Deluge and Dissent: Dissecting Creekstone Juban I, LLC v. XL Insurance America, Inc.

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by Hannah Catchings, Senior Associate

I. Introduction

In August 2016, catastrophic flooding inundated much of southern Louisiana, resulting in 10 deaths[1] and economic damage estimates upwards of $8.7 billion.[2] East Baton Rouge and Livingston parishes bore the brunt of that damage.[3] Among the myriad properties that sustained extensive flood damage was Juban Crossing, a 471-acre mixed-use development located in Livingston Parish.[4] Juban Crossing opened in 2015 and is owned by Creekstone/Juban I, LLC (“Creekstone”), a single asset limited liability company incorporated in Delaware.[4] Following the flood, Creekstone’s insurer, XL Insurance America, a Delaware corporation, paid out $5 million pursuant to the company’s insurance policy; however, Creekstone subsequently filed suit in Livingston Parish seeking additional funds from XL Insurance.[6] In response to the suit, XL Insurance filed a declinatory exception of improper venue, a peremptory exception of no cause of action, and a motion to dismiss, arguing that Creekstone’s policy contained a forum selection clause in which the parties agreed to litigate all disagreements in New York.[7] Consequently, the principal issue in the case became whether the forum selection clause was enforceable. The case eventually reached the Louisiana Supreme Court, which held that Louisiana Revised Statutes § 22:868(A)(2) did not prohibit the enforcement of the disputed forum selection clause.[8] This Lagniappe Post argues in favor of Justice Hughes’s dissenting opinion, in which he outlined three reasons why the majority’s approach was problematic, including public policy, party mischaracterization, and the “unsupportable reformation” of the insurance contract.[9]

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Trans-forming Sex Based Stereotyping

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February 22, 2020

by Taylor Ashworth, Senior Associate

I. Introduction

Congress enacted Title VII of the Civil Rights Act of 1964 (“Title VII”) to make protected characteristics, including sex, irrelevant to employment decisions.[1] Compliance with Title VII requires employers to evaluate employment applicants on their merits rather than their sex.[2] In Price Waterhouse v. Hopkins, the United States Supreme Court established that employment discrimination based on an individual’s non-conformance to sex-based stereotypes violates Title VII.[3]

In Hopkins, the Court found that an employer had denied a female employee a promotion because the employee did not conform to expected female stereotypes due to her apparent masculinity.[4] In its analysis, the Court quoted one of its earlier decisions, stating, “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”[5] In accordance with congressional intent, the Supreme Court in Hopkins concluded that the employer violated Title VII.[6]

In addition to discrimination on the basis of sex, circuit courts—via an extension of the Hopkins Court’s reasoning—have extended Title VII to prohibit discrimination based on gender identity.[7] The Supreme Court has never held that discrimination against someone because he or she is transgender constitutes discrimination “on the basis of sex” within the language of Title VII. The high court’s silence on the issue is, however, coming to a close, as the Court is set to deliver the long-awaited answer this Spring in connection with R.G. & G.R. Harris Funeral Homes Inc.

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Pickin’ on Veggies: Louisiana’s “Truth in Labeling of Food Products Act”

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January 22, 2020

by Missy Oakley, Senior Associate

I. Introduction 

On August 8, 2019, the fast-food chain Burger King launched its meatless, vegan burger: the Impossible Whopper.[1] The Impossible Whopper is just like the classic Whopper,[2] but it is prepared with a plant-based patty instead of a beef patty.[3] McDonald’s recently began testing a similar sandwich in Canada, called the “P.L.T.”[4] Burger King and McDonald’s are among several companies attempting to meet increased consumer demand for “alternative meat”[5] products.[6] More and more consumers are reducing their meat consumption and switching to more plant-based diets amid concerns for personal health, animal welfare, and the environment.[7] This trend toward less meat has brought new products to the market, and it has raised concern regarding how these products are labeled.[8]

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Protecting Louisiana from Running out of Tax Credits like in Ulrich v. Robinson

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January 22, 2020

by William H. Bell, Senior Associate

I. Introduction

In 2007, the Louisiana Legislature, in an effort to increase the amount of solar energy produced within the state, implemented a tax credit for taxpayers who purchased residential solar panels.[1] Beginning in 2008, the solar tax credit gave Louisiana residents a tax credit of 50% of the purchase price on the purchase of residential solar panels, up to $25,000.[2] For example, if a Louisiana resident purchased a $20,000 solar panel system, the taxpayer would receive a $10,000 tax credit. In 2015, Louisiana Legislative Act 131 implemented a $10,000,000 cap on the amount of tax credits the state would issue for the 2015 and 2016 fiscal years, with an effective date of June 19, 2015.[3] Just days before the tax credit cap became effective, Justin and Gwen Ulrich and Raymond and Pam Alleman (collectively “the Taxpayers”) purchased and installed tax credit eligible solar electric systems with the expectation of receiving the tax credits.[4] In 2016, the Taxpayers filed their 2015 income tax returns seeking the tax credits.[5] Act 131’s cap for the 2015 fiscal year had already been met by the time the Taxpayers filed their 2015 tax returns, so the Louisiana Department of Revenue denied the Taxpayers’ tax credits.[6] The Taxpayers then sued the Louisiana Department of Revenue, claiming that Act 131 was unconstitutional because they had been deprived of vested property rights in the tax credits.[7] The Taxpayers litigated their lawsuit for nearly four years.[8] During that period, in 2017, the Louisiana Legislature enacted Act 413, giving the solar tax credit to any taxpayer who purchased solar panels between July 1, 2015, and January 1, 2016, in reliance on the tax credit but did not receive the tax credit because of the $10,000,000 cap.[9] Consequently, the Louisiana Supreme Court declared the Taxpayers’ cause of action moot.[10] Although the Louisiana Legislature remedied the Taxpayers’ harm before a final ruling on the Taxpayers’ lawsuit, the Louisiana Department of Revenue and the Louisiana Legislature should implement reasonable measures that will prevent similar lawsuits from arising, thereby reducing the state’s litigation costs.

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The State is No Crook After 30 Years

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by Michael Schimpf, Senior Associate

November 19, 2019

I. Introduction

Acquisitive prescription is Louisiana’s method of acquiring ownership whereby a possessor attains ownership by possessing a thing for a certain period of time.[1] Acquisitive prescription allows a trespasser, whether in good faith or bad faith,[2] to take ownership over another’s property. Commentators have jokingly labeled acquisitive prescription as a form of “legalized stealing.”[3] Acquisitive prescription, however, has benefits. First, it solves complex title disputes without forcing courts to trace murky titles for generations because it cures any title defects and creates a new title.[4] Second, because the true owner of the property has neglected the thing by allowing the acquisitive prescriber to possess it for an extended time, acquisitive prescription transfers title to the prescriber who values the thing more and has put it to productive use.[5]

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