# Veritext Corp. v. Bonin

> District Court, E.D. Louisiana · May 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10187830

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** May 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

VERITEXT CORP., ET AL. CIVIL ACTION

VERSUS NO. 16-13903
C/W 17-9877
REF: ALL CASES

PAUL A. BONIN, ET AL. SECTION “B”(2)

ORDER AND REASONS

Before the Court are defendants’ motion for reconsideration
of this Court’s Order and Reasons at Record Document 263 (Rec.
Doc. 265), plaintiffs’ response in opposition (Rec. Doc. 267),
defendants’ reply in support of their motion for reconsideration
(Rec. Doc. 272), plaintiffs’ sur-reply in opposition to
defendants’ motion for reconsideration (Rec. Doc. 274), and
defendants’ sur-reply in support of their motion for
reconsideration (Rec. Doc. 277).
For the reasons discussed below,
IT IS ORDERED that defendants’ motion for reconsideration (Rec.
Doc. 265) is DENIED.
I. FACTS AND PROCEDURAL HISTORY
On February 25, 2019, this Court consolidated plaintiff
Esquire Deposition Solutions, LLC (“Esquire”) and plaintiff
Veritext Corporation’s actions against defendants John J. Lee,
Jr.,1 Vincent P. Borrello, Jr., Milton Donegan, Jr., Suzette Magee,
Kimya M. Holmes, John H. Anderssen, May F. Dunn, Elizabeth C.
Methvin, and Laura Putnam. See Rec. Doc. 91. Veritext and Esquire

are both Delaware corporations providing court-reporting services
to clients across the United States, including in Louisiana. Rec.
Docs. 1 at 5, 117 at 5. Both companies also consume court reporting
services in Louisiana. Id. Plaintiffs provide negotiated rates and
discounts for court reporting services to frequent customers who
agree to utilize plaintiffs’ services for all or some of their
court reporting needs. Rec. Doc. 117 at 8.
Defendants are current and former members of the Louisiana
Board of Examiners of Certified Shorthand Reporters (“Board”),
which is a regulatory body created “for the purpose of encouraging
proficiency in the practice of shorthand reporting as a profession,
promoting efficiency in court and general reporting, and . . .

establishing a standard of competency for those persons engaged in
it.” LA. STAT. ANN. § 37:2551(A) (2021). The Board is authorized to
enforce Louisiana Code of Civil Procedure Article 1434, the
provision under scrutiny in this matter, which prohibits
a person who has a contractual relationship with a party
litigant to provide shorthand reporting or other court
reporting services . . . [or] a person employed part or
full time under contract or otherwise by a person who
has a contractual relationship with a party litigant to

1 On January 11, 2019, the Court granted plaintiffs’ motion to substitute John
J. Lee, Jr., in his official capacity as a member of the Louisiana Board of
Examiners of Certified Shorthand Reporters, for Paul A. Bonin. Rec. Doc. 89.
provide shorthand reporting or other court reporting
services.

LA. CODE CIV. PROC. ANN. art. 1434(A)(2) (2021); see also Rec. Doc.
117 at 6, 17.
In 2012, the Board began enforcing Article 1434 against all
court reporters who entered into volume-based discount contracts
with party litigants. Id. at 13. Plaintiffs consequently brought
Constitutional claims under the dormant Commerce Clause and the
Fourteenth Amendment, as well as a claim under Section 1 of the
Sherman Act, 15 U.S.C. § 1. Rec. Docs. 1, 4. The Court dismissed
plaintiffs’ constitutional challenges, and subsequently dismissed
the Sherman Act claim on reconsideration. Veritext Corp. v. Bonin,
259 F. Supp. 3d 484 (E.D. La. 2017), on reconsideration, 2017 WL
3279464 (E.D. La. Aug. 2, 2017). On appeal, the Fifth Circuit
confirmed the dismissal of Veritext’s Constitutional claims but
reversed the dismissal of its Sherman Act claim because it found
that “Veritext pled facts sufficient to support a finding that the
Board’s conduct does indeed restrain trade.” Veritext Corp. v.
Bonin, 901 F.3d 287, 292 (5th Cir. 2018). Additionally, the Court
held that the Board members were not entitled to Parker immunity
because the active supervision requirement of that doctrine was
“not met.” Id.; see also Parker v. Brown, 317 U.S. 341, 351 (1943).

