Dona Kay Renegar 77th LSBA President - Lafayette
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Dona Kay Renegar
77th LSBA President
Lafayette
T he
Ne e d l e
In A
Ha y s t a c k
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Louisiana Bar Journal Vol. 65, No. 1 1
2 June / July 2017
®
June / July 2017 Volume 65, Number 1
Departments Features
Editor’s Message....................... 5 President’s Interview:
One on One with Dona Kay Renegar,
Association Actions................. 26
77th LSBA President
Practice Management............. 33 A Spirit of Collaboration
Focus on Diversity................... 34 Interviewed by Maggie T. Simar...........6
Puzzle...................................... 36
One, Two, Three:
Discipline Reports................... 37 Availability of Treble Damages
Recent Developments............. 39 Under the Louisiana Unfair Trade
Practices Act
Young Lawyers........................ 54 By Alexander M. McIntyre, Jr.............14
La. Center for
Law and Civic Education......... 60 In the Aftermath of Natural Disasters:
Judicial Notes.......................... 61 An Update on Insurance Coverage
for Business Interruption Claims for
People..................................... 62
You and Your Clients
News....................................... 65 By José R. Cot.....................................18
Classified................................. 70
Judges and Lawyers Assistance
The Last Word......................... 72 Program, Inc. Releases Performance
Also Inside Audit: July 22-Oct. 26, 2015
By Mark C. Surprenant.......................22
Letters Policy............................. 5
Alcohol/Drug Abuse Hotline.... 36 Meet the 2017-18 LSBA Officers and Board of Governors.................................26
SOLACE.................................. 59
Advertisers’ Index.................... 68 Meet the 2017-18 Young Lawyers Division Council............................................ 55
ADR Directory.......................... 69
Dona Kay Renegar, the 77th
president of the Louisiana State
Bar Association, is a member
in the Lafayette firm of Veazey,
Felder & Renegar, L.L.C. She was
photographed on the grounds of
her alma mater, the University of
Louisiana at Lafayette. Photo by
Jay Faugot Photography.
Louisiana Bar Journal Vol. 65, No. 1 3
®
Officers 2017-18
President Editorial Board
Dona Kay Renegar • (337)234-5350 John E. McAuliffe, Jr. Alainna R. Mire
President-Elect Editor (318)449-5046
Claire McDaniel-Ojeh
Barry H. Grodsky • (504)599-8535 (504)840-4909
Secretary Christopher D. Cazenave (225)622-2005
John E. McAuliffe, Jr. • (504)840-4909 (504)582-8408 John H. Musser V
Treasurer John S. (Chip) Coulter (504)523-0400
H. Minor Pipes III • (504)589-9700 (225)362-2445 Christopher K. Odinet
Immediate Past President Anthony M. DiLeo (225)346-0285
Darrel J. Papillion • (225)236-3638 (504)274-0087 Roy H. (Hal) Odom, Jr.
Brendan P. Doherty (318)227-3762
Board of Governors 2017-18 (832)255-6019 Maggie Trahan Simar
First District Stephen I. Dwyer (337)394-6133
D. Skylar Rosenbloom • (504)556-5507 (504)838-9090 Kristine D. Smiley
Barry H. Grodsky
Darryl J. Foster • (504)596-6304 (225)298-0770
Second District (504)599-8535 Gail S. Stephenson
Mark A. Hill
Stephen I. Dwyer • (504)838-9090 (225)771-4900, x216
Third District (504)581-1301 Scott L. Sternberg
Gerald J. (Jerry) Huffman, Jr.
Shannon Seiler Dartez • (337)233-1471 (844)942-6477
Fourth District (504)957-9114 Tyler G. Storms
J. Lee Hoffoss, Jr. • (337)433-2053 (318)255-7805
Margaret E. Judice
Fifth District (337)828-1880 Adrejia L. Boutte Swafford
Edward J. Walters, Jr. • (225)236-3636 (504)561-5700
Robert A. Kutcher
Valerie Turner Schexnayder • (504)813-3633 (504)830-3820 Edward J. Walters, Jr.
Sixth District (225)236-3636
Winfield E. Little, Jr.
Charles D. Elliott • (318)704-6511 (337)430-0907 Jack K. Whitehead, Jr.
Seventh District (225)303-8600
C.A. (Hap) Martin III • (318)388-4700 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by
Eighth District the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans,
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Editorial Staff
Executive Director Luminary Award 2003
Loretta Larsen, CAE National Association of Bar Executives
Communications Director Communications Section
Kelly Wells Ponder Excellence in Regular Publications
Publications Coordinator/Managing Editor
Darlene M. LaBranche International
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Advertising Booking Questions? Bronze Quill
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Call (504)619-0131. Award of Merit
4 June / July 2017
E D I T O R ’ S M E S S A G E
By John E.
McAuliffe, Jr.
Highlighting the Varied Paths
in the Legal Profession
I
n 1978, upon being sworn in as to the Journal. Their collective efforts highlight many of the varied positions our
a newly minted attorney, it never will make my job easier. They deserve members have pursued. Rural lawyers,
occurred to me that I would one day credit for this and every Journal. city lawyers, commercial lawyers, trial
become secretary of the Louisiana As I began to draft this message, I lawyers and others all have something
State Bar Association. Yet, here I am, and realized that my three best “lawyer” to tell us about our profession and our
it is both gratifying and humbling. friends are a district attorney, a banking/ contributions to society and the law.
