. 3/19/13) was an unnamed victim of a "peeping tom." She contended that an employee of a popular gym placed a pen camera in the women's bathroom where he would tape unsuspecting women in various states of undress. The pen camera could hold only 1-2 hours of film. The perpetrator testified that, after viewing, he would immediately delete the footage. The images of only four women were seen on the footage when it was discovered. After the employee was arrested, one of the victims filed the class action lawsuit. At issue before the Louisiana Supreme Court was whether the class action was properly certified by the Trial Court.

Class action is a nontraditional litigation procedure that was introduced into Louisiana civil procedure in 1961. Louisiana class action procedure is modeled after the original federal rule and has been extensively revised since its inception. Louisiana Code of Civil Procedure Article 591 provides the elements that must be met before a class action can be certified. Failure to meet one of the threshold requirements of Article 591 precludes class action treatment. Once of these threshold requirements is numerosity, i.e. a class of potential plaintiffs "so numerous that joinder of all members is impractical." La. C.C.P. art. 591(a)(1). The requirement of numerosity was at issue in Jane Doe.

In its analysis, the Supreme Court stressed that courts must perform a rigorous analysis to determine whether the proposed class action meets the requirements of Article 591. Simply pleading a class action is insufficient. Instead, the plaintiff "must be prepared to prove in fact" that the Article 591 requirements are met. Id. at p. 9. To establish the "numerosity" requirement, the class representative cannot simply allege that several persons were affected by the defendant's bad acts. She must be able to offer some proof of a definable group of aggrieved persons so numerous that joinder is impractical.

In Jane Doe, the Supreme Court held that the plaintiff did not satisfy numerosity. The employee's testimony revealed that he may have recorded approximately 20 women. However, because the footage was deleted, most of the potential class members could not show that their privacy had been violated. Only nine women had positive knowledge that they were on video. According to the Jane Doe Court, nine class members did not meet the numerosity requirement and the class was decertified. While the Court did not reveal a "magic number" to meet numerosity, we now know it may be higher than nine.

There is an old adage that "bad facts make bad law." In Jane Doe, the Louisiana Supreme Court did not let the egregious nature of the conduct impact its view that the requirements of Article 591 must be met in every circumstance.

On August 28, 2015, the Louisiana Supreme Court denied a Writ Application in Leandro Carias v. Vernon A. Loren, et al. This denial signifies that the "sudden emergency" defense may be properly applied at the summary judgment level. The defense in the Carias litigation was handled by Keogh Cox attorneys Gracella Gail Simmons and Collin J. LeBlanc.

In Carias, the defendant operated his 18-wheeler traveling eastbound over the Mississippi River Bridge when, according to his testimony, a "phantom driver" abruptly entered into his lane of travel and forcefully applied their brakes. In the sliver of time allowed, the defendant sought to quickly determine if he could safely move from his lane of travel. Incorrectly, he believed that there was sufficient space in the lane to his right and impacted a truck in that lane. In turn, that vehicle rear-ended the plaintiff.

A Motion for Summary Judgment was filed and won based upon the sudden emergency defense, which provides that one is not negligent when they fail to take reasonable measures to avoid an accident when they were presented with: 1) a sudden emergency; 2) which was not of their making; and, 3) which did not allow sufficient time for deliberation. In opposition to the Motion, the plaintiff cited testimony that the defendant was "following too closely," and contended that the defendant was therefore at fault and unable to seek the protections of the defense. In response, it was argued that whether the defendant driver allowed sufficient space between his vehicle and the vehicle to the front was non-material when it was the actions of the phantom driver which exclusively created the sudden emergency.

