EEOC v. BDO USA Docket: 16-20314 Opinion Date: May 4, 2017 Judge: Carl E. Stewart Areas of Law: Civil Procedure, Legal Ethics The Fifth Circuit vacated the district court's grant of BDO's request for a protective order, holding that BDO did not prove its prima facie case of attorney-client privilege as to all of the log entries at issue, and that a protective order was unwarranted. The EEOC brought a subpoena enforcement action against BDO, seeking production of information relating to an employment discrimination investigation and asserting that BDO's privilege log failed to establish that the attorney-client privilege protected the company's withheld documents. The Fifth Circuit concluded that the log had three types of deficiencies that prevent the court from determining the applicability of the privilege: (a) entries that are vague and/or incomplete, (b) entries that fail to distinguish between legal advice and business advice, and (c) entries that fail to establish that the communications were made in confidence and that confidentiality was not breached. Because the magistrate judge's incorrect application of the legal standard may have affected both her analysis of the allegedly disclosed communications and the breadth of the protections she imposed in her order, the Fifth Circuit remanded so that BDO's request for protection may be considered under the proper legal standard for determining privilege.
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Louisiana Congressional Delegation Whips Texas In Jones Act Dust-Up www.forbes.com/sites/davidblackmon/2017/05/08/louisiana-congressional-delegation-whips-texas-in-jones-act-dust-up/#2f68fdcf793d Louisiana chief justice blasts 'ridiculous' 18-year sentence for marijuana www.nola.com/traffic/index.ssf/2017/05/judge_blasts_ridiculous_18-yea.html www.lasc.org/opinions/2017/15KO1404.pc.pdf Louisiana Supreme Court Chief Justice Blasts Court For Affirming 18-Year Sentence Over Marijuana www.huffingtonpost.com/entry/louisiana-supreme-court-chief-justice-blasts-court-for-affirming-18-year-sentence-over-marijuana_us_590ce088e4b0104c734f0a40 United States v. Velasco Docket: 16-30341 Opinion Date: May 5, 2017 Judge: Carl E. Stewart Areas of Law: Criminal Law The Fifth Circuit affirmed the district court's application of a four-level sentencing enhancement under USSG 2A2.2(b)(2)(B) for use of a dangerous weapon, concluding that shoes in conjunction with the hard ground constitute a dangerous weapon. Defendant ultimately pleaded guilty to a bill of information for misprision of a felony after he used his shoe to stomp the victim's head against the solid prison floor. New Orleans Bulldog Society v. Louisiana Society for Prevention of Cruelty to Animals Docket: 2016-C-1809 Opinion Date: May 3, 2017 Judge: Crichton Areas of Law: Government & Administrative Law, Non-Profit Corporations The Supreme Court granted review of this matter to determine whether the Louisiana Society for the Prevention of Cruelty to Animals (“LSPCA”) was subject to the Louisiana Public Records Law. More specifically, the issue was whether the LSPCA, by virtue of its Cooperative Endeavor Agreement (“CEA”) with the City of New Orleans to provide animal control services as mandated by the New Orleans Municipal Code, was an instrumentality of a municipal corporation such that it must comply with La. R.S. 44:1 et seq. The Court affirmed the court of appeal, and found that the LSPCA, through its function of providing animal control services for the City of New Orleans, was an instrumentality of the City of New Orleans and had to comply with the Public Records Law. Borcik v. Crosby Tugs, LLC Docket: 2016-CQ-1372 Opinion Date: May 3, 2017 Judge: Crichton Areas of Law: Labor & Employment Law, Environmental Law, Government & Administrative Law, Admiralty & Maritime Law The United States Court of Appeals for the Fifth Circuit asked the Louisiana Supreme Court: “What is the meaning of 'good faith’ as that term is used in the Louisiana Environmental Quality Act, Louisiana Revised Statutes 30:2027?” Eric Borcik was employed by Crosby Tugs, L.L.C. (Crosby) as a deckhand. In July 2010, he was transferred to the M/V NELDA FAYE. Borcik claims that the lead captain of the NELDA FAYE ordered him to dump waste oil into navigable waters and otherwise violate environmental laws over a period of three years. He further claims that he followed these orders. In May 2013, Borcik emailed Crosby’s Chief Administrative Officer (CAO). His email communicated