Bowman v. R. L. Young, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LUKE BOWMAN, ET AL. CIVIL ACTION

VERSUS NO. 21-1071

R.L. YOUNG, INC., ET AL. SECTION: D (5)

ORDER & REASONS

Before the Court is a Motion for Partial Summary Judgment filed by Defendant

R.L. Young, LLC (“YA” or “Defendant”).1 Plaintiffs Luke Bowman (“Bowman”) and

A&H Solutions, Inc. (collectively “Plaintiffs”) oppose,2 and Defendant filed a reply

brief in support of its Motion.3 For the reasons that follow, the Motion is GRANTED

IN PART AND DENIED IN PART.

I. Factual and Procedural Background

This action was initiated by Luke Bowman and A & H Solutions, Inc. in the

Civil District Court for Orleans Parish.4 Bowman brought this action “to seek

payment of unpaid wages, penalty wages, and attorneys’ fees,” among other damages,

claiming that the Defendant, R. L. Young, LLC (d/b/a Young & Associates, or “YA”),

had failed to pay him his due wages while he worked with them as an independent

contractor in various roles in the operation of their business in the Southeast United

States.5 Defendant engaged Bowman to provide repair estimating services for

1 R. Doc. 122.

2 R. Doc. 129.

3 R. Doc. 143.

4 R. Doc. 1-2.

5 Id.

Defendant, and entered into an independent consulting agreement (the “ICA”) as to

certain terms.6 At Defendant’s request, Bowman moved to New Orleans to establish

an office in the city for Defendant and to expand the company’s operations

throughout the southeast United States.7 As a result of this additional work,

Plaintiffs claim that Defendant and Bowman entered into three agreements (one in

writing and two orally) that entitled Bowman to be distributed certain override profit

payments from Defendant’s profits and that Defendant failed to distribute such

payments.8 After removing to this Court on the grounds of diversity jurisdiction,9

Defendant filed a counter-claim, asserting that Bowman had breached his agreement

with Defendant in numerous ways and was therefore responsible to Defendant for

damages.10 In response to a motion to dismiss11 and a motion for summary

judgment12 filed by Bowman, the Court dismissed all counts of the counterclaim.13

There is a great deal of disagreement as to what was and what was not said in

communications which are alleged to form the basis for the oral agreements.

Generally, Defendant asserts that it either made no concrete promises to Bowman

orally or that there was no agreement as to terms.14 What is agreed is that the parties

entered into an agreement as to a Profit Share Override Policy (“PSOR”) in late

6 See R. Doc. 1-2 at pp. 4, 5.

7 Id. at p. 4.

8 Id. at pp. 7, 8-9.

9 R. Doc. 1.

10 R. Doc. 29.

11 R. Doc. 49.

12 R. Doc. 110.

13 R. Docs. 163 and 164.

14 R. Doc. 122-2 at p. 2.

2015.15 Pursuant to that policy, Bowman was entitled to $10 per hour billed on “any

consultant hours that you supervise (not including your own),” subject to certain

requirements.16 He was given a unique code that “must be embedded into the Project

Notes section of any job that [he was] expecting to receive [credit] for.”17 On properly-

coded projects, Bowman would then receive the $10-an-hour once “the invoice

becomes 5 months old AND it’s paid in full.”18 Even on this agreement, however,

there is some dispute as to its meaning. Bowman contends that he was told by Wade

Bushman, then the partner in charge of the Southeast region, that Bowman “would

receive the $10 an hour regardless of any hold back or allocation regarding expenses

and regardless of whether or not the client paid the invoice in full.”19 Defendant

disputes this, claiming that there could be several reasons that the $10-an-hour may

be modified, including due to “swing consultants,” which were consultants from one

region temporarily assigned to another region.20

The second alleged agreement came about as a result of the success Defendant

and Bowman were enjoying in the southeast region. Per Defendant, “Bowman’s

override compensation changed from the PSOR Program to an override system in

which Bowman received a discretionary share of Bushman’s revenue from the

Southeast Region.”21 Defendant insists that “[t]he amount Bowman received was

15 R. Doc. 129-4 at p. 11.

16 R. Doc. 129-4 at p. 12.

17 Id. (emphasis removed).

18 Id. (emphasis removed). Wade Bushman also states that partner approval was required to put a

PSOR code on a job, but the document itself contains no such requirement. R. Doc. 122-6 at p. 8.