I want to thank my immediate bankruptcy lawyer and an attorney So, if you see my name in your missed
predecessor, Alainna R. Mire, for her involved in business who has never calls or receive an email from me, I may
hard work over the past two years. She “practiced” but has kept his license just be requesting that you submit an
has extended advice and help as I have current since graduation. What a variety article on your specialty, your locality or
prepared for my new “job.” of paths my friends have taken, which, the road you have taken to your present
My continuing thanks also go to of course, led me to wonder: What other position. BE FOREWARNED!
the members of the Louisiana Bar specialties, pursuits, opportunities and
Journal Editorial Board and the LSBA roads traveled have other members of our
Communications Department staff. All profession taken?
are professional, talented and dedicated Over the next two years, I hope to
Letters to the Editor Policy
1. At the discretion of the Editorial 4. Letters should be typewritten, signed other LSBA representatives may respond
Board (EB), letters to the editor are pub- and, if applicable, include LSBA mem- to letters to clarify misinformation, pro-
lished in the Louisiana Bar Journal. ber number, address and phone number. vide related background or add another
2. If there is any question about whether Letters from non-members of the LSBA perspective.
a particular letter to the editor should be also will be considered for publication. 7. Letters may pertain to recent articles,
published, the decision of the editor shall Unsigned letters are not published. columns or other letters. Letters responding
be final. If a letter questioning or criticizing 5. Not more than three letters from any to a previously published letter should
Louisiana State Bar Association (LSBA) individual will be published within one year. address the issues and not be a personal
policies, rules or functions is received, 6. Letters also may be clarified or ed- attack on the author.
the editor is encouraged to send a copy ited for grammar, punctuation and style 8. No letter shall be published that
of that letter to the appropriate entity for by staff. In addition, the EB may edit let- contains defamatory or obscene material,
reply within the production schedule of the ters based on space considerations and violates the Rules of Professional Conduct
Louisiana Bar Journal. If the editor deems the number and nature of letters received or otherwise may subject the LSBA to civil
it appropriate, replies may be printed with on any single topic. Editors may limit the or criminal liability.
the original letter, or in a subsequent issue number of letters published on a single 9. No letter shall be published that
of the Louisiana Bar Journal. topic, choosing letters that provide differ- contains a solicitation or advertisement for
3. Letters should be no longer than 200 words. ing perspectives. Authors, editorial staff or a commercial or business purpose.
Louisiana Bar Journal Vol. 65, No. 1 5
6 June / July 2017
Pr
es
id
en
t’s
In
te
r vi
One on One with
ew
Dona Kay Renegar,
77th LSBA President:
A Spirit of Collaboration
Interviewed by Maggie T. Simar
D
ona Kay Renegar, the 77th president of the Louisiana State
Bar Association (LSBA), likes a challenge — which is a
good thing as she is about to lead 22,000+ attorneys, all
members of a mandatory bar association, into the future.
Sitting across from her, you notice the fire this challenge lights in her.
Dona is excited about this upcoming Bar year.
A member in the firm of Veazey, Felder & Renegar, L.L.C., in Lafayette, Dona grew up in Alexandria
and then moved to Lafayette to attend the University of Southwestern Louisiana (now the University of
Louisiana at Lafayette), receiving her BA degrees in both French and English, magna cum laude, in May
1988. She next earned her JD degree, cum laude, in 1992 from Tulane University Law School where her
passion for helping those less fortunate took root.
Dona has served in many different roles with the LSBA. She was an original member of the Committee
to Review Proposed Changes to the Louisiana Bar Exam in 2010 and continued her work with the proj-
ect until the first test changes were instituted in 2012. She served on the Young Lawyers Division (YLD)
Council from 1995-2007, chairing the Division in 2005-06. She was named the YLD’s Outstanding Young
Lawyer in 1999. She co-chaired the 2008-09 Leadership LSBA Class. In 2014, she received both the LSBA
Pro Bono Century Award for her pro bono service and the Stephen T. Victory Memorial Award for co-
authoring the Journal article on the Bar Exam changes. She has served on the Board of Governors and in
the House of Delegates.
Her time in the House of Delegates, the LSBA’s policymaking branch, was her introduction to state Bar
service. She says that time was invaluable because it introduced her to other Bar leaders around the state and
taught her about the sometimes diverging needs of LSBA members based upon the particular jurisdictions
they represent and the most critical issues facing members in their practices around the state.
Dona Kay Renegar, the 77th president of the Louisiana State Bar Association, is a member in the Lafayette firm of Veazey, Felder & Renegar, L.L.C. She
was photographed on the grounds of her alma mater, the University of Louisiana at Lafayette. Photo by Jay Faugot Photography.
Louisiana Bar Journal Vol. 65, No. 1 7
1999: Dona Kay Renegar received the Outstanding
2005: Dona Kay Renegar, left, was sworn in as chair of the LSBA’s Young Lawyers Divi- Young Lawyer Award from 1998-99 Young
sion by then-Louisiana Supreme Court Chief Justice Catherine D. (Kitty) Kimball. Photo Lawyers Section Chair Steven C. Lanza. Photo
from LBJ Archives. from LBJ Archives.
Journal: What are the big members. see in their communities from a variety
overarching goals for your presidency? I would like to increase and improve of backgrounds, practicing in a variety
Renegar: My first goal is for electronic access to court documents of fields, from a variety of practice situ-
the Bar to be of service to all of the and paperless filings. This can be ations (civil, criminal, solo, small firm,
LSBA’s members. This includes done by coordinating efforts with the big firm, in-house, etc.) and asking them
assisting our members in their Louisiana District Judges Association, to serve on committees or sections, or,
practices with technological advances; the Louisiana Supreme Court and the if time permits, in more time-intensive
establishing more diversity in Bar Louisiana Clerks of Court Association leadership roles.
leadership; supporting young lawyers, to investigate the possibility of helping
solo practitioners and small firms; local JDCs provide electronic access to Journal: What can the LSBA do to
and addressing the very real needs their files and accept electronic filing. support young lawyers, solo practitio-
of lawyers who are struggling with I also plan to encourage more ners and small firms?
burnout, depression and/or substance CLE options to address technological Renegar: In addition to the access
abuse problems. My second goal is to advances, such as paperless offices, that the LSBA provides to training vid-
support and increase access to justice the implications of social media for eos through the Tech Center, our YLD
for our citizens, both in the civil and attorneys and their clients, etc. hosts the Bridging the Gap CLE pro-
criminal systems. gram for newly admitted attorneys. This
Journal: In your vision, what would program includes LSBA Ethics School
Journal: Can you tell us more about more diversity in Bar leadership look sessions which cover critical areas such
the technology that is available, or that like, and how would you accomplish as trust accounts, lawyer advertising,
you would like to make available, to our that? ethical pitfalls, etc.
