Michael Miazza, individually and on behalf of all others similarly situated v. Board of Supervisors of Louisiana State University and Agicultural and Mechanical College

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2023 CA 1149

LL, jj) MICHAEL MIAZZA, INDIVIDUALLY AND ON BEHALF OF ALL

yy Le by Ky OTHERS SIMILARLY SITUATED

i We VERSUS

Ti 1, AGRICULTURAL AND MECHANICAL COLLEGE

Ke, Consolidated With

NUMBER 2023 CA 1150

TAYLOR GUNTER, ON BEHALF OF HERSELF AND OTHER

INDIVIDUALS SIMILARLY SITUATED

VERSUS

LOUISIANA STATE UNIVERSITY SYSTEM, AND OTHER AFFILIATED

ENTITIES AND INDIVIDUALS MARY L. WERNER, ROBERT S. DAMPF,

JAMES M. WILLIAMS, RONALD R. ANDERSON, LEE MALLETT,

RICHARD E. ZUSCHLAG, JACK A. BLOSSMAN, REMY VOISIN STARNS,

JIMMIE M. WOODS, GLENN ARMENTOR, VALENCIA S. JONES, B.

WAYNE BROWN, PATRICK C. MORROW, RAYMOND R. MORRIS AND

COLLIS B. TEMPLE

DATE OF JUDGMENT: ‘US 09 2024

ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT

PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA

NUMBER C696918 C/W C698930

HONORABLE DONALD R. JOHNSON, JUDGE

kkk KR EK

Christopher K. Jones Counsel for Defendant/Appellant

Andrew Blanchfield Board of Supervisors of Louisiana

Chelsea A. Payne State University and Agricultural

Baton Rouge, Louisiana and Mechanical College

Andrew A. Lemmon Counsel for Plaintiff/Appellee

New Orleans, Louisiana Taylor Gunter

Cuidly ) C OD, Dissent Ss aed ASSIGNS § Ca SOS.

Richard C. Dalton

Carencro, Louisiana

Eric M. Poulin, pro hac vice

Roy T. Wiley, IV, pro hac vice

Charleston, South Carolina

Jason P. Sultzer, pro hac vice

Jeremy Francis, pro hac vice

Poughkeepsie, New York

Melissa S. Weiner, pro hac vice

Wayzata, Minnesota

Hassan A. Zavareei, pro hac vice

Anna Haac, pro hac vice

Washington, D.C.

Michael A. Tompkins, pro hac vice

Jeffrey K. Brown, pro hac vice

Brett R. Cohen, pro hac vice

Carle Place, New York

Jeff Ostrow, pro hac vice

Jonathan Streisfeld, pro hac vice

Kristen Lake Cardoso, pro hac vice

Fort Lauderdale, Florida

Edward W. Ciolko, pro hac vice

New York, New York

kek RK SE

BEFORE: GUIDRY, C.J., CHUTZ, LANIER, WOLFE, AND STROMBERG, JJ.

Disposition; REVERSED AND REMANDED.

CHUTZ, J.

Defendant-appellant, the Board of Supervisors of Louisiana State University

and Agricultural and Mechanical College (LSU), appeals a trial court judgment

granting a motion for class certification on behalf of plaintiff-appellee, Taylor

Gunter. We reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On August 17, 2020, Taylor Gunter, individually and on behalf of all others

similarly situated, filed a class action petition against LSU.’ In her pleading,

Gunter sought reimbursement on her behalf as well as for other students for

benefits and services for which they paid but did not receive during the spring

2020 semester at LSU. Gunter averred that in the wake of the COVID-19

pandemic, LSU cancelled its in-person and on-campus educational services and

activities, placing the burden of the campus closures onto its students, requiring

them to pay the full amount of tuition and mandatory fees for in-person/on-campus

services and amenities. She claimed that, as a result, LSU breached its contract

with her and other similarly-situated students. According to her allegations,

members of the class (the putative plaintiffs) were both impacted and damaged by

LSU’s conduct.