19 R. Doc. 122-7 at p. 7.

20 R. Doc. 143-1 at p. 1.

21 R. Doc. 122-2 at p. 8.

discretionary and . . . was never a set determined dollar amount or percentage of the

regional profits.”22 Indeed, Bowman himself testified that “it was never disclosed”

what percentage he would receive23 (although he indicated that he believed there was

a determinable percentage that he was owed).24 Instead, he suggested that he was

told that he “would make a percentage equivalent to the $10-an-hour deal” he had

been receiving under the terms of the PSOR.25 Bowman also contends that Ray

Young, CEO and owner of YA, agreed to “match” Bushman’s contribution.26 For his

part, Bushman contends that while there was a “Luke Bowman specific” “phase

where I gave him a percentage of my profits,”27 there was never a full agreement but,

instead, a “[g]enerous”28 and “[d]iscretionary”29 phase where, “to incentivize

[Bowman],”30 Bushman gave up some of his profit to Bowman out of the goodness of

his heart. Bushman did, however, identify a specific percentage that he was giving

Bowman: seven percent.31

The third alleged agreement relates to what Defendant termed the

“Leadership Pool.” Under this system, which replaced the preceding “Bowman-

specific phase,” Bowman and three other YA contractors (Lyn Crabtree, Peter Padilla,

and David Schifani) were placed in a “leadership pool” where Bushman and Young

22 Id. (emphasis removed).

23 R. Doc. 122-7 at p. 9.

24 Id. at p. 8.

25 Id. at p. 10.

26 R. Doc. 129-13 at p. 46.

27 R. Doc. 129-2 at p. 17.

28 Id. at p. 27.

29 Id. at p. 30.

30 Id. at p. 33.

31 Id. at p. 35.

would place some of their profits into a pool in which those four would share.32

Bushman intended to contribute five percent of his profits into the pool and Young

agreed to match it.33 Bushman stated that he does not remember discussing with

Bowman how joining the leadership pool might or might not affect Bowman’s take-

home pay,34 and he likewise stated that it “doesn’t surprise” him that there would be

no formal documentation of the profit-sharing agreement of the leadership pool.35 He

described the profits that were shared with the leadership pool as “funds that

belonged to us [that is, Bushman and Young] that we were giving them [Bowman,

Crabtree, Padilla, and Schifani],” and referred to it as “[f]unds, gift, compensation,”

but denied that there was an agreement as to percentage or that he or Young had

ever clearly identified to the leadership pool what they could expect to receive from

their participation.36 For his part, Bowman contends that he was told that, whatever

it was exactly that he would be receiving from the leadership pool, “it would be

equivalent to the individual override that [he] had already been receiving,” that is,

equivalent to the percentage agreement he believed he had with Bushman that had

replaced the PSOR system.37

In sum, Bowman believes that he had three successive agreements with

Defendant: first, the PSOR agreement; second, a “deal equivalent to the first deal

plus a match from Ray;” and third, “a percentage from the first deal matched by Wade

32 R. Doc. 122-6 at p. 11.

33 Id. at p. 12.

34 Id.

35 Id. at p. 13.

36 Id.

37 R. Doc. 129-13 at p. 41.

and Ray, but . . . the entire team was sharing in that.”38 Defendant agrees only that

the PSOR agreement was an enforceable contract and disputes even that Bowman is

correct as to the terms of that agreement.

Now before the Court is a Motion for Partial Summary Judgment filed by

Defendant in which Defendant claims that there is no genuine issue as to any

material fact for any of Bowman’s claims aside from his request for declaratory

judgment.39 In particular, Defendant states that it ought to be granted summary

judgment as to Bowman’s claims for breach of contract, violation of the Louisiana

Wage Payment Act (LWPA), violation of the Louisiana Unfair Trade Practices Act

(LUTPA), fraud and fraudulent inducement, negligent misrepresentation, and

detrimental reliance.

II. Legal Standard

Federal Rule of Civil Procedure 56 provides that summary judgment is

appropriate where the record reveals no genuine dispute as to any material fact such

that the moving party is entitled to judgment as a matter of law. No genuine dispute

of fact exists where the record taken as a whole could not lead a rational trier of fact

to find for the nonmoving party.40 A genuine dispute of fact exists only “if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.”41