Plaintiffs then filed a motion for partial summary judgment
on the affirmative defenses of unclean hands, in pari delicto,
indemnification, contribution, and allocation of fault. Rec. Docs.
229, 231, 234. The Court granted summary judgment for the
affirmative defenses of unclean hands and allocation of fault and
dismissed as moot the affirmative defenses of in pari delicto,

indemnification, and contribution. Rec. Docs. 237, 238. Defendants
next filed a motion for reconsideration of plaintiffs’ motion for
summary judgment, which the Court denied on October 22, 2021. Rec.
Docs. 240, 242, 246, 262. Shortly after their motion for
reconsideration, defendants filed a motion to dismiss for lack of
subject matter jurisdiction, which this Court also denied on
December 1, 2021. Rec. Docs. 247, 250, 253, 263. Defendants then
filed the instant motion for reconsideration. Rec. Doc. 265.
II. LAW AND ANALYSIS
A. Motion for Reconsideration Standard
Federal Rule of Civil Procedure 54(b) provides the district

court with “the inherent procedural power to reconsider, rescind,
or modify an interlocutory order for cause seen by it to be
sufficient.” Castrillo v. Am. Home Mortg. Servicing, Inc., No. 09-
4369, 2010 WL 1424398, at *3 (E.D. La. Apr. 5, 2010) (quoting
Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981)). The
district court’s discretion is broad when determining whether a
motion for reconsideration has merit; however, “it is exercised
sparingly in order to forestall the perpetual reexamination of
orders and the resulting burdens and delays.” Id. (citing 18b
Charles A. Wright & Arthur Miller, Federal Practice and Procedure
§ 4478.1 (2d ed. 2002)). “The general practice of courts in the
Eastern District of Louisiana has been to evaluate Rule 54(b)

motions to reconsider interlocutory orders under the same
standards that govern Rule 59(e) motions to alter or amend a final
judgment.” Hoffman v. Bailey, No. 13-5153, 2015 WL 9315785, at *7
(E.D. La. Dec. 23, 2015).
A Rule 59(e) motion “calls into question the correctness of
a judgment.” In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th
Cir. 2002). Rule 59(e) serves “the narrow purpose of allowing a
party to correct manifest errors of law or fact or to present newly
discovered evidence.” Atchafalaya Basinkeeper v. Bostick, 663 F.
App’x 291, 294 (5th Cir. 2016) (quoting Waltman v. Int’l Paper
Co., 875 F.2d 468, 473 (5th Cir. 1989)). Amending a judgment is
appropriate under Rule 59(e): “(1) where there has been an

intervening change in the controlling law; (2) where the movant
presents newly discovered evidence that was previously
unavailable; or (3) to correct a manifest error of law or fact.”
Berezowsky v. Ojeda, 652 F. App'x 249, 251 (5th Cir. 2016) (quoting
Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012)).
Because Rule 59(e) has a “narrow purpose,” the Fifth Circuit has
observed that “[r]econsideration of a judgment after its entry is
an extraordinary remedy that should be used sparingly.” Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). Thus, a motion
for reconsideration “is not the proper vehicle for rehashing
evidence, legal theories, or arguments that could have been offered
or raised before the entry of judgment.” Id. “When there exists no

independent reason for reconsideration other than mere
disagreement with a prior order, reconsideration is a waste of
judicial time and resources and should not be granted.” Ferraro v.
Liberty Mut. Ins. Co., No. 13-4992, 2014 WL 5324987, at *1 (E.D.
La. Oct. 17, 2014).
B. Whether Plaintiffs Must Allege Article 1434 Itself
Violates Federal Law