LSU answered the lawsuit, generally denying the allegations set forth in

Gunter’s pleadings but admitted that in accordance with the Governor’s Executive

Order, LSU announced all classes would be moved to remote learning after spring

break, effective March 30, 2020. In its answer, LSU also raised affirmative

defenses including discretionary immunity. LSU also pointed out that students

were offered the opportunity to complete their Spring 2020 courses from the safety

' This lawsuit originated when Michael Miazza filed a separate lawsuit against LSU on June 5,

2020. Miazza’s and Gunter’s lawsuits were consolidated. On November 17, 2022, on Miazza’s

motion, his claims were dismissed without prejudice and he withdrew as a proposed class

representative.

of their homes and to receive credit for such courses. New grading options were

also provided to students in response to online learning, according to LSU, and

direct payments were provided to students under the federal government’s

Coronavirus Aid, Relief, and Economic Security Act. See Pub. L. No. 116-136,

134 Stat. 281 (2020).

Gunter subsequently filed a motion for certification of the class which LSU

opposed. A hearing was held on the motion on March 16, 2023. In a judgment

dated May 12, 2023, the trial court granted class certification, designated Gunter as

the class representative, and defined the class as: “All students who, as of March

13, 2020, were enrolled at Louisiana State University’s main campus in Baton

Rouge who paid Tuition and/or Fees for the Spring 2020 semester, or on whose

behalf such payment was made.” LSU suspensively appealed.

DISCUSSION

A class action is a nontraditional procedure permitting representatives with

typical claims to sue or defend on behalf of, and stand in judgment for, a class of

similarly situated persons when a question of law or fact is of common or general

interest to persons so numerous as to make it impracticable to bring them all before

the court. Price v. Martin, 2011-0853 (La. 12/6/11), 79 So.3d 960, 966. With

respect to the parties, the purpose and intent of the class action is to adjudicate and

obtain res judicata effect on all common issues applicable not only to the class

representatives who bring the action, but also to all others who are similarly

situated. Price, 79 So.3d at 966.

The determination of whether a class action meets the requirements imposed

by law requires a “rigorous analysis.” Dupree v. Lafayette Ins. Co., 2009-2602

(La. 11/30/10), 51 So.3d 673, 679 (quoting Brooks v. Union Pacific Railroad. Co.,

2008-2035 (La. 5/22/09), 13 So.3d 546, 554). Such an analysis requires the trial

court to evaluate, quantify, and weigh the relevant factors to determine to what

extent the class action would in each instance promote or detract from the goals of

effectuating substantive law, judicial efficiency, and individual fairness. Price, 79

So.3d at 966-967. Going beyond the pleadings is necessary, as a court must

understand the claims, defenses, relevant facts, and applicable substantive law in

order to make a meaningful determination of the certification issues. Dupree, 51

So.3d at 680.

The only issue to be considered by the trial court when ruling on

certification is whether the case at bar is one in which the procedural device is

appropriate. In determining the propriety of such action, the trial court is not

concerned with whether the plaintiffs have stated a cause of action or the

likelihood they ultimately will prevail on the merits, but whether the statutory

requirements have been met. Baker v. PHC-Minden, L.P., 2014-2243 (La. 5/5/15),

167 So.3d 528, 537.

The procedure for class certification is governed by La. C.C.P. art. 591.

Article 591(A) sets forth five threshold requirements that must be met and

provides:

One or more members of a class may sue or be sued as representative

parties on behalf of all, only if:

(1) The class is so numerous that joinder of all members is

impracticable.

(2) There are questions of law or fact common to the class.

(3) The claims or defenses of the representative parties are typical of

the claims or defenses of the class.

(4) The representative parties will fairly and adequately protect the

interests of the class.

(5) The class is or may be defined objectively in terms of

ascertainable criteria, such that the court may determine the

constituency of the class for purposes of the conclusiveness of any

judgment that may be rendered in the case. This prerequisite shall not

be satisfied if it is necessary for the court to inquire into the merits of

each potential class member’s cause of action to determine whether an

individual falls within the defined class.

Additionally, Article 591(B) lists three criteria of which only one need be

satisfied for certification depending on the type of class action sought. Pertinent for

purposes of our review, Subsection (B)(3) provides that an action may be

maintained as a class if the court finds that questions of law or fact common to the

members of the class predominate over any questions affecting only individual

members, and a class action is superior to other available methods for the fair and

efficient adjudication of the controversy.* Paragraph (C) cautions that class

“{clertification shall not be for the purpose of adjudicating claims or defenses

dependent for their resolution on proof individual to a member of the class.”