38 Id. at p. 46.

39 R. Doc. 122.

40 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

41 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The Supreme Court has emphasized that the mere assertion of a factual

dispute does not defeat an otherwise properly supported motion.42 Therefore, where

contradictory “evidence is merely colorable, or is not significantly probative,”

summary judgment remains appropriate.43 Likewise, summary judgment is

appropriate where the party opposing the motion fails to establish an essential

element of its case.44 In this regard, the nonmoving party must do more than simply

deny the allegations raised by the moving party.45 Instead, it must come forward

with competent evidence, such as affidavits or depositions, to buttress its competing

claim.46 Hearsay evidence and unsworn documents that cannot be presented in a

form that would be admissible at trial do not qualify as competent opposing

evidence.47 Finally, in evaluating a summary judgment motion, the Court must read

the facts in the light most favorable to the nonmoving party.48

III. Analysis

A. Breach of Contract

“Under Louisiana law, ‘[t]he essential elements of a breach of contract claim

are [that] (1) the obligor[] undert[ook] . . . an obligation to perform, (2) the obligor

failed to perform the obligation (the breach), and (3) the failure to perform resulted

42 See id.

43 Id. at 249–50 (citation omitted).

44 See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

45 See Donaghey v. Ocean Drilling & Expl. Co., 974 F.2d 646, 649 (5th Cir. 1992).

46 Id.

47 Fed. R. Civ. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987)

(per curiam).

48 Anderson, 477 U.S. at 255.

in damages to the obligee.’”49 Where, as here, an oral contract is at issue, it “is widely

held that only general corroboration must be shown; independent proof of every detail

is not needed.”50 However, La. C.C. Art. 1846 provides that, for “a contract not

reduced to writing … [where] the value is in excess of five hundred dollars, the

contract must be proved by at least one witness and other corroborating

circumstances.”51 While “a party may serve as his own witness and the ‘other

corroborating circumstances’ may be general and need not prove every detail of the

plaintiff’s case . . . the corroborating circumstances that are required must come from

a source other than the plaintiff.”52 As each of the alleged contracts which Bowman

claims were breached presents distinct issues, the Court addresses each separately.

1. The PSOR Agreement

Bowman maintains that he was entitled to PSOR payments (provided, of

course, that he met the relevant requirements) for jobs conducted between

approximately August of 2015 and November of 2016.53 In response, Defendant

submits a declaration from Megan Piechowski, its Chief Administrative Office and

General Counsel, in which she declares that “Bowman . . . was paid all overrides for

which he was eligible under his PSOR program.”54 Bowman contests this and asserts

49 Shargian v. Shargian, 2022 U.S. Dist. LEXIS 48630, *14 (E.D. La. March 18, 2022) (quoting Favrot

v. Favrot, 68 So. 3d 1099, 1108–09 (La. App. 4 Cir. 2011)).

50 Ashy v. Trotter, 888 So.2d 344 (La. App. 3 Cir. 11/10/04).

51 La. C.C. Art. 1846.

52 Diversified Marine Servs., Inc. v. Jewel Marine, Inc., 2016-0617 (La. App. 1 Cir. 6/2/17), 222 So. 3d

1008, 1014.

53 R. Doc. 122-7 at p. 5.

54 R. Doc. 122-4 at p. 2. Bowman contests the validity of this declaration as Piechowski started working

for Defendant in December of 2020, well after the timeframe in which Bowman was receiving PSOR

payments. R. Doc. 129 at p. 11 n.4. The Court declines to strike Piechowski’s declaration as to this

that, in violation of the PSOR policy, Defendant reduced what he was owed “based on

expenses it incurred with the job.”55 Bowman identifies specific jobs in which these

violations occurred in a declaration of his own. Defendant retorts that those specific

examples are of jobs where Bowman did not meet the prerequisites for PSOR

payments. For some of them, Defendant submits that Bowman “did not timely code

them in accordance with the PSOR policy.”56 As the Court concurs with Defendant,

there is no genuine dispute of material fact as to those jobs.

However, Defendant also states that the other specifically identified shortfalls

should not be held to be a genuine issue of dispute as those jobs involved so-called

“swing consultants.”57 According to Defendant’s Director of Finance for Accounts

Payable, “[d]uring busy periods at YA a ‘swing consultant’ could be assigned to a job.

This was a consultant in one region, temporarily assigned to work in another region.

. . . If a ‘swing consultant’ was used on a Southeast Region job, only 50 percent of the

hours would have been eligible for profit override sharing.”58 In the jobs specifically

identified by Plaintiffs, a swing consultant was assigned, thereby, Defendant asserts,

cutting what he was owed in half. Defendant also attaches emails in which Bowman

references swing consultants by which they purport to show his knowledge of the

practice.59 However, while Defendant has shown that Bowman was aware of the

concept of swing consultants, they have not shown that Bowman knew or agreed that

fact, however, as Piechowski is the custodian of the Defendant’s business records which detail the

override payments to Bowman.