Defendants initially argue that “when a claim against a state
official is based on the enforcement of a statute, Young does not
apply, unless the statute being enforced is itself
unconstitutional or violates federal law.” Rec. Doc. 265-1 at 2.
Consequently, they assert that “applying Young hinges on whether
Article 1434 violates federal law.”2 Id. The Court finds no support
for the assertion that plaintiffs must allege that Article 1434

2 Defendants state this Court’s previous ruling “was based on the erroneous
finding that (according to Plaintiffs’ allegations) Article 1434 violates the
Sherman Act.” Rec. Doc. 265-1 at 5. To clarify, the Court never found that
Article 1434 violates the Sherman Act. See generally Rec. Doc. 263. All the
Order includes is that “plaintiffs claim an ongoing violation of federal law”
and that “[plaintiffs] assert that the Board members’ enforcement of [Article
1434] violates the Sherman Act.” Id. at 8. The Order does state that the Fifth
Circuit’s “affirmation of plaintiffs’ Sherman Act claim confirms plaintiffs’
right to seek relief for an ongoing violation of that Act.” Id. at 9. But in
doing so, it does not suggest that plaintiffs’ Sherman Act claims succeed on
the merits, only that plaintiffs “have alleged facts sufficient to make a prima
facie Sherman Act claim.” Id. at 8 (citing Veritext Corp., 901 F.3d at 292).
itself violates federal law for the Ex parte Young exception to
apply.
“For Young to apply, three criteria must be satisfied: (1) A

plaintiff must name individual state officials as defendants in
their official capacities; (2) the plaintiff must allege an ongoing
violation of federal law; and (3) the relief sought must be
properly characterized as perspective.” Green Valley Special Util.
Dist. v. City of Schertz, Tex., 969 F.3d 460, 471 (5th Cir. 2020)
(citations omitted). Defendants believe “the second prong was
erroneously applied.” Rec. Doc. 265-1 at 2. However, Supreme Court
and Fifth Circuit case law dictates that as long as plaintiffs
allege that the actions of state officials, in their official
capacity, violate federal law, that allegation is sufficient for
the Young exception to apply. See, e.g., Verizon Md., Inc. v. Pub.
Serv. Comm’n of Md., 535 U.S. 635, 645-46 (2002); Idaho v. Coeur
d’Alene Tribe of Idaho, 521 U.S. 261, 281 (1997) (“An allegation

of an ongoing violation of federal law where the requested relief
is prospective is ordinarily sufficient to invoke the Young
fiction.”); Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004)
(“[T]he Eleventh Amendment permits suits for prospective
injunctive relief against state officials acting in violation of
federal law.”); Mayfield v. Tex. Dept. of Crim. Just., 529 F.3d
599, 604 (5th Cir. 2008) (quoting McCarthy ex rel. Travis v.
Hawkins, 381 F.3d 407, 412 (5th Cir. 2004)) (“Under Ex Parte Young,
a federal court, consistent with the Eleventh Amendment, may enjoin
state officials to conform their future conduct to the requirements
of federal law.”). Cory v. White, a case defendants cite, even

seems to support this concept when it plainly states “the Eleventh
Amendment bars suits against state officers unless they are alleged
to be acting contrary to federal law or against the authority of
state law.” 457 U.S. 85, 91 (1982).
Many cases that include enforcement related injunctive relief
do allege that the underlying state statute is unconstitutional or
violates federal law, but this type of allegation does not appear
to be a requirement. See, e.g., Am. Bank & Tr. Co. of Opelousas v.
Dent., 982 F.2d 917, 921 (5th Cir. 1993) (noting that challenging
a state law as unconstitutional “is common in Young cases,” but
never stating this type of challenge is required). For example, in
NiGen Biotech, L.L.C. v. Paxton, the Court found that the Young