members? Renegar: I would like the LSBA We offer the Solo and Small Firm
Renegar: Not everyone is aware that leadership to look like a courtroom Conference, a two-day, low-cost confer-
the LSBA offers free videoconferencing looks on rule day — diverse in all ence dedicated to solos and small firms
services to its members. This helps ways. Diverse perspectives are crucial which offers both substantive and law
lawyers save case-handling costs and to identifying issues facing our profes- office management topics.
avoids extensive or unnecessary travel. sion and crafting solutions to address The LSBA offers a Practice Aid
Also, the LSBA now hosts the Tech those issues. I intend to accomplish Guide which covers all practical aspects
Center on our website with on-demand this by asking members of the Board of of operating a law office. The 2017 ver-
videos, including training videos for our Governors to identify leaders that they sion is complete and is available online.
8 June / July 2017The LSBA also offers the Four interests. I am proud to say the LSBA mentoring program since its inception?
Corners CLEs, free outreach CLEs has made a lofty financial commitment Renegar: The Transition Into
which highlight law office management to the program. It now serves both the Practice (TIP) program began as a volun-
in the four corners of the state. The bench and bar with a myriad of mental tary mentoring program via a Louisiana
LSBA employs two ethics counsel and health and substance abuse issues. It is Supreme Court order from 2013. In
practice management counsel who are 100 percent confidential and, contrary January 2015, two-year pilot programs
available to members who need or want to what some may think, the Louisiana were begun in the greater Shreveport,
to consult with them. Attorney Disciplinary Board is not New Orleans and Baton Rouge areas. In
In the last couple of years, we have associated with the program at all. February 2017, the Louisiana Supreme
created the Transition Into Practice In addition to the financial Court formally expanded the voluntary
(TIP) Program, a mentoring program contributions, JLAP also has begun program to the entire state. Mentors
that was recently opened for statewide proactive programming to take care of earn CLE hours for their participation
participation. our members’ mental health prior to it and mentees are given tasks related to
developing into problems that affect an introduction into the practice of law
Journal: We have all heard the grim our practice or clients. This starts with which they must accomplish to receive
statistics about lawyers, stress, burnout, our outreach to law schools. We have recognition for completion of the pro-
depression and substance abuse. Tell identified prospective attorneys as a gram. Matches of mentors and mentees
us more about the LSBA programs that group in need of tools to prepare them are made by the LSBA. The Louisiana
help members with these issues. for the challenges of practicing law Supreme Court hosts receptions at the
Renegar: Yes, unfortunately, and to help them transition into the beginning of each program with men-
lawyers as a profession experience a profession, and so the leadership of the tors and at the end of the program with
high rate of depression and substance LSBA has made a commitment to that both mentors and mentees. There is no
abuse. Through the Judges and Lawyers group to help them succeed. We need to cost for mentees to participate in the TIP
Assistance Program (JLAP), the LSBA advertise our wonderful programs more. program but they are required to attend
has made a commitment to provide We are working on that! the Bridging the Gap CLE, albeit at a re-
confidential help for members suffering duced registration cost. Those interested
from mental health or substance abuse Journal: Along those lines, in in registering to be mentors or mentees
issues. The program has changed order to continue the success of our can apply on the LSBA’s website where
dramatically from its inception. It Bar Association, investing time and they will find the qualifications for men-
began as a lawyers-only substance effort into future leaders is key and a tors and the obligations for mentees.
abuse program but has developed wonderful (and very strategic) plan.
into a broader program serving more Where does the Bar stand with the
2003: Dona Kay Renegar, left, with Laura Sylvester 2016: A group of LSBA presidents, from left, Joseph L. (Larry) Shea, Jr., Dona Kay Renegar,
at the Annual Meeting in Florida. Photo from LBJ Darrel J. Papillion, Richard K. Leefe and S. Guy deLaup at the Annual Meeting. Photo by Matthew
Archives. Hinton Photography.
Louisiana Bar Journal Vol. 65, No. 1 92017: Dona Kay Renegar at her alma mater, 2005: At the LSBA Annual Meeting in Las Vegas, from left, Clyde and Catherine D. (Kitty) the University of Louisiana at Lafayette. Kimball, Dona Kay Renegar, and Tracy and Frank X. Neuner, Jr. Photo from LBJ Archives. Photo by Jay Faugot Photography. Journal: The TIP Program will level of ethical violations triggering a commitment to our citizens to ensure undoubtedly aid our young colleagues investigation by the ODC. competent access to justice by increas- who may have difficulty navigating the The Diversion Program provides ing funding allocations for self-help profession. What else is being done on a vehicle for lawyers who are guilty products like kiosks, phone banks, help the discipline side for those who may of minor misconduct to be diverted desks, self-represented litigant kits and have made mistakes? from the disciplinary process to legal services organizations. Renegar: While the LSBA an education monitoring program On the civil side, I plan on working offers some programming for our coordinated by the LSBA’s Practice with Valerie Briggs Bargas, president members who become the subject of a Assistance Counsel. This usually of the Louisiana Bar Foundation (LBF), disciplinary matter, I think an equally requires attendance at the LSBA Ethics to address civil legal aid issues includ- important discussion is what the School, held twice a year, and, if ing funding sources. (Louisiana is one LSBA offers to our members to avoid applicable, the Trust Accounting School of four states that provide no statewide the pitfalls of practice that may result which is offered once a year for those appropriation or dedicated fee to civil in an Office of Disciplinary Counsel who have had disciplinary issues legal aid.) A recent economic impact (ODC) investigation. In addition to involving their trust accounts. study using 2016 data showed that for the TIP Program, the LSBA’s Member every $1 invested in Louisiana’s civil Outreach and Diversity team designs Journal: A lofty goal that I am legal aid services, these programs de- welcoming activities to create mentoring sure the LSBA and you, in particular, liver $8.73 in immediate and long-term opportunities for the newest members of will spend a great deal of time on. You consequential financial benefits. Val and the Bar Association. mentioned that access to justice is also I have already met about how to coordi- After an attorney becomes involved a priority for you. Can you tell us more nate the efforts of the LSBA and LBF to in our discipline side, the LSBA’s about that? best address the civil legal aid needs of Practice Assistance and Improvement Renegar: Access to justice has al- our state in the upcoming year. We hope Program offers “alternatives to ways been near and dear to me. I started to continue to address this issue through discipline” assistance. The Attorney- my career working in the trenches of the the Access to Justice (ATJ) Commission Client Assistance Program is a Legal Service Corporation. The ability committees investigating how to pro- voluntary program whose goal is quick of our Bar to ensure not only criminal vide help to self-represented litigants resolution of minor complaints about access to courts but also representation navigating our legal system and, impor- lawyer conduct, such as lawyer-client for our civil litigants is essential to our tantly, to those with modest means who communications, that do not rise to a adversarial system. The LSBA has made do not qualify for free representation but 10 June / July 2017
cannot afford the average market rates in Libraries” events because so many is the key to success and you are a great
for legal representation. citizens in rural areas go to their local person to spread that message. You are
On the criminal side, the LSBA has a libraries for use of the computer to locate always so kind and friendly to everyone!