Nevertheless, where certification is maintained, “the court shall retain jurisdiction

? Paragraph (B) of Article 591 provides in full:

An action may be maintained as a class action only if all of the prerequisites of

Paragraph A of this Article are satisfied, and in addition:

(1) The prosecution of separate actions by or against individual members of the

class would create a risk of:

(a) Inconsistent or varying adjudications with respect to individual members of

the class which would establish incompatible standards of conduct for the party

opposing the class, or

(b) Adjudications with respect to individual members of the class which would as

a practical matter be dispositive of the interests of the other members not parties

to the adjudications or substantially impair or impede their ability to protect their

interests; or

(2) The party opposing the class has acted or refused to act on grounds generally

applicable to the class, thereby making appropriate final injunctive relief or

corresponding declaratory relief with respect to the class as a whole; or

(3) The court finds that the questions of law or fact common to the members of

the class predominate over any questions affecting only individual members, and

that a class action is superior to other available methods for the fair and efficient

adjudication of the controversy. The matters pertinent to these findings include:

(a) The interest of the members of the class in individually controlling the

prosecution or defense of separate actions;

(b) The extent and nature of any litigation concerning the controversy already

commenced by or against members of the class;

(c) The desirability or undesirability of concentrating the litigation in the

particular forum;

(d) The difficulties likely to be encountered in the management of a class action;

(e) The practical ability of individual class members to pursue their claims

without class certification;

(f) The extent to which the relief plausibly demanded on behalf of or against the

class, including the vindication of such public policies or legal rights as may be

implicated, justifies the costs and burdens of class litigation; or

(4) The parties to a settlement request certification under Subparagraph B(3) for

purposes of settlement, even though the requirements of Subparagraph B(3) might

not otherwise be met.

over claims or defenses dependent for their resolution on proof individual to a

member of the class.” La. C.C.P. art. $91(C).

In reviewing a judgment on class certification, the trial court’s factual

findings are subject to the manifest error standard,’ while its ultimate decision

regarding whether to certify the class is reviewed under the abuse of discretion

standard. Brooks v. Union Pac. R.R. Co., 2008-2035 (La. 5/22/09), 13 So.3d 546,

554. Whether the trial court applied the correct legal standard in determining

whether to certify the class is reviewed de novo. Brooks, 13 So.3d at 554. The

burden of proving the statutory class certification criteria have been satisfied falls

on the party seeking to maintain the class action. Dupree, 51 So.3d at 682.

Commonality requires a party seeking class certification to show that there

are questions of law or fact common to the class. See La. C.C.P. art. 591(A)(2).

However, the mere existence of common questions will not satisfy the

commonality requirement. A party seeking certification must demonstrate that the

class members’ claims depend on a common contention, and that common

contention must be one capable of class-wide resolution—one where the

“determination of its truth or falsity will resolve an issue that is central to the

validity of each one of the claims in one stroke.” Price, 79 So.3d at 969 (quoting

Wal-Mart Stores, Inc. v. Duke, 564 U.S. 338, 350, 131 S.Ct. 2541, 2551, 180

L.Ed.2d 374 (2011)). To satisfy the commonality requirement, there must exist as

to the totality of the issues a common nucleus of operative facts. Price, 79 So.3d at

969. When each member of the proposed class will necessarily have to offer

different facts to establish liability, the class will degenerate into a series of

3 Subject to the manifest error standard, the trial court’s factual findings can only be reversed

upon finding, based on the entire record, no reasonable factual basis for the factual finding and

the factfinder is clearly wrong. Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d

880, 882 (La. 1993); Baker, 167 So.3d at 538.

individual trials. See Alexander v. Norfolk S. Corp., 2011-2793 (La. 3/9/12), 82

So.3d 1234, 1235-1236 (per curiam).

It is undisputed that no written contract to provide an in-person and on-

campus experience existed between the putative plaintiffs and LSU. According to

Gunter’s theory of liability, an implied contract for an in-person education that

existed between the putative plaintiffs and LSU could be gleaned from catalogs,

bulletins, and website materials in the record.