exception applied even though plaintiffs claiming enforcement-
related relief never alleged that the underlying state statute
violated federal law. See 804 F.3d 389, 392, 394-95 (5th Cir.
2015). There, a company called NiGen labeled dietary supplements
with the term “hCG.” Id. at 392. The Attorney General of Texas
found the labeling to be misleading according to the Texas
Deceptive Trade Practices Act and sent letters to NiGen intimating
that formal enforcement was on the horizon if NiGen did not change
the labeling. Id. NiGen subsequently sought permanent injunctive
relief and a declaration that its labeling did not violate federal
law, among other remedies. Id. When NiGen filed suit, the Attorney
General claimed that NiGen never alleged an ongoing violation of
federal law. Id. at 394. The court found that “the complaint’s

straight forward allegations, of which there are many,” stating
that the Attorney General refuses to justify its threatening
letters in violation of the Constitution, are “sufficient to
demonstrate the ongoing nature of the alleged unconstitutional
conduct which a federal court could remedy through prospective
relief.” Id. at 395. The plaintiffs did not allege that the Texas
Deceptive Trade Practices Act, the underlying statute, was
unconstitutional, but rather, that the enforcement measures were.
Id. Nevertheless, the court in NiGen still found those allegations
sufficient for Young to apply. Id.
Here, plaintiffs do not allege that Article 1434 is
unconstitutional or violates a federal law,3 but they allege that

3 In their motion for reconsideration, defendants continually state that
plaintiffs never allege that Article 1434 violates the Sherman Act; plaintiffs
“contend only that Defendants’ alleged conduct violated the Sherman Act, not
Article 1434 itself.” Rec. Doc. 265-1 at 5, 6, 11. This assertion was never in
dispute. See Rec. Doc. 263 at 8 (“[Plaintiffs] assert that the Board members’
enforcement of [Article 1434] violates the Sherman Act.”). The Court’s previous
Order does state that “[i]f a plaintiff alleges a state law violates a federal
statute, then the Ex parte Young exception still applies.” Rec. Doc. 263 at 9.
But the Court never stated that plaintiff made this allegation, it was merely
speaking generally. Defendants acknowledge that “[t]his Court has previously
clarified that its references to Article 1434 violating the Sherman Act ‘refer
to plaintiffs’ allegations that [Defendants] enforcement of Article 1434
violates the Sherman Act.’” Rec. Doc. 265-1 at 11 (quoting Rec. Doc. 262 at 7).
They continue: “That clarification was made in a different context . . . and
Defendants do not believe the Court intended to apply that same clarification
here. Rather, Defendants believe the Court’s decision addressed whether Article
1434, as the ‘underlying authorization’ for Defendants’ enforcement actions,
defendants’ enforcement measures, such as prohibiting “agreements
between court reporters and customers which offer volume-based
price discounts,” applying Article 1434 to insurance companies who

are not a party to a case, and enforcing Article 1434 against court
reporters who enter into volume based discounts, violate the
Sherman Act. See Rec. Doc. 117 at 11, 13, 16-18. As such,
plaintiffs seek “[a] permanent injunction against the Board
prohibiting enforcement of Louisiana Code of Civil Procedure
Article 1434 and 46 La. ADC Pt XXI, § 130 for the purpose of
discouraging, eliminating, or prohibiting volume-based price
discounts by court reporters.” Id. at 22. Essentially, when
plaintiffs seek an injunction against enforcement of Article 1434
“for the purpose of discouraging, eliminating or prohibiting
volume-based price discounts by court reporters,” they seek
prospective relief from the ongoing violations of federal law that
plaintiffs allege throughout their complaint. The Young exception

requires no more.4
It seems logical that in many cases where plaintiffs seek
enforcement related relief, plaintiffs also allege that the