Criminal Justice resource center on our legal help. We also rely on our Member How did you decide you wanted to be an
website for attorneys who are appointed Outreach and Diversity team to inform attorney?
to represent indigent defendants. The the local and specialty bars of LSBA Renegar: I have wanted to be a
ATJ Commission also has a Building programs and increase the presence of lawyer for as long as I can remember.
Bridges Committee to connect the crim- LSBA leadership at events throughout While a few professions briefly caught
inal and civil legal aid communities to the state. The members of the Board my attention and distracted me, such as
strengthen Louisiana’s justice system, of Governors also relay information psychology and marine biology, I always
and the LSBA hosts the Criminal Justice to their districts through constituent felt pulled to the legal field. I like to read
Summit to address the crises facing our messages after each meeting. and analyze materials, which, of course,
members who practice in that field. One of the reasons I wanted to serve is a large part of our job description. I
is because I wanted to give recognition was also drawn to the opportunity to
Journal: Wow, that’s a lot of com- to attorneys for the great work they do in help people through the legal system
mitment to help people who need to ac- their communities, careers and homes. and was honored when they chose me
cess courts. How will you get the mes- It is important to me that we spread the to represent them. I am competitive by
sage to the members and the public of news to the public of the good work and nature, so the adversarial system was a
all that good work? public service our members do. As we draw as well. I enjoy evaluating a case
Renegar: We will continue to all know, it is an uphill battle to counter and making an argument. My mother
travel the state and let members the sometimes negative public image likes to say that I turned bullheadedness
know. We will continue our public of attorneys as a profession, but I have into a career.
service announcements and internal met so many of our members who are
communication. The LSBA’s website committed to access to justice and pro Journal: What kinds of cases are
provides citizens with information bono work, and I am happy to be out in your favorites?
regarding self-help services by parish. the world raising awareness about the Renegar: I like to think on my feet
The LSBA’s Legal Education & important community services LSBA so I like litigation, although I recognize
Assistance Program (LEAP) provides members provide. it is not always the best course of action
legal resources and information to for my clients for many reasons. In the
the public and connects people with Journal: Communication, both years I’ve been practicing, I have seen
attorneys in their areas through “Lawyers within the profession and to the public, a decrease in litigation and a significant
2017: Dona Kay Renegar at the LSBA’s Mid- 2017: Dona Kay Renegar at the Louisiana Bar Foundation’s Gala with LBF President Valerie
year Meeting during the 50-, 60- and 70-Year Briggs Bargas. Photo by Matthew Hinton Photography.
Member Reception. Photo by Matthew Hinton
Photography.
Louisiana Bar Journal Vol. 65, No. 1 112007: Maggie Simar and Dona Kay Renegar
at the Annual Meeting in Florida. Photo from
LBJ Archives. 2005: Dona Kay Renegar with her mother Linda, left, sister Dana Renegar and brother Todd
Renegar at the LSBA Annual Meeting in Las Vegas. Photo from LBJ Archives.
increase in alternative dispute you to get recognition and praise is a our members.
resolution. I have been surprised at how special thing. Onto our final topic . . . I believe the future of our profession
much I enjoy crafting agreements for Tell us a little about your feeling on the rests solely in our hands. We must adapt
clients that can dissolve their disputes in state of our profession and the future. to changing technology, address some
creative and innovative ways. Renegar: The practice of law is the of our citizens’ lack of access to our ju-
I like the long-term relationships you last profession that society has allowed dicial system, and harness the availabil-
develop with corporate clients as you to regulate itself. The public holds us ity of legal forms and advice with a few
get to know their business and become in such high regard solely based on the strokes of the computer keys.
