The Split Continues: An Update on the Never-Ending Ambiguity Surrounding the Securities Litigation Uniform Standards Act

Emiley E. Dillon


Securities litigation and enforcement often increase in times of financial hardship and crisis, and experts believe that the COVID-19 pandemic will be another example of this reality.[1] One critical choice any plaintiff’s attorney in a securities-related class action must make is whether to bring a claim under federal or state law. As securities litigation increases in response to COVID-19, this jurisdictional decision will likely become more relevant.[2] Even before COVID-19, however, this choice has taunted securities lawyers. Congress enacted the Securities Litigation Uniform Standards Act (SLUSA) to give effect to the Private Securities Litigation Reform Act (PSLRA) by preventing claimants from bringing security fraud claims in state court as a method of avoiding the PSLRA’s more stringent federal pleading standards.[3] The SLUSA provides that a claimant may not bring a class action involving more than 50 members in any state court based on state law if the claim involves a nationally listed security and alleges “an untrue statement or omission of a material fact . . . [or] manipulative or deceptive device or contrivance” in connection with buying or selling a covered security.[4]

Federal circuit courts have taken varying approaches to the single question of when a complaint alleges a misstatement or omission sufficient to warrant SLUSA preemption.[5] The question of preemption becomes more difficult to answer when the complaint alleges traditional state-law claims of breach of fiduciary duty or breach of contract with incidental aspects of security fraud.[6] With the increasing willingness of the circuits to interpret the SLUSA broadly and the growing amount of pandemic-related securities litigation, there may be more opportunities for the Supreme Court to finally provide clarity on this issue. Continue reading

Homes Compose the Community: Extend the Community Caretaking Exception to Homes

Kristyn Couvillion

I. Background

A fundamental right secured by the Bill of Rights is the right of individuals to be free of unreasonable governmental searches and seizures. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[1]

Throughout Fourth Amendment jurisprudence, the U.S. Supreme Court has established a reasonableness standard. Courts apply a reasonableness standard when limiting the Fourth Amendment. When an exception to the Fourth Amendment is properly met, law enforcement can conduct a warrantless search or seizure. Some notable exceptions justifying warrantless searches and seizures are exigent circumstances, search incident to arrest, plain view, and consent.[2] Continue reading

Junior Associates Selected for Publication in Volume 82 Announced!

The Louisiana Law Review Volume 81 Board of Editors is proud to announce the Junior Associates selected for publication in Volume 82. The decision process was extremely difficult this year because of the number of well-written student pieces.

Since 1938, the Louisiana Law Review has served as Louisiana’s flagship legal journal and has become a vibrant forum for scholarship in comparative and civil law topics. The Law Review currently ranks in the top 200 student-edited journals, and among the top 50 journals for the highest number of cases citing to a law review. Louisiana Law Review scholars have been recognized around the world for their contributions to both common and civil law doctrine. Publication with the Louisiana Law Review is an incredible honor, and we congratulate those selected for publication. 

Heidi Bieber – Leaving it up to Chance: Problems with the H-2B Statutory Cap on Visas

Madeleine Breaux – Omnipotent Doctrine of Law: The Ministerial Exception after Our Lady of Guadalupe School v. Morrissey-Berru

Andrew Chenevert – Tipping the Cap to Practical and Equitable Considerations: Should the Fifth Circuit Apply 11 U.S.C. § 502(b)(6)’s Cap to Non-rent Damages?

Gabrielle Domangue – Permitting Gross Ups for Title VII Back Pay Awards: A Gross Tax Issue

Natalie Earles – The Great Escape: Exploring Chapter 11’s Allure to Mass Tort Defendants

Sara Grasch – Resolving Louisiana’s Precarious Position on the Sale of Movable Things by Precarious Possessors

Olivia Guidry ­– Res Judica-duh! The Preclusion Revolution: Does Louisiana Code of Civil Procedure Article 425 Operate as a Claim Preclusion Device that Allows Defendants to Avail Themselves of Judgments to Which They Were Not a Party?