that he had “concerns” that he stated “have all fallen on deaf ears” and expressed “fear [of] some form of retaliation.” He later met with the CAO in person. Borcik was transferred to another boat and later fired. Borcik contends he was fired in retaliation for his complaints; Crosby contends that Borcik was fired for insubordination. Borcik sued Crosby in October 2013, alleging retaliatory termination in violation of Louisiana Environmental Quality Act (“LEQA”), specifically claiming that Crosby violated the Louisiana Environmental Whistleblower Act. The Supreme Court answered the certified question: the term “good faith,” as used in R.S. 30:2027, means an employee is acting with an honest belief that a violation of an environmental law, rule, or regulation occurred. Acurio v. Acurio Docket: 2016-C-1395 Opinion Date: May 3, 2017 Judge: Marcus R. Clark Areas of Law: Civil Procedure, Family Law The Louisiana Supreme Court granted review in this case to resolve a split among the appellate courts regarding the proper interpretation of La. Civ. Code art. 2331. Specifically, the question to resolve involved determining whether parties must duly acknowledge their signatures prior to the marriage in order for the matrimonial agreement to have legal effect. The Supreme Court found the acknowledgment of the signatures to be a form requirement, and the failure to meet all form requirements prior to the marriage rendered the matrimonial agreement invalid. Accordingly, the Court reversed the judgment of the court of appeal and reinstated the district court judgment. Louisiana Supreme Court Opinions Jazz Casino Co, LLC v. Bridges Docket: 2016-C-1663 Opinion Date: May 3, 2017 Judge: John L. Weimer Areas of Law: Gaming Law, Government & Administrative Law, Tax Law In connection with its operation of a land-based casino in New Orleans, Jazz Casino Company, L.L.C. (Jazz) entered into contracts with various hotels for rooms made available to casino patrons on a complimentary or discounted basis. Jazz was required to pay for a specific number of rooms for the duration of the contract even if the rooms were not used by Jazz patrons. As a result of these hotel room rentals, hotel occupancy taxes were remitted to the Louisiana Department of Revenue (Department). The taxes consisted of state general sales taxes and sales tax collected on behalf of the following three entities: Louisiana Tourism Promotion District, the Louisiana Stadium and Exposition District, and the New Orleans Exhibition Hall Authority. In August 2004, Jazz filed three claims for refund with the Department, alleging that Jazz overpaid hotel occupancy taxes for various hotel room rentals from October 1999, and June 2004. Following the denial of its claims by the Department, Jazz filed suit with the Louisiana Board of Tax Appeals, seeking a determination of overpaid taxes in accordance with La. R.S. 47:1621. Finding that these statutory duties were ministerial, the district court issued a writ of mandamus to the tax collector to compel payment of the tax refund judgment. The court of appeal reversed and recalled the writ due to the lack of evidence needed to obtain a writ of mandamus. Based on the ministerial nature of the constitutional and statutory duties owed by the tax collector in connection with the taxpayer’s refund judgment, the Supreme Court reversed the decision of the appellate court, and reinstated the district court’s judgment. Louisiana v. Howard Docket: 2015-KO-1404 Opinion Date: May 3, 2017 Judge: Per Curiam Areas of Law: Constitutional Law, Criminal Law In 2013, defendant Gary Howard was arrested in his girlfriend’s home pursuant to an arrest warrant for violating his probation and parole. Officers had received a tip that defendant could be found at that location, which included an allegation that he possessed a firearm and was involved in narcotics distribution. In this matter, the issue presented for the Supreme Court’s review was whether the evidence presented at trial reasonably permitted a finding that defendant possessed 18 grams of marijuana with the intent to distribute it. The Court found that, while the quantity of marijuana was small, its packaging in conjunction with other indicia of drug trafficking found nearby, when viewed through the due process lens of “Jackson v. Virginia,” (443 U.S. 307 (1979)), sufficed to exclude the hypothesis of innocence that the marijuana was intended only for personal use Louisiana v. Lemoine Docket: 2015-K-1120 Opinion Date: May 3, 