able to craft policies and forms that may profession we have chosen that we are
help them avoid situations that resulted allowed to discipline our own members. Interviewer’s Note: Dona and I end-
in litigation in the past. My business We are responsible for setting the quali- ed our visit with her speaking about what
relationship with my clients over the fications of our members for admission relaxes her. I would be remiss if I did not
years has been invaluable to my practice. to practice, their educational obligations report on her passions and hobbies that
I do have vivid memories of a to maintain that license, and administer some may find interesting (because I
client I represented in removing her discipline when their practice falls be- did). Anyone who already knows Dona
child from an abusive situation. The low the standards we have set. These ob- will tell you she is an avid University
young girl chose some yarn and had ligations drive the programming of the of Louisiana at Lafayette fan. She hosts
her grandmother crochet a blanket for LSBA in service to our members. The a long-standing tailgate party with sev-
me. It’s a prized possession of mine. magnitude of that trust is tremendous eral of her friends, and she loves watch-
I assisted another client in obtaining and comes with great responsibility. It ing ULL football and baseball. She has a
child support from her spouse. She is our duty as a mandatory bar associa- passion for NASCAR, particularly driver
and her daughter made me a 4-foot-tall tion to champion the success and ac- Ryan Newman. She loves to garden and
Christmas stocking to thank me. Santa complishments of our members both in “get dirty” (a hobby she has had less time
would be hard pressed to fill it. their practices and in their communities, for since she became LSBA president-
support our members who are struggling elect). She loves to travel and told me the
Journal: I love hearing those stories for any number of reasons, and disci- story of her 18-day trip to Ireland with
about times at Legal Services. Those pline our members who do not adhere her parents. She loved the Irish, but, more
of us who work in that space know and to our ethical obligations. Louisiana importantly, she loved spending time
understand it is sometimes a thankless citizens have placed this trust in us, and with her parents. Always an ambassador
job, but one that trains us so well. For our duty is to protect and serve them and of Louisiana culture, Dona brought along
12 June / July 2017several small bottles of Tabasco and can-
isters of “Slap Ya Mama” seasoning and Helpful Links to LSBA Services
distributed them to people she met there.
Her stories about her visit were interest- Online links for LSBA projects, programs and services referenced in the interview.
ing and typify who Dona is — a kind, ► Videoconferencing Services
gracious and committed daughter, friend, www.lsba.org/Members/BarCenterServices.aspx
and, by extension, attorney. As a friend of
hers, I am excited to see her lead this as- ► LSBA Tech Center
sociation into the future because I know www.lsba.org/PracticeManagement/TechCenter.aspx
she will do great things!
► Practice Aid Guide
Maggie T. Simar has www.lsba.org/PracticeManagement/PracticeAidGuide.aspx
worked as a Family
Court hearing officer ► Judges and Lawyers Assistance Program
for the past six years louisianajlap.com/
with the 16th Judicial
District Family Court in ► Transition Into Practice (TIP) Mentoring Program
St. Martin Parish. She www.lsba.org/Mentoring/
received her BA degree
in broadcast journalism ► Practice Assistance Programs
in 1995 from Louisiana www.lsba.org/Members/PracticeAssistanceProgram.aspx
State University and her
JD degree in 1998 from ► Access to Justice Commission
LSU Paul M. Hebert Law
Center. She was admitted to the Louisiana Bar in www.lsba.org/ATJCommission/
October 1998. She is a member of the Louisiana
Bar Journal Editorial Board. She has served ► Criminal Justice Center
as District 3 representative on the Louisiana www.lsba.org/CJC/
State Bar Association’s Young Lawyers Division
Council. She also is active with the Junior ► Lawyers in Libraries Program
League of Lafayette, the Lafayette Young Lawyers www.lsba.org/LouisianaLawyersinLibraries/LouisianaLawyersLibraries.aspx
Association and other community organizations.
(msimar@16jdc.org; 415 South Main St., 2nd Flr.,
St. Martinville, LA 70582)
2007: Miles Matt and Dona Kay Renegar at 2005: Dona Kay Renegar with former presidents of the Lafayette Bar Association at the LSBA’s
the Lafayette Bar Association’s crab boil. Annual Meeting in Las Vegas, from left, Frank X. Neuner, Jr., Joseph R. Oelkers, Jr. and Joseph
Photo from LBJ Archives. C. Giglio, Jr. Photo from LBJ Archives.
Louisiana Bar Journal Vol. 65, No. 1 131, 2,
Availability of Treble
Damages Under the Louisiana
Unfair Trade Practices Act
By Alexander M. McIntyre, Jr.
P
ursuant to the Louisiana Unfair Trade Practices Act (LUTPA), La. R.S. 51:1401-
1430, in the case of a LUTPA violation, “[i]f the court finds the unfair . . . act or
practice was knowingly used, after being put on notice by the attorney general, the
court shall award three times the actual damages sustained.” La. R.S. 51:1409(A)
(emphasis supplied.)
There is little jurisprudence discussing this provision; to date, there are only two Louisiana
federal district court opinions and only one published state appellate court opinion granting
treble damages under the LUTPA since the statute was enacted in 1972.
The only published state court opinion in which a treble damage award survived is
McFadden v. Import One, Inc., 56 So.3d 1212 (La. App. 3 Cir. 2011).1
The final two cases both come from the same section of the federal court sitting in the
Western District of Louisiana — AIM Business Capital, L.L.C. v. Reach Out Disposal,
2014 WL 1401526 (W.D. La. 4/9/14); and Hadassa Investment Security Nigeria, Ltd. v.
Swiftships Shipbuilders, L.L.C., 2016 WL 156264 (W.D. La. 1/12/16). These last two cases,
in particular, illustrate a potential flaw in the application of the treble damages provision of
the LUTPA. This problem can put a defendant in a totally untenable position of facing the
possibility of treble damages without any reasonable means of avoiding such a penalty.