55 R. Doc. 129 at p. 11.

56 R. Doc. 143 at p. 6.

57 Id.

58 R. Doc. 143-1 at pp. 1–2.

59 Id. at pp. 5–13.

this would impact his profit share for those jobs. The PSOR policy itself makes no

reference to swing consultants and does not contain language suggesting in any way

that the $10-per-hour is modifiable for such reasons. In fact, it states instead that

“[t]he code above [Bowman’s PSOR code] is locked to the rate above”—that is, “$10.00

per supervised consulting hour.”60 At best, what Defendant seeks to demonstrate is

an oral modification to the PSOR policy, and it provides no corroborating evidence to

demonstrate this change. The closest evidence Defendant puts forth in support is

Bowman’s admission that “Bushman discussed with Bowman the possibility that

some projects might only warrant an OR of $5 per supervised consulting hour.”61

Again, however, the code that Bowman had and used for these jobs was, by the terms

of the agreement, locked to $10-an-hour. Bowman has presented evidence sufficient

to demonstrate a genuine issue of material fact as to whether Defendant breached

this agreement.

2. The Revenue Share Program

The second payment plan about which there is dispute is what Defendant calls

the “Bushman Revenue Share.”62 Bushman’s recollection is that he “informed Luke

that I was going to share some of my money with Luke,” but that Bushman “never

made a promise” as to any amount of funds he would share.63 However, it is

undisputed that this “discretionary” share program replaced the PSOR program.64

60 R. Doc. 129-4 at p. 12.

61 R. Doc. 129-5 at p. 3.

62 R. Doc. 122-2 at p. 14.

63 R. Doc. 122-6 at p. 10.

64 Id.; R. Doc. 122-7 at p. 9 (Bowman testifying: “it was a break of the old agreement, and . . . a whole

new agreement was presented.”).

Defendant contends that this was not a contract at all, and certainly not one for which

Plaintiffs can demonstrate a meeting of the minds as to a particular, enforceable set

of terms. In Defendant’s approximation, this is analogous to the situation in

Ashker v. Horizon Offshore Contrs., Inc., which involved an alleged oral promise to

pay the plaintiff some part of “10% of the company's gross revenues” as a special

bonus.65 The plaintiff in Ashker testified that the promisor “was to have complete

discretion regarding whether Plaintiff was to receive any or all of the bonus pool.”66

The Ashker court dismissed the contract claim for two reasons: first, that “the alleged

terms of the promise are too indefinite.”67 As the amount “was left completely up to .

. . discretion,” and as “Plaintiff was unable to say with any certainty which individuals

would be eligible for the bonus,” “a factfinder would be left to speculation and

guessing to quantify what if anything was owed to Plaintiff.”68 Second, the court held

that the alleged promise “was not a bargained for exchange,” and was thus best

construed as “a unilateral statement gratuitously made and expressing a hope of

what might possibly occur in the future.”69

Here, says Defendant, Bushman made a gratuitous promise of future funds

and Bowman cannot demonstrate that he was owed “a specific profit-sharing

percentage.”70 At most, Bowman has claimed that he was owed “more” money than

he had been making under the PSOR, and he was indeed given more.71 Thus,

65 2000 U.S. Dist. LEXIS 5752, at *9 (E.D. La. April 27, 2000).

66 Id. at *10–11.

67 Id. at *11.

68 Id. at *11–12.

69 Id. at *13.

70 R. Doc. 122-2 at p. 18.

71 Id.

Defendant concludes, there was neither a contract to breach nor a breach of a

contract.

Unlike the promise in Ashker, there is a genuine dispute as to whether or not

Bushman’s revenue share was discretionary. While Bowman has not shown a specific

percentage, he has alleged that Defendant agreed to calculate a percentage by which

he would be compensated.72 As Plaintiffs put it, the “dispute is whether Bushman

represented that Bowman would receive the same percentage of net profits he already

was entitled to receive pursuant to the individual override agreement,” or, as

Defendant contends, Bushman “told Bowman the amount paid would be discretionary

and was not guaranteed.”73 Additionally, there was at least some exchange of value

between the parties—Bowman consented to end his participation in the PSOR

agreement in exchange for what he believed to have been a promise of a percentage

share of the region’s profits.

Moreover, there is a genuine dispute as to the existence of an oral contract

here. In a purportedly non-exhaustive list of corroborating circumstances, Bowman

suggests that the following facts support his position: (1) “Bushman’s admission that

he ‘offered’ Bowman an individual regional override and did so to ‘incentivize’

Bowman;” (2) the suggestion that Bushman made this offer because he was

“concerned” that Bowman was going to be poached by a competitor; (3) an admission

72 See R. Doc. 122-7 at p. 10 (Bowman testifying that he was promised that “would make a percentage

equivalent to the $10-an-hour deal” he had been receiving under the terms of the PSOR). As Plaintiffs

point out in their Opposition, even if a plaintiff is unable to demonstrate a specific percentage owed to

plaintiff under a contract, a plaintiff may still be able to recover a reasonable amount, despite the lack

of certain agreed upon terms. See Allain v. Tripple B Holding, LLC, 2013-673 (La. App. 3 Cir.