Plaintiff appealed the grant of summary judgment to the Louisiana First Circuit. Prior to Carias, the Louisiana First Circuit had questioned whether the sudden emergency defense could ever be used at the dispositive motion stage. On this subject, the Louisiana First Circuit stated as follows in Manno v. Gutierrez, 05-0476 (La. App. 1st Cir. 3/29/06); 934 So. 2d 112, 117-118: "while we cannot say that it would never be possible to apply the doctrine on a motion for summary judgment, our research has disclosed no cases from this court that have so applied it, and by the nature of the sudden emergency doctrine, it would seem rarely appropriate on a motion for summary judgment." Nevertheless, the First Circuit upheld the Carias summary judgment finding that, unlike earlier cases, there was no conflicting testimony regarding the defendant's lack of opportunity to assess the situation or take other evasive actions.

In the Writ Application to the Supreme Court, the plaintiff cited to a "split in the Circuits" concerning whether the sudden emergency defense may be used at the summary judgment stage.　 In response, it was argued that the decades of jurisprudence following the Louisiana Supreme Court’s establishment of the sudden emergency defense in Hickman v. Southern Pacific Trans. Co., 262 La. 102, 113-114, 262 So.2d 385, 389 (1972) demonstrate that the lower courts have not struggled with this doctrine and that nothing in Hickman nor the Summary Judgment Article prevent a consideration of the sudden emergency defense through motion practice.

As a practical matter, summary judgment may still be difficult to obtain in the context of the sudden emergency defense because of the highly factual context into which the defense is often sought for application. Nevertheless, after Carias, it appears likely that there is no legal prohibition to the use of the doctrine in support of a dispositive Motion for Summary Judgment

Written by:

Gracella Gail Simmons and Collin J. LeBlanc

Sometimes, a number of people or parties will file claims, in which each party alleges the same or similar injuries that were caused by the same or similar conduct. In these circumstances, federal and Louisiana law recognize class actions as procedural devices that can be used to aggregate the parties’ claims into a single action.

The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable to the representatives who bring the action. However, this res judicata effect also applies to all others who are “similarly situated,” provided they are given adequate notice of the pending class action and do not timely exercise the option to exclude themselves from the class. Class actions are commonly filed in matters that involve common facts and damages such as plant explosions, claims based upon allegedly defective products, or claims involving employment practices or civil rights violations.

Before a court can hold a trial on the merits of a class action, the court must determine whether all of the procedural requirements are met for certification of the class. In making this determination, the court rules on whether the matter may proceed as a class action or whether the named parties must bring individual claims. In Louisiana, the threshold requirements for class certification are found in La. C.C.P. art. 591(A), which provides:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:

(1) The class is so numerous that joinder of all members is impracticable.

(2) There are questions of law or fact common to the class.

(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.

(4) The representative parties will fairly and adequately protect the interests of the class.

(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

Every one of these requirements must be met for an action to be maintained as a class action. Stated differently, the class cannot be certified if even one of these threshold requirements is not met. A party seeking class certification must also establish one of the additional requirements outlined in La. C.C.P. art. 591(B).

In Doe v. Southern Gyms, LLC, the Louisiana Supreme Court held that a court must conduct a “rigorous analysis” of the class certification requirements, to ensure that every one of them are satisfied before a case is certified as a class action. Moreover, it is the plaintiff’s burden to prove that every requirement of La. C.C.P. art. 591 is satisfied. While only the procedural requirements for class certifications are relevant to determine if a matter should be certified, the “rigorous analysis” required of the court oftentimes requires analysis of the overlapping merits of the plaintiff’s underlying claim. See Wal-Mart Stores, Inc. v. Dukes.

Whether a matter should be certified as a class action is often a contested issue involving high stakes. If it is certified, the matter proceeds as a class action, where the claims are asserted on behalf of the entire class and can result in substantial damage awards. If the matter is not certified, the claim representatives must pursue their claims individually, which leads to significantly less exposure for defendants named in the action.

Case References:

Doe v. Southern Gyms, LLC, 2012-1566 (La. 3/19/13), 112 So.3d 822, 829.
Wal-Mart Stores, Inc. v. Dukes, --- U.S. ---, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011).