14 June / July 2017contemplates some finding of a violation decided in 2014, the plaintiff, a factoring
Current Practice Under La. (or the possibility of a violation) by the business, was defrauded by defendants
R.S. 51:1409 attorney general, then the notice is nullified who manipulated and fabricated invoices
by the statement that the attorney general’s sent to the plaintiff in the amount of almost
Under the statute, after receiving a copy office takes no position on the matter.4 $500,000. Plaintiff sued and the attorney
of the LUTPA petition pursuant to La. R.S. general’s notice went out shortly after suit
51:1409(B), the attorney general’s office2 The Jurisprudence was filed. Liability was never seriously
sends out an official notice to the defendant in doubt, and the court granted plaintiff’s
that suit has been filed alleging LUTPA McFadden v. Import One, Inc. motion for partial summary judgment,
violations. The notice is a form letter, noting In the McFadden opinion, released in awarding treble damages of almost $1.5
that the suit alleging LUTPA violations has 2011, the 3rd Circuit was the first court to million under the LUTPA. The court held:
been filed and stating, inter alia: sustain an award of treble damages under
the LUTPA. In McFadden, a consumer After notification from the Louisiana
This office has not investigated this agreed to buy a new car assuming she Attorney General’s Office, [defen-
matter and makes no determination could obtain a car loan at 7.82 percent dant] failed to pay [plaintiff] on
as to the merits thereof. The purpose interest. She left her Saturn as a trade-in and outstanding invoices it verified. This
of this notice is to place [defendant] drove off the lot with a used Infiniti G35. failure to honor the invoices, leaving
on notice of this claim, and provide The dealer was unable to obtain a loan for [plaintiff] with worthless paper, con-
the defendant with the opportunity the customer at the agreed-upon interest stitutes part of the overall scheme.
to evaluate and if necessary cease rate but was able to arrange a loan from a Additionally, those acts taken which
such activity. Having received this different bank at 9.69 percent interest. The hindered [plaintiff’s] ability to in-
notice, should the same be found, by plaintiff rejected the new loan provisions vestigate, leading to possible fur-
a court of competent jurisdiction, to and sought to return the Infiniti and pick ther damage, are considered by this
constitute a violation of Louisiana up her Saturn. The dealer then undertook Court to be bad acts. Consequently,
Revised Statute 51:1401, et seq., a course of conduct to bully the plaintiff treble damages are recoverable in
the Unfair Trade Practices and to complete the original transaction at the this case. 2014 WL 1401526 at *3.
Consumer Protection Law, the higher interest rate, including refusing to
petitioner in said suit will have take the Infiniti or to give back the Saturn. The court ruled that the continued fail-
fulfilled the notice requirement The defendant also had the plaintiff ure of the defendant to repay the sums
under La. R.S. 51:1409, and may be arrested for theft and had the Infiniti seized reflected on the invoices after notification
entitled to treble damages under the and returned to the dealership. However, by the attorney general justified the treble
statutes. (Emphasis supplied.) even though it now had both cars, the damage award, even though no further in-
dealership refused to return plaintiff’s voices were submitted after the attorney
Accordingly, merely by filing suit and Saturn for approximately six months after general’s form letter was received.
sending a copy to the attorney general suit was filed and three months after the
alleging violations of the LUTPA, and attorney general’s notice issued. After trial, Hadassa Investment Security Nigeria,
before any adjudication by anyone that an the district court awarded damages and Ltd. v. Swiftships
unfair trade practice has been or may have attorneys’ fees, but not treble damages. Late last year, another treble damages
been committed, the plaintiff has fulfilled The 3rd Circuit reversed on this point case was decided in the Western District.
the requirement for a potential award of and trebled the award. The court noted: In Swiftships, the defendant accepted a
treble damages.3 “[Defendant] continued its conversion $500,000 down payment from the plaintiff
In fact, as notice of allegations of of [plaintiff’s] Saturn causing [plaintiff] for a boat. But, thereafter, the defendant
a violation of the LUTPA, the form is damages for the loss of use of her Saturn in sold the boat to a third party and failed to
actually either meaningless or contrary an attempt to coerce [plaintiff] into a sale return the down payment. The court found
to the meaning of the law. Because the until September 2008. Thus, the conduct that the defendant’s conduct constituted a
attorney general is doing nothing more continued after June 19, 2008, the date clear violation of the LUTPA and awarded
than informing the defendant that he has notice was received by [defendant.]” 56 actual damages and attorneys’ fees and tre-
been sued (a fact of which the defendant So.3d at 1223. While it appears that the ble damages under 51:1409(A). The court
is presumably already aware) and, defendant was clearly in the wrong, in fact, did so notwithstanding that the LUTPA
pointedly, not informing the defendant the conduct being penalized by the treble claim was not raised until plaintiff’s Third
that there has been a determination that damage award was not adjudicated to be a Amended Complaint, filed over a year
an unfair trade practice has or may have violation of the LUTPA until after trial, far after suit was originally brought, which
been committed, the attorney general is past the September 2008 date.5 prompted the attorney general’s notifica-
not informing the defendant of anything tion at that time. The court ruled: “To date,
he does not already know except that a AIM Business Capital, L.L.C. v. Reach the ongoing violation is occurring as the
procedural requirement of the statute has Out Disposal funds have not been returned or deposited
been satisfied. Alternatively, if the statute In the Reach Out Disposal case, into the registry of the court . . . . As such,
Louisiana Bar Journal Vol. 65, No. 1 15it is held the plaintiff is entitled to treble Conclusion 5. In the unpublished Pierrotti opinion, plaintiff
damages.” Swiftships at *7. According to arranged to refinance certain property in which
plaintiff and defendant had an interest, thereby
the court’s ruling, even though the form let- A defendant sued for purported
releasing defendant from any obligation associated
ter sent by the attorney general’s office is violations of the LUTPA who receives the with the property. In return, defendant executed
nothing more than a standard notification standard attorney general’s notice must be an “Act of Donation,” transferring his ownership
that a LUTPA suit has been filed and not an very careful about its moves and actions interest in the property to plaintiff. Five years later,
adjudication that there actually has been an during litigation since the defendant could however, when plaintiff sought to sell the property,
technical problems with the Act of Donation were
unfair trade practice, a defendant accused face treble damages for actions not as yet
discovered. At that time, defendant refused to execute
of an unfair trade practice is automatically adjudicated to be violative of the statute.8 any corrective documents and, in eventual response
penalized with treble damages if he loses. This could be particularly sensitive in to plaintiff’s suit to clear the title to the property,
businesses where corporate policies filed a wholly meritless reconventional demand,
Discussion concerning the processing of claims may seeking a 50 percent interest in all income accruing
from the property. After five years of litigation, the
be implicated. In addition, it remains
district court ruled in plaintiff’s favor, finding that
The outcomes of these cases may unclear what happens in situations where defendant’s steadfast refusal to allow plaintiff to sell
have been warranted from a visceral an alleged unfair trade practice creates the property long after defendant had relinquished
standpoint, but the same result would an obligation “to do” on the part of the all his interest in it was an unfair trade practice and,
appear somewhat less defensible in cases defendant, but the extent of the obligation because the standard attorney general notice had been
where the defendant has colorable (even issued, awarded treble damages. With virtually no
is not ascertainable from the allegations in
discussion or analysis, the 1st Circuit affirmed the
if weak) defenses. Further, these cases the petition. district court’s award.