12/11/13); 128 So. 3d 1278, 1283.

73 See R. Doc. 129 at p. 15.

by Young that Defendant often “cuts deals” with its consultants that are not

documented; (4) Defendant’s subsequent implementation of a percentage payment

program for all consultants; (5) Defendant’s payments to Bowman of “a fixed percent

of profit for the Southeast Region,” that is, the seven percent that Bushman says he

paid Bowman;74 and (6) an admission in response to an interrogatory that it had

agreed to pay Bowman a percentage “from the revenue share that would otherwise

be distributed to Wade Bushman and Ray Young.”75

Conversely, Defendant argues that Plaintiffs have not “come forward with

competent corroborating [sic] demonstrating a meeting of the minds on a specific

profit-sharing percentage . . . .”76 In their Reply to the Motion, Defendant cites and

discusses several Louisiana state court cases concerning the standards required to

prove sufficient corroborating evidence of an oral agreement.77 Notably, not a single

one of the cases cited by Defendant concerns the standards relevant to summary

judgment.78 At this stage, the Court must determine whether there exists a genuine

dispute of material fact for the trier of fact to resolve, not whether Plaintiffs have

sufficiently proved their case by a preponderance of the evidence. “[A]t the summary

74 R. Doc. 129-2 at p. 35.

75 R. Doc. 129 at pp. 13–14. Defendant points out that the interrogatory response was later amended

to remove the reference to Ray Young. R. Doc. 143 at p. 3.

76 R. Doc. 122-2 at p. 18.

77 R. Doc. 143 at pp. 2–4.

78 The Court also notes that each case cited by Defendant is highly fact-specific, as the inquiry into

sufficient corroborating circumstances necessarily is, and that the mere fact that the facts in this

case do not directly mirror the facts of other cases does not in itself suggest that Plaintiffs have failed

to demonstrate corroborating evidence. Moreover, at the procedural stage relevant to this case, the

Court’s only concern is “whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

Anderson, 477 U.S. at 251–52. That Plaintiffs might not have a sufficient case is not proper grounds

for dismissal at summary judgment.

judgment stage the judge’s function is not himself to weigh the evidence and

determine the truth of the matter but to determine whether there is a genuine issue

for trial.”79

Here, Plaintiffs have “set forth specific facts showing that there is a genuine

issue for trial.”80 Plaintiffs have alleged a number of facts that they contend

corroborates the agreement between Defendant and Bowman. Again, under

Louisiana law, corroborating evidence “may be general and need not prove every

detail of the plaintiff’s case.”81 Defendant, in turn, disputes the probative weight of

that evidence and the credibility of Plaintiffs.82 But, “[c]redibility determinations,

the weighing of the evidence, and the drawing of legitimate inferences from the facts

are jury functions, not those of a judge . . . .”83 Drawing all inferences in favor of the

non-moving party, as this Court must,84 the Court finds there to be a genuine dispute

as to whether the alleged promises were made.

Therefore, the Court will not grant summary judgment as to this element of

the breach of contract claim.

3. The Leadership Pool

Defendant likewise contends that Bowman’s breach of contract claim with

regard to payouts from the Leadership Pool fails for the same lack of corroborating

79 Id. at 249.

80 Id. at 248 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)).

81 Diversified Marine Servs., Inc., 222 So. 3d at 1014.

82 R. Doc. 122-2 at p. 18 (“There exists no credible evidence in the record upon which a reasonable

jury could determine a valid oral agreement for a specific amount of revenues existed . . . .”).