Although the case law is sparse, Louisiana does recognize the common law

concept of implied contracts. Ettinger v. Greenleaf, 483 So.2d 1116, 1118 (La.

App. 5th Cir. 1986). An implied in fact contract is one that rests upon consent

which is implied from facts and circumstances showing a mutual intention to

contract. Such implied in fact contracts are not different in their legal effect from

express, written agreements. Morphy, Makofsky & Masson, Inc. v. Canal Place

2000, 538 So.2d 569, 573 (La. 1989).

It is axiomatic that a contract is formed by the consent of the parties

established through offer and acceptance. See La. C.C. art. 1927. Thus, an

enforceable contract requires a meeting of the minds. The existence or non-

existence of a contract is a question of fact, subject to the manifest error standard

of review. Medwick v. MADCON Corp., 2021-1620 (La. App. Ist Cir. 8/8/22),

348 So.3d 106, 113, writ denied, 2022-01352 (La. 11/16/22), 349 So.3d 991.

Whether a record contains sufficient evidence is a factual determination governed

by the manifest error standard. See e.g., Arias v. Stolthaven New Orleans, L.L.C.,

2008-1111 (La. 5/5/09), 9 So.3d 815, 818.

Insofar as her claim of an implied contract, Gunter identified twenty-six

pages of website printouts as evidence of her expectation of an in-person

education. Notably, these documents were identified solely with the College of Art

& Design which was the college through which Gunter was studying at the time of

8

the transition from in-person to online courses. The putative class, however,

purports to include students who attended all the various different schools on the

Baton Rouge campus, among which are law, veterinary medicine, graduate, and

undergraduate schools, including fifteen separate colleges. LSU’s Baton Rouge

schools and colleges have varying degree programs, curricula, services, fees,

catalogs, and other materials from which an implied contract with LSU to provide

particularized opportunities on campus must be found.

A multitude of individualized inquiries and proof make up the liability and

damages issues essential to the putative plaintiffs’ implied contract claims.

Relative to evidence of the parties’ consent necessary to support an implied

contract, these inquiries include, but are not limited to, which representations in

each school’s or college’s catalogs, bulletins, and website materials did the

putative plaintiff rely upon in developing his or her expectation and what particular

facilities and on-campus opportunities did a putative plaintiff expect to utilize;

whether the putative plaintiff has historically utilized on-campus facilities and

opportunities; which facilities and/or on-campus opportunities, if any, were

necessary for a particular school’s or college’s course completion; and whether a

putative plaintiff was satisfied with the online instruction, course credits received,

and grading options provided. Additionally, in light of the broad class definition

which does not advise a potential putative plaintiff of the need to have been

aggrieved by the transition to online class, whether a putative plaintiff actually

suffered any financial loss, mindful of each student’s particular situation, is another

individualized inquiry will have to be elicited from each putative plaintiff. Thus,

the record is devoid of sufficient evidence to support findings of offers and

acceptances necessary to find meetings of the mind and conclude each putative

plaintiff and LSU consented to an implied contract.

After review of the record, we conclude that any determination of liability

for an implied contract is dependent upon proof of facts individual to each putative

class member and, therefore, the class will degenerate into a series of individual

trials. This required individual analysis precludes class certification, because the

commonality requirement is not met. See Price, 79 So.3d at 969. Accordingly, the

trial court’s finding that Gunter established the requisite showing of commonality

is manifestly erroneous.

Because the trial court manifestly erred in determining plaintiffs satisfied the

commonality prerequisite of La. C.C.P. art. 591(A), we are compelled to conclude,

as the logical corollary to that finding, that substantive questions of law and fact

common to the class will not predominate over questions affecting only individual

members. Thus, we find that, as with the commonality determination and for the

same reasons, the trial court manifestly erred in determining the predominance

requirement was satisfied. See Price, 79 So.3d at 969. As such, the trial court’s

certification was an abuse of discretion, and the trial court’s Judgment is reversed.’

DECREE

For these reasons, the May 12, 2023 judgment of the trial court is reversed.

The matter is remanded to the trial court for further proceedings. Appeal costs are

assessed against plaintiff-appellee, Taylor Gunter.