suggest that, pursuant to the statute, if the 6. C.f., Miller v. Conagra, 08-0021 (La. 9/8/08),
form letter is sent by the attorney general, FOOTNOTES 991 So.2d 445, 456, where the court noted: “It is
then, despite any defenses the defendant axiomatic that [defendant] is allowed to explain its
may have had, if the verdict is for the 1. Late last year, the Louisiana 1st Circuit Court reasoning for seeking to terminate the contract with-
of Appeal issued its opinion in Pierrotti v. Johnson, out having its assertions construed as a continuing
plaintiff, the court has no discretion in the
16-0204 (La. App. 1 Cir. 10/28/16), 2016 WL violation of LUTPA. To hold otherwise would be
matter: “The court shall award three times 6330423. The Pierrotti opinion is not designated to require a defendant to choose between admitting
the actual damages sustained.” See, La. for publication. liability on the one hand and extending prescription
R.S. 51:1409(A) (emphasis added). 2. While the statute states that, when a LUTPA by pursuing his defense on the other.” The same logic
Allowing treble damages merely suit is filed, plaintiff’s counsel “shall” mail a copy applies here; a defendant would be required to choose
of the suit to the attorney general, it also states that between immediately paying what is asked for in
because plaintiff makes allegations of
failure to send the suit to the attorney general “shall the petition or risk treble damages if the plaintiff is
unfair trade practices in his petition and not affect any of plaintiff’s rights under this section.” ultimately successful.
sends a copy of the lawsuit to the attorney La. R.S. 51:1409(B). Accordingly, the failure to 7. Consider, too, the situation where the plaintiff
general puts a defendant in the position of, notify the AG “does not defeat the claim for actual can only be made whole by an award of damages
for example, having to return funds only damages and attorney fees, but only defeats the (as opposed to, for example, specific performance)
claim for treble damages.” Laurents v. Louisiana yet the amount of damages are not knowable until
alleged to have been misappropriated by
Mobile Homes, Inc., 689 So.2d 536, 542 (La. App. after trial. Can the defendant be liable for treble
an act or practice violative of the LUTPA 3 Cir. 1997). whatever the damages that the plaintiff ultimately
before there has been any adjudication 3. Any number of courts has recognized that proves at trial?
that the funds were wrongly obtained notice by the attorney general is a prerequisite to 8. A defendant probably should raise this issue
and only thereafter to seek return of the the award of treble damages. See, e.g., B&G Crane early as in, for example, an affirmative defense that
Service, L.L.C. v. Duvic, 05-1798 (La. App. 1 Cir. treble damages are not available to the plaintiff be-
monies from the plaintiff if the unfair trade
6/30/06), 935 So.2d 164, 170; Conry v. Ocwen cause the conduct alleged in the petition to constitute
allegations are not proved. The alternative Financial Corp., 2012 WL 5384681 at *2 (E.D. an unfair trade practice is no longer continuing. That
is to run the risk of treble damages, even La. 2012). However, in most of these cases, either doesn’t necessarily speak to the situation where, for
though the defendant may have a valid, or there was no attorney general notice or no proper instance, there are allegations of monies due that
at least colorable, argument that there was LUTPA claim was alleged or proved. Thus, none of continue not to be tendered, but at least it preserves
these cases discusses whether the notice requirement the issue of the propriety of awarding treble damages
no wrongdoing or LUTPA violation.
refers solely to the ministerial matter of the attorney before any LUTPA violation is proved.
The result of these opinions effectively general forwarding the petition to the defendant or
is a presumption of guilt instead of whether it contemplates some actual finding by the Alexander M. McIntyre
innocence.6 If an unfair trade practice attorney general that the complained-of activity is Jr., of counsel in the New
can be said to continue because the or appears to be a violation of the LUTPA. Orleans office of Baker, Do-
4. If the reason for the treble damage notification nelson, Bearman, Caldwell
effects of a past wrong perpetuate each & Berkowitz, P.C., concen-
is merely to have the defendant evaluate whether
day the alleged wrong is not rectified, it would be prudent to desist ongoing, affirmative trates his practice in the
then a defendant served with the attorney behavior complained of in the lawsuit, then the area of antitrust and trade
general’s form letter is forced to tender notice would seem to be redundant — presumably, regulation and serves as
the disputed amount before there is any any reasonable defendant will be put on notice by chair of the Louisiana State
the lawsuit itself that certain activity is alleged to be Bar Association’s Antitrust
adjudication of wrongdoing in order to and Trade Regulation Sec-
causing plaintiff damages for which the defendant
avoid the possibility of a treble damage could be liable. tion. (amcintyre@bakerdonelson.com; Ste. 3600, 201
award.7 St. Charles Ave., New Orleans, LA 70170)
16 June / July 2017YOUR ADVOCATE.
YOUR PARTNER.
YOUR LSBA COMMITTEE.
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of the Louisiana State Bar Association holds the
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Louisiana Bar Journal Vol. 65, No. 1 17In the Aftermath
of Natural
Disasters:
An Update on Insurance
Coverage for Business
Interruption Claims for
You and Your Clients
By José R. Cot
U
nfortunately, Louisiana has had more than its share of natural or manmade
disasters in the past few years — and several of them within the past few
months.