was alleged to violate the Sherman Act.” Id. It is unclear why the Court would
not “apply the same clarification” across two of its own Orders, especially
when both Orders plainly state the same clarification. See Rec. Doc. 263 at 8.
4 Throughout their motion for reconsideration and reply, defendants argue that
Article 1434 does not violate the Sherman Act. See Rec. Doc. 265-1 at 2-3, 5,
7-10; Rec. Doc. 272 at 8-9. The Court need not address whether Article 1434
violates the Sherman Act as it finds that neither party alleges as so, and
plaintiffs need not allege that Article 1434 violates the Sherman Act for Young
to apply. See Rec. Doc. 265-1 at 2; Rec. Doc. 267 at 3.
underlying state statute is unconstitutional. If a plaintiff
alleges a state statute itself violates federal law, then it
follows that the relief sought would be an injunction prohibiting
enforcement of that state statute. See, e.g., City of Austin v.
Paxon, 943 F.3d 993, 996, 998-99 (5th Cir. 2019) (seeking to

prohibit enforcement of a state statute because it violates federal
law). However, merely because the term “enforcement” is included
in requested relief, does not necessitate the plaintiffs alleging
that the underlying state statute they seek relief from is
unconstitutional. See Papasan v. Allain, 478 U.S. 265, 279 (1986)
(“In discerning on which side of the line a particular case falls,
we look to the substance rather than to the form of the relief
sought.”).
Still, defendants rely on Worcester County Trust Co. v. Riley,
302 U.S. 292, 299 (1937), Cory v. White, 457 U.S. 85, 91 (1982),
and Papasan v. Allain, 478 U.S. 265, 277 (1986) to argue that

plaintiffs’ allegations are not sufficient to prompt application
of the Ex parte Young exception. Id. The three cases cited,
nevertheless, do not clearly illustrate that the state statute
itself needs to explicitly violate federal law for Young to apply.
In Worcester County Trust, the Court found that “the
threatened action of respondents” did not involve “any breach of
state law or of the laws or Constitution of the United States,”
and thus, the Young exception was inapplicable. 302 U.S. at 299.
However, the Court did not foreclose the possibility that
threatened action could violate the laws of the United States, and
therefore, warrant application of the Young exception. Id. at 298.
In fact, it specifically contemplates this possibility. See id.

(suggesting that if petitioner asserted that courts in California
or Massachusetts threatened to hold that their laws taxing
inheritances apply to intangibles of those domiciled in other
states, an action that would violate federal law, then that type
of action could be “within the reach of the federal judicial
power”).
Cory also does not support defendants’ proposition. Cory did
decline to overrule Worcester County Trust, as defendants note,
but does not suggest that a state law itself must violate federal
laws for the Young exception to apply. See 457 U.S. at 91. Indeed,
Cory states that Worcester County Trust’s main holding is that

“generally, suits to restrain action of state officials can,
consistently with the constitutional prohibition, be prosecuted
only when the action sought to be restrained is without the
authority of state law or contravenes the statutes or Constitution
of the United States.” Id. at 89. Cory then affirms that “the
Eleventh Amendment bars suits against state officers unless they
are alleged to be acting contrary to federal law or against the
authority of state law.” Id. at 91. No aspect of this language
seems to suggest that a state law, as written, must specifically
violate federal law for the Young exception to apply.
In Papasan v. Allain, the Court states, “Young applies only

where the underlying authorization upon which the named official
acts is asserted to be illegal.” Papasan, 478 U.S. at 277.
Defendants insist this clause means a state statute must be alleged
to be illegal for Young to apply, but it could mean that any
authority, such as a guideline, directive, or order, that an
official uses to act in violation of federal law must be “asserted
to be illegal.” See id. Indeed, this interpretation would seem to
explain NiGen Biotech, L.L.C. v. Paxton, as well as Verizon
Maryland, Inc. v. Public Service Commission of Maryland, a Supreme
Court case more recent than Papasan. See 804 F.3d 389, 392, 394-
95 (5th Cir. 2015); 535 U.S. 635, 645-46 (2002).
In Verizon, plaintiff filed a complaint against the Maryland