Emma Looney – You Can Go Your Own Way: The Failings of Teague v. Lane and Why Louisiana Should Create Its Own Retroactivity Standard

Cullen McDonald ­– The Qui Tam Question: Proper Pleading Requirements for Relators Under the FCA

Victoria Montanio ­– Finally, Some Clarity: Why Statutory Withholding Orders are not Final Orders of Removal Under the Nasrallah v. Barr Analysis

Chaz Morgan – TOPSy-Turvy: The Taylor Opportunity Program for Students Homeschool Discrimination Contradiction

Brad Oster – Reigning In Regulatory Overreach: FERC’s Role In Bankruptcy

Harper Street – Breaking the Chains of a Habitually Draconian Penal System: An Examination of Louisiana’s Habitual Offender Statute with Recommendations for Continued Reform

Casey Thibodeaux – It’s What You Said and How You Said It: The NLRB’s Attempt to Separate Employee Misconduct from Protected Activity in General Motors LLC

Christopher Vidrine – The Zoom Paradox: Schrodinger’s Witness

Andrew Young – Enough with this B-S Standard: Resolving Louisiana Courts’ Problematic Application of a Burden-Shifting Standard in Slip-and-Fall Cases Against Medical Institutions

Burdens, Benefits, or Both? The Impact of Chief Justice Roberts’s June Medical Concurrence on Courts’ Analyses of Abortion Regulations

Benjamin M. Parks

I. Introduction

In 2014, the Louisiana Legislature passed Act 620, or Louisiana’s Unsafe Abortion Protection Act.[1] The law’s basic requirement was that any physician providing abortions in the State of Louisiana had to obtain admitting privileges at a hospital within 30 miles of the location where that doctor performed abortions.[2] Act 620 defined “admitting privileges” as being a member “of the medical staff of a hospital” and having “the ability to admit a patient and to provide diagnostic and surgical services to such patient.”[3] Those who offered abortion services without admitting privileges could face up to $4,000 in fines for each violation.[4] Like most abortion regulations, the Act was not without controversy.[5] Opponents of the Act, including the Center for Reproductive Rights, characterized the law as a way for the State of Louisiana to restrict access to abortion[6] because abortion providers who could not obtain admitting privileges would be required to shutter their clinics.[7] Proponents of the Act argued that it protected women’s health and safety by ensuring that abortion-providing physicians with admitting privileges could treat their patients in hospitals should any complications arise from an abortion procedure.[8] Continue reading

Overbroad or Overboard? Reconsidering the Fifth Circuit’s Application of the Realistic Probability Test in Light of Recent Contrary Opinions

Danielle Grote

In an unusual turn of events last summer, U.S. Fifth Circuit Court of Appeals Judge James E. Graves, Jr. wrote the majority opinion in Alexis v. Barr, then separately wrote a concurrence criticizing his own opinion.[1] Writing for the majority, Judge Graves denied in part and dismissed in part petitioner Alexis’s request for review of the Board of Immigration Appeals (BIA) order affirming an immigration judge’s removal order.[2] In his concurrence, Judge Graves explained that he felt bound by Fifth Circuit precedent in writing the opinion; however, he found the result to be both “illogical and unfair.”[3] At issue in the case was whether Alexis’s conviction under Texas law for possession of cocaine qualified as a controlled substance offense under federal law, making him, a noncitizen, removable from the United States.[4] To answer that question, courts apply a “categorical approach” in which they compare a state criminal law statute to the federally recognized, generic definition of the crime, to determine whether the state law is a categorical match.[5] Where a match is found, certain federal law consequences are triggered, including immigration consequences.[6] In this case, the immigration judge, the BIA, and the Fifth Circuit all agreed that the definition of cocaine is broader under Texas law than federal law.[7] In most circuits, the inquiry would have ended there: the court would declare the Texas law overbroad, and refrain from applying federal immigration consequences. Instead, Judge Graves went on to apply unique Fifth Circuit precedent which dictates that, in order to establish overbroadness, a petitioner must also show a “realistic probability” that Texas will prosecute conduct that falls outside the generic, federal definition of the crime, and ultimately found that Alexis failed to meet that test.[8]

Continue reading