REVERSED AND REMANDED.

* Although LSU challenged the trial court’s conclusions that Gunter established numerosity,

typicality, adequate representation, and objective definability so as to support class certification,

having found the trial court erred as to commonality and predominance, we pretermit review of

these findings.

10

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2023 CA 1149

MICHAEL MIAZZA, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS

SIMILARLY SITUATED

VERSUS

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND

AGRICULTURAL AND MECHANICAL COLLEGE

consolidated with

NUMBER 2023 CA 1150

TAYLOR GUNTER, ON BEHALF OF HERSELF AND OTHER INDIVIDUALS

SIMILARLY SITUATED

VERSUS

LOUISIANA STATE UNIVERSITY SYSTEM, AND OTHER AFFILIATED

ENTITIES AND INDIVIDUALS MARY L. WERNER, ROBERT S. DAMPF,

JAMES M. WILLIAMS, RONALD R. ANDERSON, LEE MALLETT,

RICHARD E. ZUSCHLAG, JACK A. BLOSSMAN, REMY VOISIN STARNS,

JIMMIE M. WOODS, GLENN ARMENTOR, VALENCIA S. JONES, B.

WAYNE BROWN, PATRICK C. MORROW, RAYMOND R. MORRIS AND

COLLIS B. TEMPLE

GUIDRY, C.J., dissents and assigns reasons. AUG 09 2024

2/ cupry. C.J., dissenting.

I respectfully disagree with the majority decision reversing the trial court’s

class certification of this matter.

The plaintiff herein contends the proposed class is presenting a claim for

breach of contract with economic injury caused to students who paid for in-person

classes not received as a result of the COVID-19 pandemic. As argued by the

plaintiff, the class members are aggrieved because they did not receive what they

bargained for—an in-person educational experience.' Evidence identifies every

student enrolled in LSU’s Baton Rouge main campus during the Spring 2020

semester, those enrolled in “brick and mortar classes.” In addition, testimony shows

and there is no dispute that the Baton Rouge main campus closed during the spring

semester. Thereafter, main campus students transitioned entirely to online learning,

generally without receiving any pro-rata refund.

The defendant argues that the plaintiff failed to meet her burden of proof as to

the numerosity and ascertainability requirements of La. C.C.P. art. 591(A). I

disagree. Louisiana courts have found definable groups of aggrieved individuals

where, for example, documents established known individuals who were potentially

damaged by a gas well blowout, see Singleton v. Northfield Insurance Company,

01-0447, pp. 11-12 (La. App. Ist Cir. 5/15/02), 826 So. 2d 55, 63, writ denied, 02-

1660 (La. 9/30/02), 825 So. 2d 1200, and where the class members were easily

identifiable because they were surgically implanted with a contraceptive device, see

Davis v. American Home Products Corporation, 02-0942, p. 20 (La. App. 4th Cir.

3/26/03), 844 So. 2d 242, 257-258, writ denied, 03-1180 (La. 6/27/03), 847 So. 2d

1279.

The class definition herein links LSU’s campus closure (the defendant’s

conduct) to the plaintiff's and the class’ claim for damages. The definition also

identifies a class member as a student enrolled at the main campus in Baton Rouge

| In Jones v. Administrators of Tulane Educational Fund, 51 F.4th 101, 113 (Sth Cir. 2022), the

Fifth Circuit found that students plausibly alleged an implied contract for in-person instruction and

on-campus facilities in exchange for tuition and fees, so as to state a claim under Louisiana law

for breach of contract arising from the university’s switch to off-campus learning during the

COVID-19 pandemic.

2 The evidence includes a spreadsheet, LSU’s own data, which delineates between online program

students and traditional/brick and mortar students, who are identified herein as “main campus”

students.

during the Spring 2020 semester, potentially over 26,000 students.? Contrary to the

defendant’s contentions, the class has been objectively defined in clear terms, and

potential claimants are sufficiently alerted to the fact that he or she may be a member

of the class. See Smith v. City of New Orleans, 13-0802, p. 10 (La. App. 4th Cir.