83 Anderson, 477 U.S. at 255.

84 Id.

evidence. Bowman agrees: that he entered the Leadership Pool willingly;85 that, by

entering, he was agreeing to a new system of compensation which superseded the

Bushman revenue share;86 that there was no document outlining the terms of the

Leadership Pool;87 and that he was never told what percentage of the net profit to

Defendant from the region went into the pool.88 Nonetheless, he contends, the dispute

regarding the leadership pool “is whether Bushman represented that Bowman would

receive the same percentage of net profits he already was entitled to receive pursuant

to the individual override agreement or told Bowman the amount paid would be

discretionary and was not guaranteed.”89 Bowman asserts that Bushman told him

that his percentage share from the Leadership Pool “would be equivalent to the

individual override that I had already been receiving.”90 However, the corroborating

evidence is insufficient to demonstrate the existence of a contract which was

breached. The nearest Bowman presents to corroborating evidence for his claim is

testimony from another member of the leadership pool that Bushman indicated to

that member that his compensation would increase by his entry into the leadership

pool: “[Bushman] made the comment that . . . I should be covered for what I was

getting and hopefully a little more.”91 That member, however, had been on a set

$6,000-per-month compensation, not at all akin to the profit share Bowman was

85 R. Doc. 122-7 at p. 17.

86 Id.

87 Id. at p. 18.

88 Id. at p. 17.

89 R. Doc. 129 at p. 15.

90 R. Doc. 122-7 at p. 16.

91 R. Doc. 129-11 at p. 10.

receiving.92 And even that member’s statement is insufficient to corroborate

Bowman’s assertion that Bushman contracted with Bowman to ensure Bowman

would receive a greater sum via the Leadership Pool. As Plaintiff has failed to

demonstrate that a genuine dispute exists regarding the corroborating evidence

sufficient to demonstrate a contract here, the Court will grant summary judgment as

to this claim.

B. Louisiana Wage Payment Act (LWPA) Claim

The LWPA provides in relevant part that, “[u]pon the resignation of any

laborer or other employee of any kind whatever, it shall be the duty of the person

employing such laborer or other employee to pay the amount then due under the

terms of employment.”93 Defendant contends that this statute does not apply to

independent contractors and thus this claim ought to be dismissed. There is no

dispute that Bowman was an independent contractor for Defendant.94 As this Court

has elsewhere recognized, “the LWPA does not cover independent contractors.”95

While Bowman makes a compelling argument in which he construes the linguistics

of the statute so as to include independent contractors, Louisiana courts have rejected

this very construction.96 Therefore, because Bowman cannot advance an LWPA claim

as a matter of law, summary judgment is appropriate as to this claim.

92 Id.

93 La. R.S. 23:631.

94 See R. Doc. 122-2 at p. 26.

95 Badon v. Berry’s Reliable Res., LLC, 2021 U.S. Dist. LEXIS 126056, at *11 (E.D. La. July 7, 2021)

(citing Knapp v. Management Co., 476 So. 2d 567, 568 (La. App. 3 Cir. 1985)).

96 See Knapp, 476 So. 2d at 569 (rejecting the argument that “if [plaintiff] is not an employee, he is

within the class of persons covered by the statute which are called ‘any laborer or other employee of

any kind whatever.’”).

C. Louisiana Unfair Trade Practices Act (LUTPA) Claim

The Louisiana Unfair Trade Practices Act (“LUTPA”) prohibits “[u]nfair

methods of competition and unfair or deceptive acts or practices in the conduct of any

trade or commerce.”97 “The span of prohibited practices under LUTPA is extremely

narrow.”98 As the Fifth Circuit has recognized, “LUTPA does not prohibit sound

business practices, the exercise of permissible business judgment, or appropriate free

enterprise transactions.”99 Instead, the “actions must have been taken with the

specific purpose of harming the competition.”100 “There is a great deal of daylight

between a breach of contract claim and the egregious behavior the statute proscribes;”

however, LUTPA cases “often involve breaches of ethical standards arising from the

employer-employee relationship.”101 In fact, “[a]lthough LUTPA does not provide an

alternative remedy for simple breaches of contract . . . Louisiana courts permit

LUTPA claims based on breaches of ethical standards even if there are ‘parallel

remedies for similar conduct.’”102 Here, Defendant claims that as the LUTPA claim

is “a complete recitation of [Bowman’s] breach of contract claim,” it ought to be

granted summary judgment as to the LUTPA claim.103

97 La. R.S. 51:1405(A).

98 Walker v. Hixson Autoplex of Monroe, L.L.C., 51,758 (La. App. 2 Cir. 11/29/17); 245 So. 3d 1088, 1095

(citations omitted).

99 Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316, 1332 (5th Cir. 1994) (citation omitted).

100 Monroe v. McDaniel, 207 So. 3d 1172, 1180 (La. App. 5 Cir. 2016).

101 Turner v. Purina Mills, Inc., 989 F.2d 1419, 1422 (5th Cir. 1993) (citation omitted).

102 IberiaBank v. Broussard, 907 F.3d 826, 840 (5th Cir. 2018) (quoting Computer Mgmt. Assistance

Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 405 (5th Cir. 2000)).