Public Service Commission (“Commission”) for issuing an order that
plaintiff claimed violated federal law. 535 U.S. at 640. The Court
did not find that any underlying state statute violated federal
law. See id. at 645-46. Plaintiff’s allegations that the
Commission’s action, through its order, violated federal law were
sufficient for the Young exception to apply. Id. The Court even
added that “Ex parte Young itself was a suit against state
officials . . . to enjoin enforcement of a railroad commission’s
order requiring a reduction in rates.” Id. at 646. Indeed, the
plaintiff’s claim in Verizon was not based on enforcement of a
statute, it was based on an order, but Papasan’s statement that
“Young applies only where the underlying authorization upon which

the named official acts is asserted to be illegal” makes no
distinction between claims based on enforcement of a statute or
enforcement of an order. See 478 U.S. at 277. Consequently, the
Court finds that it did not err in finding that plaintiffs alleged
an ongoing violation of federal law, and that plaintiffs satisfied
the second prong of the Young criteria. See Green Valley, 969 F.3d
at 471.
C. Prospective Relief
“[A] litigant may sue a state official in his official
capacity if the suit seeks prospective relief to redress an ongoing
violation of federal law.” Williams on behalf of J.E. v. Reeves,
954 F.3d 729, 736 (5th Cir. 2020). Defendants claim that

plaintiffs’ requested relief against defendants in their official
capacity do not redress an ongoing violation of federal law. They
state, “how would enjoining enforcement of Article 1434 prevent an
ongoing violation of federal law as required for Young? The answer:
it would not.” Rec. Doc. 272 at 1. In doing so, defendants seem to
revive an argument from their original motion to dismiss. See Rec.
Doc. 247-1 at 2. There, they claimed plaintiffs cannot avoid
“Eleventh Amendment immunity by ‘qualifying’ their injunctive
relief to enforcement taken ‘for the purpose of’ attacking alleged
volume-based discounts.” Id. Defendants argue that “the Eleventh
Amendment protects the enforcement of a constitutional state
statute—as written—regardless of any alleged illicit ‘purpose.’”
Id.; see also Rec. Doc. 272 at 4 n.5 (“It does not matter that

Plaintiffs ‘limit’ their requested injunction to enforcement
actions taken when so-called ‘volume-based price discounts’ are
involved.”).
In making these arguments, defendants seem to believe that
there is no difference between seeking an injunction against
enforcement of Article 1434 and an injunction against enforcement
of Article 1434 “for the purpose of discouraging, eliminating, or
prohibiting volume-based discounts.” See Rec. Doc. 117 at 22. We,
however, see a distinction, and find that plaintiffs do seek
“prospective relief to redress an ongoing violation of federal
law.”5 See Air Evac EMS, Inc. v. Tex. Dep’t Ins., Div. of Workers
Comp., 851 F.3d 507, 520 (5th Cir. 2017) (“As with most
jurisdictional questions, Ex Parte Young and standing turn on the

specific details in the complaint.”).
Plaintiffs generally allege that the Board’s interpretation
and enforcement of Article 1434 violates the Sherman Act. See Rec.
Doc. 117 at 10-13, 21-22. Specifically, plaintiffs claim the Board

5 Defendants seem to even recognize a possibility of this distinction as they
omit “for the purpose of discouraging, eliminating, or prohibiting volume-based
price discounts by court reporters” every time they quote plaintiff’s prayer
for relief. See Rec. Doc. 272 at 1-4, 7.
has declared that it prohibits agreements between court reporters
and customers which offer volume-based price discounts or service
concessions to frequent customers. Id. at 11. They allege the Board

has also interpreted the statute to extend to assignments paid for
by insurance companies on behalf of their insureds, even if the
insurance company is not party to the suit. Id. Plaintiffs also
claim that to enforce its directives, the Board in several
instances issued “broad and burdensome subpoenas to insurance
companies for the express purpose of disrupting the commercial
relationships between insurance companies and national court
reporting firms like Veritext.” Id. at 16. According to plaintiffs,
to be released from the subpoena, the Board demanded that these
insurance companies publicly declare that they did not have
exclusive contracts with court reporting firms like Veritext. Id.
Additionally, plaintiffs alleged the Board hired attorneys to
investigate court reporters and opened formal investigations. Id.