12/23/13), 131 So. 3d 511, 518, writ denied, 14-0173 (La. 4/4/14), 135 So. 3d 644,

and writ denied, 14-0174 (La. 4/4/14), 135 So. 3d 645. Joinder seems

impracticable—if not for the sheer number of potential class members alone, but

also due to the fact that class members, many of which may no longer be students at

LSU, would be required to appear at trial to provide what is very likely repetitive

testimony. These factors weigh in favor of class certification.

As it concerns the commonality prerequisite, the record demonstrates that this

matter is fairly straightforward in a factual sense considering the potentially large

number of plaintiffs. Each of the plaintiffs will have been economically injured,

allegedly, after enrolling in the Baton Rouge main campus during the Spring 2020

semester.’ Prior to the campus closure, each will have taken a certain number of in-

person courses and will have paid tuition and fees. After the campus closure, the

plaintiffs would have transitioned exclusively to online learning. The plaintiffs

would have also lost access to in-person or on-campus instruction, services, and

facilities.>

3 Specifically, the class was defined as: “All students who, as of March 13, 2020, were enrolled at

Louisiana State University’s main campus in Baton Rouge who paid Tuition and/or Fees for the

Spring 2020 semester, or on whose behalf such payment was made.”

4 According to the plaintiff's expert, economic injury and aggregate damages for in-person/on-

campus services not received can be determined, including by utilizing as one method, for

example, LSU’s own reduction in tuition and fees for its Spring Intersession 2020, Summer 2020,

and Summer Intersession 2020.

> Regardless of students’ subjective expectations as to instruction and the use of campus services,

objectively each class member would have paid for in-person instruction and/or on-campus

services and would have lost access to that type of instruction and those services on the date of the

campus closure.

While not every plaintiff will have registered for or taken the same number of

in-person courses, the mere fact that varying degrees of damages may result from

the same factual transaction and same legal relationship or that class members must

individually prove their right to recover does not preclude class certification. See

Bartlett v. Browning-Ferris Industries Chemical Services, Inc., 99-0494, p. 3 (La.

11/12/99), 759 So. 2d 755, 756; Schexnayder v. Entergy Louisiana, Inc., 04-636, pp.

14-15 (La. App. 5th Cir. 3/29/05), 899 So. 2d 107, 118, writ denied, 05-1255 (La.

12/9/05), 916 So. 2d 1058. Importantly here, each claim shares a common issue that

is central to the validity of all the claims—whether LSU breached an implied

contract with its main campus students to provide in-person instruction.°

The defendant argues that there are multiple and different implied contracts

across its various colleges and schools. There appears, however, to be no dispute

that main campus course registration for the subject Spring 2020 semester (across

the colleges and schools) generally included registration for in-person instruction,

showing building names and room numbers.’ Moreover, whether an implied

contract exists for any class member is a matter to be fleshed out in discovery and/or

at trial. See generally Smith, 13-0802 at p. 10, 131 So. 3d at 518 (stating that with

regard to the viability of a claim, a certification hearing is not the appropriate venue

to determine the merits of the case). Ultimately, if trier-of-fact finds that an implied

contract was indeed breached (a common contention), then it would follow that all

class members are entitled to a pro-rata refund or to be otherwise compensated (a

class-wide resolution).

6 A review of a plaintiff's individual student record is unnecessary to determine whether any

contract was breached in this matter.

7 As stated in Guidry v. Our Lady of the Lake Nurse Anesthesia Program through Our Lady of the

Lake College, 14-0461, p. 6 (La. App. Ist Cir. 1/29/15), 170 So. 3d 209, 213, a course catalog may

support a breach of contract claim.

Mindful of the fact that the court may alter, amend, or recall its initial ruling

on certification, and may enlarge, restrict, or otherwise redefine the constituency of

the class or the issues to be maintained in the class action at any time before a

decision on the merits of the common issues, see La. C.C.P. art. 592(A)(3)(d), I

cannot say the trial court was clearly wrong in finding that the claims of the potential

class members have common character and are derived from a common nucleus of

operative facts.®

Further, based upon plaintiff Gunter’s claims and injury” as well as her active

participation in this case and willingness to appear personally on behalf of the class,

I would conclude that the typicality requirement is met and that plaintiff Gunter has

an interest in the outcome of this case. The test for typicality is not a demanding

one, see Conrad v. Lamarque Ford, Inc., 08-673, p. 18 (La. App. 5th Cir. 5/12/09),

13 So. 3d 1154, 1165, writ denied, 09-1819 (La. 11/6/09), 21 So. 3d 310, and I would

decline to extend the requirements for adequacy beyond the factors described in

Baker v. PHC-Minden, L.P., 14-2243, p. 22 (La. 5/5/15), 167 So. 3d 528, 543-544,!°

8 1 also note that Louisiana courts are given vast discretion and may order a trial in phases of

common issues and individual issues to alleviate the claims that a class action is unworkable.