103 R. Doc. 122-2 at p. 27.

In this case, Bowman’s complaint indicated that the “unfair” conduct in

question was “[Defendant]’s misrepresentations.”104 In his opposition to this Motion,

Bowman elaborates that his LUTPA claim is “based on his contention that

[Defendant] made fraudulent and dishonest representations to him so it could retain

and exploit him.”105 This is not identical to his breach of contract claim; in the

absence of an oral contract of any kind Defendant may still have made fraudulent

representations to Bowman that could provide the basis for a LUTPA claim. Bowman

claims that Defendant, “concerned” that Bowman would be enticed to join a

competing firm, “promised Bowman a share of the profits for all projects throughout

the entire Southeast Region,”106 and that Bushman “promised Bowman he would

receive the same percentage of net profits he was receiving under his individual deal

if he entered the Leadership Pool.”107 As such, there is a genuine dispute of material

fact as to whether Defendant’s conduct violates LUTPA regardless of whether or not

these alleged promises are found to have been contracts. Contract or no contract,

Bowman has alleged “some element of fraud, misrepresentation, deception, or other

unethical conduct” on Defendant’s behalf with these allegedly fraudulent

misrepresentations.108 This claim survives summary judgment.

104 R. Doc. 1-2 at p. 17.

105 R. Doc. 129 at p. 18.

106 Id. at p. 4.

107 Id. at p. 8.

108 Dufau v. Creole Engineering, Inc., 465 So. 2d 752, 758 (La. 1985).

D. Fraud, Fraudulent Inducement, and Negligent Misrepresentation

To maintain a fraud claim, a plaintiff must show: “1) a misstatement or

omission; 2) of material fact; 3) made with the intent to defraud; 4) on which the

plaintiff relied; and 5) which proximately caused the plaintiff's injury.”109 The

elements of fraudulent inducement are essentially identical.110 Meanwhile, a claim

for negligent misrepresentation requires demonstration of three elements: “(1) there

must be a legal duty on the part of the defendant to supply correct information; (2)

there must be a breach of that duty; and (3) the breach must have caused damages to

the plaintiff.”111 Defendant groups these claims because of what it says is a common

element for all three which is not present in this case: “a material misrepresentation

by [Defendant] for which Bowman relied on and was damaged.”112 Defendant argues

that it made no misrepresentations, fraudulent or otherwise, and claims that

Bowman has presented no evidence of fraudulent intent.

“Fraud cannot be predicated on statements that are promissory in nature or

relating to future events. . . . However, fraud may be based on promises made when

there was no intention to perform as promised.”113 In this case, Defendant contends,

at most Bowman has argued that “[Defendant] did not make good on its promises to

109 Williams v. WMX Techs., 112 F.3d 175, 177 (5th Cir. 1997) (citing Cyrak v. Lemon, 919 F.2d 320

(5th Cir. 1990)).

110 See Henry v. Cisco Sys., 106 Fed. Appx. 235, 239 (5th Cir. 2004) (per curiam) (citations omitted)

(“Thus, the general elements of a fraudulent inducement claim are: ‘(1) a misrepresentation of a

material fact, (2) made with an intent to deceive, and (3) causing justifiable reliance with resulting

injury.’”).

111 Cypress Oilfield Contractors, Inc. v. McGoldrick Oil Co., 525 So. 2d 1157, 1162 (La. App. 3 Cir.

1988).

112 R. Doc. 122-2 at p. 30.

113 Taylor v. Dowling Gosslee & Assocs., 44,654 (La. App. 2 Cir. 10/07/09); 22 So. 3d 246, 255.

pay him more money in the future if he continued working with [Defendant] as an

independent contractor.”114 Defendant suggests that this case is analogous to

America’s Favorite Chicken Co. v. Cajun Enters., in which the Fifth Circuit found that

the representations in question there were “nothing more than projections of future

events and, as such, are not actionable as fraud under Louisiana law.”115 Defendant

submits that, here, Bushman at most indicated to Bowman that his earnings might

increase in the future if Bowman agreed to shift from (1) the PSOR agreement to the

Bushman revenue share and (2) from the Bushman revenue share to the Leadership

Pool.

The Court disagrees. Bowman alleges that Bushman informed him that in

moving to the revenue share program he would be receiving “a specific percentage of

profits for the entire Southeast Region” but that he never intended to calculate or

share that percentage, and that in moving from the revenue share program to the

leadership pool Bowman would be receiving “the same percentage of net profits he

was receiving under his individual deal.”116 Bowman’s contention is that he would be

paid a determinable amount under each agreement, namely, “an equivalent of the

$10-an-hour deal translated into a percentage.”117 Unlike in the breach of contract

claim, Bowman need not provide corroborating evidence in order to defeat summary

judgment as to this issue; this is a simple question of witness credibility between

Bushman, who claims his sharing was entirely discretionary, and Bowman, who

114 R. Doc. 122-2 at p. 31.

115 130 F.3d 180, 186 (5th Cir. 1997).