at 16-17. Allegedly, the Board also sent Veritext a Notice of
Investigation and a Rule to Show Cause. Id. at 17-18. “Although
the Board ultimately continued the show cause hearing without date,
Veritext, Esquire, and other national court reporting firms . . .
remain in jeopardy of prosecution.” Id. at 18. To address these
alleged ongoing violations of federal law, plaintiffs seek “[a]
permanent injunction against the Board prohibiting enforcement of
Louisiana Code of Civil Procedure Article 1434 and 46 La. ADC Pt
XXI, § 130 for the purpose of discouraging, eliminating, or
prohibiting volume-based price discounts by court reporters.” Id.
at 22.

If plaintiffs had simply sought an injunction against Article
1434 enforcement without a qualifier, then we might agree with
defendants that plaintiffs’ prospective relief would not redress
an ongoing violation of federal law. As neither party claims
Article 1434 violates the Sherman Act or is otherwise
unconstitutional, then asking to fully prohibit enforcement of
Article 1434 would be too expansive. See Rec. Doc. 267 at 3; Rec.
Doc. 265-1 at 2. Nevertheless, plaintiffs do seek an injunction on
the enforcement of Article 1434 “for the purpose of discouraging,
eliminating, or prohibiting volume-based discounts.” See Rec. Doc.
117 at 22. Meaning, they seek relief from the practices that
plaintiffs throughout their complaint allege violate the Sherman
Act. See id. at 11, 13, 16-18; Rec. Doc. 168-2 at 3. Consequently,

plaintiffs’ prospective relief does redress an alleged ongoing
violation of federal law. See Papasan, 478 U.S. at 279 (“In
discerning on which side of the line a particular case falls, we
look to the substance rather than to the form of the relief
sought.”).
However, defendants maintain that since “Article 1434, as
written, does not violate federal law,” then “the enforcement of
Article 1434 as written . . . does not violate federal law,” and
consequently, the Young exception does not apply. Rec. Doc. 272 at
5. Article 1434 may not violate federal law as written, however,
that does not preclude the Board from enforcing Article 1434 in a

manner that does violate federal law. Indeed, plaintiffs do allege
that defendants may not be enforcing Article 1434 as written, and
that these errors in enforcement violate federal law. See Rec.
Doc. 117 at 11, 13, 16-18, 21-22. In plaintiffs’ complaint, they
state:
the statute lacks any definition of “contract” or other
standards to distinguish between lawful and unlawful
contracts. It provides no guidance about which of the
following alternatives is correct: (1) the statute
prohibits all agreements between court reporters and
party litigants; (2) the statute requires party
litigants to engage court reporters through their
attorneys; (3) the statute permits an agreement for a
single engagement but prohibits long-term agreements;
(4) the statute prohibits court reporters from offering
volume-based price discounts or service concessions to
frequent customers; (5) the statute prohibits referrals
from court reporting firms; or (6) the statute prohibits
a combination of the above or something else entirely.

Rec. Doc. 117 at 11. Plaintiffs allege that interpreting and
enforcing Article 1434 as a statute that “prohibits court reporters
from offering volume-based price discounts or service concessions
to frequent customers” is an interpretation of the statute that
violates the Sherman Act. Id. Consequently, defendants may believe
they are plainly enforcing Article 1434 as written, but plaintiffs
allege they are not. Id. At this stage, the Court need not decide
whether defendants’ actions actually violate the Sherman Act. In
deciding whether to grant the Young exception, the Court “need
only conduct a straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and seeks
relief properly characterized as prospective.” Verizon, 535 U.S.

