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- The Diversity Disclosure Statement: A New Amendment to Rule 7.1 of the Federal Rules of Civil Procedure In 2021, there were more civil cases filed in federal court based on diversity of citizenship than any other jurisdictional basis.[1] That means any changes to the rules affecting diversity cases are bound to affect lots of litigants. On December 1, 2022, one such change took effect. Federal Rule of Civil Procedure 7.1(a)(2) now requires... Continue Reading...
- Louisiana Supreme Court Debunks Voluntary Pay Doctrine In Leisure Recreation & Entertainment, Inc. v. First Guaranty Bank, the Louisiana Supreme Court found the voluntary pay doctrine to be in direct conflict with the Civil Code. In this action, the borrower was to make payments with interest accruing at 6.5% for years one through five of the loan, 7.5% in years six through... Continue Reading...
- A New Approach to Executory Contracts? Fifth Circuit Opens the Door for the Functional Approach In a decision holding that surety bonds are not executory contracts, the Fifth Circuit signaled that courts may in the future utilize the functional approach to determine if multiparty contracts are executory in nature. The case, filed in the United States Bankruptcy Court for the Middle District of Louisiana as In re Falcon V, L.L.C.,... Continue Reading...
- Important New U.S. Supreme Court Opinion Holding Prejudice No Longer Required To Show Waiver Of Arbitration Agreements In the recent unanimous United States Supreme Court opinion, Morgan v. Sundance, Inc., No. 21-328, 2022 WL 1611788 (2022), issued May 23, 2022, the Court abrogated existing case law and held that prejudice is not a condition of finding that a party, by litigating too long, waived its rights to stay litigation or compel arbitration... Continue Reading...
- Issuing Unconditional "McDill" Tender to Plaintiffs with Pre-Existing Injuries Under Louisiana law, uninsured/underinsured ("UM") insurers are under strict requirements to issue "good faith" unconditional tenders of the undisputed portion of the plaintiff's damages. These unconditional tenders are not contingent on the final disposition of the case, rather they must be paid up front and cannot be recovered in the event of a lower judgment... Continue Reading...
- U.S. Supreme Court Gives Good News to Secured Lenders, Tempered with Words of Caution The U.S. Supreme Court offered some good news to secured lenders last week, tempered with words of caution. In Chicago v. Fulton, the Court held that a secured creditor does not violate Section 362(a)(3) of the Bankruptcy Code by merely continuing to hold property of its debtor after that debtor files a bankruptcy petition. The... Continue Reading...
- The Effect of the Uniform Commercial Code on Certain Limited Liability Company Transfer Restrictions in Louisiana The substantial flexibility afforded by the limited liability company structure has made it an increasingly popular business entity choice. Indeed, most of the default provisions in the Louisiana Limited Liability Company Law, La. R.S. 12:1301, et seq. (the "La LLC Law") may be altered or superseded by the articles of organization or operating agreement of... Continue Reading...
- Statutory Employer: A Louisiana Law Primer Under Louisiana law, workers' compensation is the exclusive remedy that an employee may assert against his employer or fellow employees for work-related injury, unless he was the victim of an intentional act. That exclusive remedy also extends to statutory employers. Workers' compensation legislation was enacted to provide social insurance to compensate victims of industrial accidents,... Continue Reading...
- Successor Liability: Considerations When Structuring Your Acquisition In targeting a company for purchase, many buyers prefer to purchase the assets of a company, as opposed to the stock (or other equity) of the company because, as a general rule, the buyer of assets in an asset acquisition does not automatically assume the liabilities of the seller. Accordingly, an asset acquisition generally allows... Continue Reading...
- Sandys v. Pincus: Expansion of the Rales Test and Lowering of Threshold for Lack of Independence in the Demand Futility Context In Sandys v. Pincus, the Delaware Supreme Court reversed a "thoughtful forty-two page opinion" by Chancellor Bouchard that dismissed a derivative action based upon the stockholder's failure to make pre-suit demand.[1] The court's opinion can be found here. The underlying Court of Chancery opinion can be found here. Expansion of the Rales Test for Demand Futility The authority... Continue Reading...
