Too Much Money and No One to Give it to- The Cy Pres Doctrine

Litigation is increasingly a “part of doing business.” In federal court, corporate depositions are governed by Federal Rule of Civil Procedure 30(b)(6) (frequently referred to as a “30(b)(6) deposition”). When a corporate representative is appointed to testify on behalf of a company, they are typically provided a deposition notice which identifies the subjects he or she will be asked to address in their testimony. However, the process is not always smooth when the parties disagree about what is fairly covered in the notice. A recent amendment to Rule 30 aims to improve the process.

Preparing for a 30(b)(6) deposition can be overwhelming and time-consuming. Often, the imprecise identification of subjects in the notice leaves the corporation wondering what the noticing party really seeks to explore or even who is the best individual to testify to the topics identified. The federal judiciary has observed that corporate representative(s) under the current practice are often unprepared to provide the necessary testimony and/or that the entity’s interpretation of the deposition topics does not match the intent of the noticing party. The result is aborted or suspended depositions, extended litigation, increased costs, and the birth of theories that the deponent intentionally obstructed the deposition, which is usually not the case.

To address these issues, effective December 1, 2020, Rule 30(b)(6) now reads as follows (changes in bold):

Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. …

The recent amendment directs the serving party and the named organization to confer before or promptly after the notice or subpoena is served about the matters for examination. The intent is to “facilitate collaborative efforts” and to encourage “candid exchanges about the purposes of the deposition and the organization’s information structure [which] may clarify and focus the matters for examination and enable the organization to designate and to prepare an appropriate witness or witnesses, thereby avoiding later disagreements.” (Committee Notes; Rule 30). The Committee Notes even suggest that the notice of the deposition may be “refined as the parties confer.” The Committee Notes further provide that the obligation is to “confer in good faith,” not to reach agreement, and remind that “it may be desirable to seek guidance from the court.”

The recent changes to Rule 30 are subtle but may prove impactful. Because the new procedure is now in effect, we should know soon.

Louisiana summers are hot and humid. Suffocating. Temperatures in July and August regularly exceed 100 degrees, but the temperature inside a parked car is even higher. According to the Centers for Disease Control, the inside of a parked car can reach 130 to 172 degrees when the outdoor temperature is between 80 and 100 degrees. Cracking the windows or parking in the shade has little effect. Because it only takes 10 minutes for the interior temperature of a parked vehicle to rise 20 degrees, children and animals left alone for “just a few minutes” are at risk. On average, 37 children and hundreds of pets die of vehicular heat stroke each year. In an effort to address this problem, the Louisiana Legislature recently passed a law to encourage action.The Legislature enacted two statutes to provide immunity from claims of property damage or trespass for any person causing damage to a motor vehicle while rescuing a minor or animal in distress. La. R.S. 37:1738 et seq. provides immunity if the person:

1. Makes a good-faith attempt to locate the owner before entering the vehicle.
2. Contacts local law enforcement, the fire department, or calls 911 before entering the vehicle.
3. Determines that the vehicle is locked and has a good-faith belief that there are no other reasonable means for the minor or animal to be removed from the vehicle.
4. Believes that removal of the minor or animal from the vehicle is necessary because the minor or animal is in imminent danger of suffering harm.
5. Uses force that was reasonably necessary under the circumstances to enter the vehicle.
6. Places a notice on the windshield of the vehicle providing details of the person’s contact information, the reason entry was made, the location of the minor or animal, and notice that the proper authorities have been notified.
7. Remains with the minor or animal in a safe location reasonably close to the vehicle until emergency responders arrive. If the person cannot remain with the minor or animal, the person must do the following:
8. For a minor: notify local law enforcement, the fire department, or the 911 operator and take the minor to the closest police station or hospital.
9. For an animal: notify local law enforcement, the fire department, animal control, or the 911 operator and take the animal to the closest shelter.

One wonders if a person reacting in an emergency will remember to leave a detailed note or to make the call before they act. If they do not, the immunity may be lost because immunity statutes are strictly construed in Louisiana. Also, the immunity does not apply to bodily injuries suffered by a minor during the rescue activities.So, if you see a child or animal in danger in a hot car, the law now allows you to act with immunity, maybe.

Recently, the Louisiana Supreme Court issued a significant ruling in a class action case handled by Keogh Cox partners Chris Jones and Nancy Gilbert. The case involved tax credits for solar panels. The Court’s ruling overturned a lower court decision that held an Act of the Legislature unconstitutional. After the plaintiffs’ Application for Rehearing was denied, the Court’s decision is now final.

In Ulrich, et al. v. Kimberly Robinson, Secretary of the Louisiana Department of Revenue, 2018-0534 (La. 3/26/19), 2019 WL 1395316, the class action plaintiffs were persons who purchased and installed residential solar panel systems in their homes. When they claimed the solar electric system tax credits on their 2015 state tax returns pursuant to La. R.S. 47:6030, the tax credits were denied by the Louisiana Department of Revenue, based on Act 131 of the 2015 legislative session. Act 131 capped the maximum amount of solar panel tax credits to be granted by the Department of Revenue, and the plaintiffs’ claims were made after the cap was exhausted.

When their claims for the tax credits were denied, plaintiffs filed a declaratory judgment action seeking to declare Act 131 unconstitutional. During the pendency of the suit in the district court, the Louisiana Legislature enacted Act 413 which provided additional funding for solar tax credits. Under Act 131, all taxpayers whose solar panel tax credit claims were previously denied would receive the entirety of their tax credits over installments. The district court declared Act 131 unconstitutional and concluded that Act 413 did not moot the controversy.

Because the district court declared Act 131 unconstitutional, the Department directly appealed the decision to the Louisiana Supreme Court. Oral arguments occurred in October of 2018. In the Court’s recent opinion, it concluded that Act 413 mooted the controversy. According to the Court, the plaintiffs no longer maintained a “justiciable controversy” because Act 413 provided for the payment of the entirety of the previously denied tax credits. Accordingly, the Court overruled the district court’s judgment that declared Act 131 unconstitutional. Plaintiffs filed an Application for Rehearing and that request was recently denied, making this decision final.

Chris Jones is a partner with Keogh Cox in Baton Rouge, LA. He focuses his practice on class actions and mass torts, and handles these matters in courts throughout the country. He is a life-long resident of Baton Rouge, where he lives with his wife and four children.