Does Law Industries, LLC v. Department of Education Create a De Facto LUTPA Exemption for Governmental Entities?

by Zack Crawford

Introduction

The Louisiana legislature equipped private citizens with an effective weapon to combat deceptive and misleading commercial activity when it passed the Louisiana Unfair Trade Practices and Consumer Protection Act (LUTPA).[1] But does LUTPA’s economic protection guard against the State’s own conduct? A recent Louisiana Supreme Court decision seemed to blunt LUTPA’s edge when the Court held that a LUTPA cause of action could not be stated against the State because it did not participate in “trade or commerce,” despite transacting in its private capacity.[2] In Law Industries, LLC v. Department of Education, the State of Louisiana entered into a contract for an elementary school refurbishment but terminated the project just a few months after work began.[3] Although the general contractor was able to pursue a breach of contract claim, a subcontractor on the project could only allege a LUTPA violation because it lacked privity of contract with the State.[4] However, the Supreme Court determined that even though the contractors participated in trade or commerce when they entered into the refurbishment agreement, the State did not engage in such trade or commerce because it was acting in “furtherance of its governmental function.”[5] Because the State almost always pursues its governmental function when it takes action, the Law Industries decision likely creates a de facto LUTPA immunity for governmental entities. As a result, future market participants could be left without a remedy when the State acts unfairly. Continue reading

Volume 84, Issue 3

Articles

Constitutional Clash: “Smart Laws that violate the Constitution”

by Paige Meno

Introduction

Picture a bustling metropolis where a seemingly innocent storefront is a façade for a sprawling criminal network. Behind its polished exterior lies a web of deceit, funneling illicit funds through intricate corporate structures designed to evade the law. As law enforcement agencies scramble to solve this knot of financial crime, they face a formidable adversary—the veil of corporate anonymity. Enter the hypothetical scenario of “XYZ Consulting,” a fictitious entity entangled in the crosshairs of suspicion. Despite its appearance as a legitimate business, whispers of nefarious dealings lurk beneath the surface. Unbeknownst to authorities, XYZ Consulting serves as a critical cog in the money laundering machinery, facilitating the flow of dirty money through its labyrinthine corporate structure. Continue reading

“Economic Reality” – A Perpetual State of Confusion

by Lance H. Delrie

Introduction

Congress passed the Fair Labor Standards Act (FLSA) in 1938 to combat “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.”[1] The Act established minimum wage, overtime pay, record keeping, and child labor standards that affect full-time and part-time workers in the private sector and in federal, state, and local governments.[2] The FLSA also established an enforcement arm—the Wage and Hour Division of the United States Department of Labor (DOL).[3] Courts have long viewed the FLSA as congressional action to “protect the rights of those who toil [and] who sacrifice a full measure of their freedom and talents to the use and profit of others.”[4] On January 10, 2024, the DOL issued a final rule titled “Employee or Independent Contractor Classification Under the Fair Labor Standards Act” (Current Independent Contractor Rule) that governs the classification of workers as employees or independent contractors under the FLSA. [5] This rule became effective on March 11, 2024 and replaced its 2021 predecessor.[6] Continue reading

Junior Associates Selected for Publication in Volume 85 Announced!

The Louisiana Law Review Volume 84 Board of Editors is proud to announce the Junior Associates selected for publication in Volume 85. The decision process was extremely difficult this year because of the number of well-written student pieces.

Ashton Austin – From Property Rights to Human Rights: Combating Forced Partition in Louisiana with the Uniform Partition of Heirs Property Act

 

Kris Bromley – From Likes to Rights: A Call to Protect and Compensate Child Stars of Monetized Social Media Accounts with the Louisiana Child Performer Trust Act

 

Patrick Calhoun – Judicial Jackpots: Investing in Lawsuits and Regulation of Litigation Finance

 

Graham Core – Louisiana, the Potential Safe-Haven for Creators of Artificial Intelligence: Louisiana’s Response to Thaler v. Perlmutter

 

Kaleb Delatte – Part Time One Percenters: The Constitutionality of Louisiana’s Justice of the Peace Fee System

 

Aidan Doughty – The Bermuda Triangle of Workplace Injuries: Analyzing Personal Injury Remedies for Offshore Wind Energy Workers on the Outer Continental Shelf

 

Jack Ducote ­– Stop the Cap: A Constitutional Examination of the Louisiana Medical Malpractice Act’s Cap on Damages

 

Madelyn Graves – Risky Business: Should Louisiana Adopt a Jurisdictional Consent Statute After Mallory v. Norfolk Southern Railway Co.?

 

Blaine Jacob ­– The Business of Baseball: MiLB’s Decision to Unionize Reintroduces the Need to Eliminate Baseball’s Historic Antitrust Exemption

 

Nathan Jagot ­– The Calm After the Storm: The Louisiana Electric Utility Storm Recovery Securitization Act and Its Effect on Future Storm Recovery

 

Gabriella Leccese – Can Commentary Command Courtroom Clout?: The Court’s Deference to Commentary to the United States Sentencing Guidelines in a Post-Kisor World

 

Caleb O’Connell – Exorcising the Devil’s Proof: Evaluating Louisiana’s Latest Revisions on Real Actions

 

Tara Roussel – Give SCOTUS’s Code of Conduct Teeth: Reviving Impeachment to Enforce the United States Supreme Court’s Code of Conduct

 

Sarah Szwak – A “Person”al Call to Congress: An Examination of Governmental Immunity in the Fair Credit Reporting Act

 

Susannah Theus – U.S. Copyright Law is Fashionably Late to Regulating IP Compliance in the Fashion Industry

 

Will Wood – School Walls or Church Halls? Navigating Religion in Louisiana’s Classrooms