116 R. Doc. 129 at p. 8.

117 R. Doc. 122-7 at p. 10.

claims there was a determinable amount he was promised. If Bushman made such a

promise intending never to fulfill it, that may well be fraud. At the least, there is

sufficient dispute to survive summary judgment on this issue.

Additionally, Defendant suggests that the continual increases in Bowman’s

pay throughout his time at YA proves that the company had no intent to deceive

Bowman.118 This is irrelevant. At issue is not whether Bowman earned more money

each year at YA, but whether he was paid what he was owed. The question of

Defendant’s intent remains an open one. Summary judgment is not appropriate for

these claims.

E. Detrimental Reliance

“A party may be obligated by a promise when he knew or should have known

that the promise would induce the other party to rely on it to his detriment and the

other party was reasonable in so relying.”119 “It is difficult to recover under the theory

of detrimental reliance, because such a claim is not favored in Louisiana.”120 “To

establish detrimental reliance, a party must prove three elements by a preponderance

of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and

(3) a change in position to one's detriment because of the reliance.”121 Notably,

“Louisiana law does not require proof of a formal, valid, and enforceable contract” to

prove a detrimental reliance claim.122

118 R. Doc. 122-2 at p. 32.

119 La. C.C. Art. 1846.

120 In re Ark-La-Tex Timber Co., Inc., 482 F.3d 319, 334 (5th Cir. 2007).

121 Suire v. Lafayette City-Parish Consol. Gov’t, 907 So. 2d 37, 59 (La. 2005).

122 Id.

Defendant claims that Bowman cannot demonstrate either the first or the

third elements of this test. First, they state that “it is undisputed that [Defendant]

did not make a specific representation regarding a specific percentage of profits for

which Bowman would be entitled,” and, as such, “Bowman cannot contend he ‘relied’

on something he admits he had no knowledge of.”123 Alternatively, Defendant

submits, “there is no evidence that Bowman changed his position because of any of

the alleged misrepresentations.”124 Bowman responds that, while he did not have

knowledge of a specific percentage to which he was entitled under what he believed

to be an agreement, he did believe that he “would make a percentage equivalent to

the $10-an-hour deal” he had been receiving under the terms of the PSOR.125

Moreover, Bowman contends that, when he agreed to transition to the leadership pool

system from the percentage agreement he believed he had with Bushman, he relied

to his detriment on Bushman’s representation that Bowman would be receiving from

the leadership pool an amount “equivalent to the individual override that [he] had

already been receiving.”126 As the transition to the leadership pool arguably

diminished his earning ability, Bowman’s claim for detrimental reliance survives

summary judgment.127

123 R. Doc. 122-2 at p. 33.

124 Id.

125 Id. at p. 10.

126 R. Doc. 129-13 at p. 41.

127 Defendant states in its reply that, as “Bowman made significantly more money every year in the

Leadership Pool . . . it cannot possibly be claimed that his ‘reliance’ caused him detriment.” R. Doc.

143 at p. 10. This is a specious argument. Again, the question is not how much Bowman earned but

how much he was owed. Throughout its motion and reply, Defendant attempts to cast aspersions on

Bowman for seeking more when he was given much. It is neither the Court’s concern nor the Court’s

place to determine whether Bowman is greedy or ungrateful; nor is it of import whether Defendant

made more or less in profit due to its association with Bowman. The question is merely what Bowman

IV. Conclusion

Accordingly, IT IS ORDERED that the Motion for Partial Summary

Judgment is GRANTED IN PART AND DENIED IN PART. The Motion is

GRANTED as to the breach of contract claims regarding the third purported

agreement and the LWPA claim. The Motion is DENIED with regard to the

remaining claims: namely, the breach of contract claim as to the PSOR agreement

and the Revenue Share Program, the LUTPA claim, and the claims for fraud,

fraudulent inducement, negligent misrepresentation, and detrimental reliance.

New Orleans, Louisiana, September 1, 2022.

EB Vette

WENDY B. VITTER

UNITED STATES DISTRICT JUDGE

was owed according to his agreements with Defendant and according to any promises he was given.

To suggest that Bowman seeks more money because, for example, what he received “just wasn’t good

enough” is at best ignorant to the questions at hand. R. Doc. 122-2 at p. 2.