Claborne v. Housing Authority of New Orleans, 14-1050, p. 20 (La. App. 4th Cir. 4/15/15), 165

So. 3d 268, 285, writ denied, 176 So. 3d 1039 (La. 2015).

° The trial court found that plaintiff Gunter enrolled in five classes as an undergraduate student at

LSU for the Spring 2020 semester, with Gunter presenting evidence showing the courses were

scheduled to be in-person and on-campus. The trial court also found that Gunter made

arrangements to pay her cost of attendance by taking out student loans, in addition to receiving

exemptions and awards. I find no clear error in the trial court’s conclusions. In addition, I note

that plaintiff Gunter’s expert calculated damages for her and estimated they would be between

$437-$933.

10 The following factors “may be relevant” in determining the adequacy requirement: (1) the

representative must be able to demonstrate that he or she suffered an actual as opposed to a

hypothetical injury; (2) the representative should possess first-hand knowledge or experience of

the conduct at issue in the litigation; (3) the representative’s stake in the litigation should be

significant enough, relative to that of other class members, to ensure that representative’s

conscientious participation in the litigation; and (4) the representative should not have interests

seriously antagonistic to or in direct conflict with those of other class members. Baker, 14-2243

at p. 22, 167 So. 3d at 543-544. In addition, the representatives’ claims need not exhibit all of the

various types of possible injuries or elements of damages claimed by the class as a whole. Boyd

v. Allied Signal, Inc., 03-1840, p. 25 (La. App. Ist Cir. 12/30/04), 898 So. 2d 450, 464-465, writ

denied, 05-0191 (La. 4/1/05), 897 So. 2d 606.

The overriding, common issue that predominates in this case is whether a

contract promising in-person, on-campus services existed between LSU and its

students, and if so, whether LSU breached that contract when it closed its campus

and transitioned to remote learning without providing pro-rata refunds to its main

campus students. Once a factfinder decides this single and paramount issue, liability

for each of the class members will be resolved, across the class. Furthermore, as

expressed above and in accordance with La. C.C.P. art. 591(C), the fact that varying

degrees of damages may result from the same factual transaction and same legal

relationship does not preclude class certification. See Baker, 14-2243 at p. 13, 167

So. 3d at 539. It is well established that individual questions of quantum do not

preclude a class action when predominant liability issues are common to the class.

McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So. 2d 612, 620

(La. 1984).

As a general rule, any errors to be made in deciding class action issues should

be in favor of and not against the maintenance of the class action, because a class

certification is always subject to modification or decertification iflater developments

during the course of the trial so require. See La. C.C.P. art. 592(A)(3)(d); Baker,

14-2243 at p. 11, 67 So. 3d at 537 (emphasis in original). In determining the

propriety of a class action, the court is not concerned with whether the plaintiffs have

stated a cause of action or the likelihood they ultimately will prevail on the merits,

but whether the statutory requirements have been met.'! Baker, 14-2243 at p. 10,

167 So. 3d at 537. Whether a class has a valid claim will be hashed out at trial. A

certification hearing is not the appropriate venue to decide the merits of the case or

the defenses asserted. A certification hearing does not determine liability. Smith,

13-0802 at p. 10, 131 So. 3d at 518.

'1 The only issue to be considered by the trial court when ruling on certification, and by this court

on review, is whether the case at bar is one in which the procedural device is appropriate. Baker,

14-2243 at p. 10, 167 So. 3d at 537.

For these reasons, considering the record as a whole, I would find no manifest

error in the trial court’s factual determinations and no abuse of discretion in the trial

court’s certification of the class action.