at 645. We, thus, find that plaintiffs’ allegations are sufficient
for the Young exception to apply.
Finally, in defendants’ original motion to dismiss, they add
that “Plaintiffs’ requested injunctive relief could not even be
ordered because, as a practical matter, it would require the courts
to divine the ‘purpose’ behind the enforcement of Article 1434 and
lead to violations of the Younger doctrine.” Rec. Doc. 247-1 at 2.
Plaintiffs requested relief may be imprecise, but again, whether
the Court practically can or should grant plaintiffs’ requested
relief is not an appropriate inquiry for the Young exception. See
Verizon, 535 U.S. at 645; Air Evac, 851 F.3d at 520 (acknowledging
that Ex parte Young poses a “threshold jurisdictional question”

and declining to “consider the availability and scope of any
eventual relief”); Texas Democratic Party v. Abbott, 978 F.3d 168,
180 (5th Cir. 2020) (quoting Va. Off. for Prot. & Advoc. v.
Stewart, 563 U.S. 247, 255 (2011)) (“It is permissible under Ex
parte Young for a court to ‘command[] a state official to do
nothing more than refrain from violating federal law.’”). A Court
need only determine that plaintiff sued state officials in their
official capacity, alleged an ongoing violation of federal law,
and sought prospective relief. Green Valley, 969 F.3d at 471.
Plaintiffs’ allegations are sufficient to meet this standard.6
C. Plaintiffs’ Allegations Regarding the Board’s
Implementation of Rules and Regulations

In their reply, defendants argue that “plaintiffs falsely
suggest that their claims against Defendants in their official-
capacities rest on allegations that Defendants ‘implement[ed]
rules and regulations to increase the rates for court reporting
services in Louisiana and to discourage Plaintiffs and other court
reporting firms from competing in Louisiana.’” Rec. Doc. 272 at 5
(quoting Rec. Doc. 267 at 2-3). Thus, defendants contend that
plaintiffs cannot assert that “the ongoing ‘enforcement’ of any
rule or regulation has and will continue to violate the Sherman
Act in the future.” Id. at 6. Whether or not plaintiffs
mischaracterized their allegations, they do not need to allege
that a rule or regulation violates federal law for the Young
exception to apply, and thus, plaintiffs satisfy all Young
criteria.

6 In their sur-reply, plaintiffs suggest that they properly allege prospective
relief redressing ongoing violations of federal law because their prayer for
relief expressly asks for “such further relief, in law and equity, as the Court
may deem just and proper.” Rec. Doc. 274 at 1-2. Defendants assert that
“Plaintiffs are effectively asking this Court for permission to amend their
Complaints by broadening their requested official-capacity injunction to
undefined and undeterminable lengths.” Rec. Doc. 277 at 2. The Court need not
address plaintiffs’ argument, nor defendants’ response, as it finds plaintiffs’
request for an injunction prohibiting the Board’s enforcement of Article 1434
for the purpose of discouraging, prohibiting, or limiting volume-based discounts
is prospective relief redressing an ongoing violation of federal law. See Rec.

Doc. 117 at 22.
In their complaint, plaintiffs allege that the Board has
“advised” all court reporters that should they work for one of
these “national” firms, which engage in volume-based discounts,
then they might be in violation of Article 1434. See Rec. Doc.
168-2 at 3. This directive is similar to the order in Verizon that

the plaintiffs alleged was an ongoing violation of federal law. In
Verizon, the Court found that plaintiffs’ prayer “that state
officials be restrained from enforcing an order in contravention
of controlling federal law” was prospective relief redressing an
ongoing violation of federal law. Verizon, 535 U.S. at 645. Similar
to Verizon, plaintiffs here seek an injunction prohibiting
enforcement of Article 1434 “for the purpose of discouraging,
eliminating, or prohibiting volume-based discount”—or in other
words, plaintiffs seek an injunction against the ongoing
violations of federal law alleged throughout their complaint. See

Rec. Doc. 117 at 10-11, 21-22. Thus, whether or not plaintiffs
specifically allege that defendants “violated the Sherman Act in
their official capacities by implementing, promulgating, or
enforcing any rules or regulations,” the Court finds that
plaintiffs allege state officials’ actions present an ongoing
violation of federal law, and consequently, the Young exception
still applies. See Rec. Doc. 272 at 5.
New Orleans, Louisiana this 27th day of May, 2022
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10187830. Public record. Not legal advice.