As an example, considered the worst natural disaster to strike the United
States since Superstorm Sandy in 2012, the unprecedented August 2016 flooding in Louisi-
ana caused catastrophic damage to residential and commercial properties, with 26 parishes
receiving a Major Disaster Declaration by the federal government. According to a report
commissioned by Louisiana Economic Development (LED), an estimated 109,000 hous-
ing units flooded and nearly 20,000 businesses were interrupted by the flooding, with an es-
timated economic loss of more than $300 million in labor productivity and a business inter-
ruption loss (in terms of value added) of more than $800 million. At the peak, an estimated
278,500 Louisiana residents were unable to work due to temporary closures, suspension of
operations, transportation impasses, and residential and commercial flooding.1 At least 13
18 June / July 2017deaths were reported across the state, with policy), designed to complement the cov- associated with an interruption of the in-
tens of thousands of residents rescued or erage afforded under the property policy.4 sured’s business because of damage to the
evacuated from their homes or forced to Because of the potential application of insured’s property that results in a total or
seek refuge in shelters. Because the im- policy exclusions, particularly regarding partial suspension of the insured’s busi-
pacted areas were in elevated zones not in- losses caused by rain, flood, surface water, ness operations. Although business inter-
cluded in the FEMA flood plains, the vast overflow of bodies of water, rainfall run- ruption insurance is designed to protect the
majority of those impacted by the flooding off, etc., counsel must consider whether a insured, it is also designed to prevent the
did not have flood insurance. Nevertheless, particular loss is attributable to “rain” or insured from being placed in a better posi-
it was estimated that industry ground-up “flood” as opposed to other causes. Ac- tion if no loss or interruption of business
insurable losses were between $8.5 billion cordingly, issues regarding apportionment had occurred.7
and $11 billion.2 As of December 2016, of the loss, or concurrent causation, and Although the phrase “business inter-
FEMA had issued more than $588 million interpretation of the corresponding policy ruption” is widely used in the insurance
in Federal Assistance Disaster grants to wording are central to the successful pre- industry, many commercial policies in-
those affected, including more than $2 bil- sentation, or defense, of a claim. This anal- corporate other terms such as “delay,”
lion to National Flood Insurance Program ysis is fact-intensive and, in many cases, “loss of market” and/or “consequential”
(NFIP) policyholders to repair or rebuild requires the testimony of expert witnesses, loss or damages. Practitioners should be
damaged properties, and more than 63,000 such as engineers, meteorologists and oth- mindful of the fact that differences in the
families had sought FEMA assistance for er technical experts. phraseology used in many of the policies
housing.3 For example, in the absence of a defi- providing such coverage have resulted in
Add in the March 2016 flooding in the nition in the policy, most courts define a significant amount of litigation regarding
northern part of Louisiana and powerful “surface water” as water on the surface of the interpretation and application of policy
tornadoes in many parts of the state and the ground, generally derived from falling terms and conditions to specific factual
it becomes very obvious that disaster pre- rain, that does not have a permanent exis- scenarios. A comprehensive analysis of the
paredness should be on the “to-do” list of tence, has no banks, and follows no defined terms and conditions of a particular policy
all legal practitioners. course or channel. However, some courts is essential to determine the insurer’s obli-
As in the aftermath of Hurricanes Ka- have made distinctions among claims for gations with respect to covered perils and
trina and Rita in 2005, many business property damage caused by “surface wa- any applicable policy exclusions or limita-
owners across Louisiana filed insurance ter” depending upon differences in the tions, as well as the proper methodology
claims in connection with damage to their way in which the water accumulated and to compute the insured’s business interrup-
buildings, equipment and other assets as a caused the property damage. The distinc- tion losses. While there is not a plethora of
result of the 2016 floods. Coverage with tions generally fall into three categories — reported cases interpreting business inter-
respect to these claims is generally pro- rainwater runoff, rainwater collected on a ruption insurance policies under Louisi-
vided under comprehensive first-party rooftop, and rainwater after it has reached ana law, the reported cases provide some
property policies. These policies are typi- the ground and been channeled or con- guiding principles in evaluating coverage
cally written on an “all-risk,” “multi-peril” tained. There are also reported cases dis- under these types of policies.
or “named peril” basis, meaning that they cussing whether “surface water” that be- For example, some policies provide
are designed to indemnify the policy hold- comes collected or contained (or diverted) that the insurer will pay for the actual
er for all direct physical loss or damage to loses its character as “surface water.”5 loss of business income that the insured
his/her premises caused by a covered peril, Because the wording of water dam- sustains due to the suspension of his/her
as well as business personal property (the age exclusions may differ depending on business “operations” during the “period
so-called “contents loss” coverage), unless specific policy provisions, counsel should of restoration.” “Operations” generally
coverage for the loss is otherwise excluded conduct a thorough analysis of the policy means business activities occurring at the
under the policy. Generally speaking, these wording and the applicable jurisprudence insured’s premises.8 Moreover, the “period
policies contain water or flood exclusions, and work closely with the appropriate ex- of restoration” generally means the period
and resolution of the scope of coverage perts to effectively frame the issue of cov- of time that begins with the date of direct
afforded under the policy — particularly erage. physical loss or damage caused by, or re-
after a hurricane or similar natural disas- sulting from, a covered peril and ends on
ter — centers on the proverbial “wind v. Scope of Business the date when the property should be re-
flood” controversy, i.e., whether the en- Interruption Coverage paired, rebuilt or replaced, or the date when
suing losses were caused by high winds business is resumed at a permanent or new
(which is a covered peril under the policy) A significant component of commer- location.9 Some policies actually provide a
as opposed to wind-driven water or tidal cial first-party property insurance policies specific time frame (for example, 12 or 18
surge flooding (which are excluded perils). is the so-called “business interruption” months) to delineate the “period of restora-
The risk of damage as a result of water or insurance.6 This type of coverage is de- tion.”
flooding, however, is typically covered signed to protect the insured for the risks In addition to any loss of net income,
through a separate policy (such as a flood most business interruption policies
Louisiana Bar Journal Vol. 65, No. 1 19You can also read