2017 Judge: Per Curiam Areas of Law: Constitutional Law, Criminal Law The issue presented for the Supreme Court’s review in this case was whether the court of appeal correctly found the evidence insufficient to support the jury’s determination that defendant committed money laundering pursuant to R.S. 14:230(B)(2), in conjunction with his scheme to fraudulently overbill Union Pacific Railroad for diesel fuel. The Court found that the jury rationally concluded that defendant knowingly gave, transferred, maintained an interest in, and/or otherwise made available things of value which he knew to be for the purpose of committing or furthering the commission of the criminal overbilling scheme. The Court vacated the trial court’s ruling and remanded this case to the court of appeal for consideration of the two remaining grounds in the motion for post-judgment verdict of acquittal. Class-action status sought for Louisiana indigent defense lawsuit www.nola.com/crime/index.ssf/2017/05/class-action_status_sought_for.html Equal wage laws struck down in House committee www.thenewsstar.com/story/news/local/louisiana/2017/05/04/equal-wage-laws-struck-down-house-committee/101280522/ U.S. Court of Appeals for the Fifth Circuit Opinions Doe v. Columbia-Brazoria Independent School District Docket: 16-40882 Opinion Date: May 3, 2017 Judge: Leslie H. Southwick Areas of Law: Civil Rights, Constitutional Law, Education Law Plaintiff, a former student of the school district, filed suit alleging violations of 42 U.S.C. 1983; Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794; and the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq. Plaintiff alleged that he was sexually assaulted when he was in the second or third grade by a male student in the bathroom. The district court granted the school district's motion to dismiss. The Fifth Circuit affirmed, concluding that the district court did not abuse its discretion in considering the school district's second Rule 12(b)(6) motion; the district court did not abuse its discretion by not allowing further discovery or granting a continuance; the section 1983 claims were properly dismissed because plaintiff failed to prove a constitutional violation where the claims were not based on the private conduct of his assailant but on the school district's shortcomings in monitoring the students, training the teachers, and establishing a reporting system for sexual assault; the district court did not err in dismissing the Title IX claim because plaintiff failed to show the school district's actual knowledge required to establish liability under Title IX; and the district court also did not err in dismissing the Section 504 and ADA claims. Singer John Legend Meets With Louisiana Lawmakers www.usnews.com/news/best-states/louisiana/articles/2017-05-03/singer-john-legend-meets-with-louisiana-lawmakers LSU law students breaking new ground with ‘The Legal Ease’ podcast www.businessreport.com/article/lsu-law-students-breaking-new-ground-legal-ease-podcast A puzzling, inhumane, worrisome exception to our public records law: www.nola.com/opinions/index.ssf/2017/05/public_records_louisiana.html Louisiana House removes marriage reference from domestic violence law to assuage conservatives www.nola.com/politics/index.ssf/2017/05/if_domestic_violence_law_is_go.html Bill aims to protect medical marijuana users in Louisiana www.theadvertiser.com/story/news/local/louisiana/2017/05/02/bill-aims-protect-medical-marijuana-users-louisiana/101212382/ Louisiana Lawmaker Wants to Make Recall Elections Easier www.usnews.com/news/best-states/louisiana/articles/2017-05-02/louisiana-lawmaker-wants-to-make-recall-elections-easier Advocates, Press Join Attorney's Battle Over Legal Records www.usnews.com/news/best-states/louisiana/articles/2017-05-02/advocates-press-argue-to-preserve-access-to-legal-records Officers Won't Be Charged in Black Man's Death in Louisiana www.nytimes.com/2017/05/02/us/alton-sterling-justice-department.html?_r=0 Prosecuted by her legal counterpart: 'It destroyed my life in so many ways' www.theguardian.com/us-news/2017/may/01/prosecuted-law-new-orleans Opinion: How Louisiana cops prey on private property www.dailycomet.com/opinion/20170502/opinion-how-louisiana-cops-prey-on-private-property Louisiana Engineers Call State Roads, Bridges 'Embarrassing' www.usnews.com/news/best-states/louisiana/articles/2017-04-30/louisiana-engineers-call-state-roads-bridges-embarrassing |
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