APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT,
ORLEANS PARISH NO. 2016-00905, DIVISION "I-14"
Honorable Piper D. Griffin, Judge
M. Garner Timothy B. Francis Matthew M. Coman Michael R.
Dodson SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C.
COUNSEL FOR DEFENDANTS/RELATORS
Middleberg Yvette A. D'Aunoy Marianne Garvey MIDDLEBERG
RIDDLE GROUP COUNSEL FOR PLAINTIFFS/RESPONDENTS
composed of Chief Judge James F. McKay III, Judge Terri F.
Love, Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge
Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Rosemary
Ledet, Judge Sandra Cabrina Jenkins, Judge Regina
Bartholomew-Woods, Judge Paula A. Brown, Judge Tiffany G.
Chase, Judge Dennis R. Bagneris,  Pro Tempore
F. LOVE JUDGE
application for supervisory review arises from petitions
filed by cab drivers against Uber drivers alleging violations
of the Louisiana Unfair Trade Practices Act. Following
supplementation of the original petition, the Uber drivers
filed an exception of no cause of action, which the trial
court denied. The Uber drivers sought our supervisory review.
This Court denied the writ, and the Uber drivers sought
review from the Louisiana Supreme Court. The Supreme Court
remanded the matter for full briefing, oral argument, and
Court considered the matter en banc and finds that
the trial court did not err by denying the Uber drivers'
exception of no cause of action because the cab drivers set
forth a cause of action. Thus, the application for
supervisory review is denied.
BACKGROUND AND PROCEDURAL HISTORY
of cab drivers ("Cabbies") filed a Petition Based
Upon Unfair Trade Practices, Request for Class Certification
and Request for Injunctive Relief against a group of Uber
drivers ("Ubers") alleging that they were operating
in violation of the Louisiana Unfair Trade Practices Act
("LUTPA"). The Cabbies contended that the
Ubers' violations of the Louisiana Motor Vehicle Safety
Law, the Louisiana Driver's License Law, and other
municipal ordinances constituted unfair trade practices.
Ubers filed Exceptions of No Cause of Action and No Right of
Action. The trial court granted the Exception of No Cause of
Action as to the Cabbies' LUTPA claims, but denied the
Exception of No Right of Action regarding the alleged
violations of the Louisiana Driver's License Law. This
Court and the Louisiana Supreme Court denied writs on that
judgment. Green v. Garcia-Victor, 16-0447, unpub.
(La.App. 4 Cir. 5/31/16), writ denied, 16-1249 (La.
10/28/16), 208 So.3d 379.
Cabbies filed a First Supplemental and Amended Petition
asserting additional violations of municipal ordinances to
establish liability pursuant to LUTPA. The Cabbies then
filed a Second Amending, Supplemental and Restated Petition
alleging that the Ubers performed the same work as the
Cabbies, who have commercial driver's licenses, but were
not subject to the same regulatory requirements, which
resulted in disparate treatment by the City of New Orleans.
The Cabbies contended that the Ubers: (1) accepted passengers
for cash without the Uber app; (2) staged and used cab
stands; (3) accepted fares to and from the airport without
authorization; (4) failed to notify Uber (the Transportation
Network Company "TNC") and its insurer of
accidents; (5) transported passengers without a
chauffeur's license; and (6) prohibited cabs from picking
up and dropping off customers at the Voodoo Experience Music
Festival. The Cabbies further asserted that the Ubers were
engaging in illegally providing transportation services for
hire, and that their non-compliance with state regulatory
rules resulted in unfair competition pursuant to LUTPA.
Moreover, the Cabbies averred that they "suffered an
ascertainable loss of money or movable property, corporeal or
incorporeal, as a result of the use or employment by
Defendants of an unfair and unlawful trade practice in
violation of Louisiana Revised Statute §51:1405."
They asserted that they suffered "harm, injuries, and
damages, including loss of income, relevant market share,
business reputation, goodwill, and attorneys' fees and
costs." The Cabbies also alleged the following class of
defendants, for purposes of class action: "All UberX
drivers operating in New Orleans during the time of April 16,
2015 through the present."
the Ubers filed an Exception of No Cause of Action regarding
the Second Amending, Supplemental and Restated Petition. The
trial court denied the exception and stated the petition, as
written, sufficiently stated a cause of action. The Ubers
sought supervisory review from this Court. This Court denied
writs. Green v. Garcia-Victor, 17-0695, unpub.
(La.App. 4 Cir. 11/13/17). The Louisiana Supreme Court
granted writs and remanded the matter "for briefing,
argument, and full opinion." Green v.
Garcia-Victor, 17-2071 (La. 02/02/18). This Court heard
the matter en banc on April 18, 2018.
of law are reviewed by the appellate court under the de
novo standard of review." Cosey on behalf of
Hilliard v. Flight Acad. of New Orleans, LLC, 17-0364,
p. 3 (La.App. 4 Cir. 10/25/17), __So. 3d__, __, 2017 WL
4803829, *3. "Exceptions of no cause of action present
legal questions, which are reviewed using the de
novo standard of review." O'Dwyer v.
Edwards, 08-1492, p. 3 (La.App. 4 Cir. 6/10/09), 15
So.3d 308, 310.
CAUSE OF ACTION
exception is a means of defense, other than a denial or
avoidance of the demand, used by the defendant, whether in
the principal or an incidental action, to retard, dismiss, or
defeat the demand brought against him." La. C.C.P. art.
921. An exception of no cause of action is a peremptory
exception. La. C.C.P. art. 927(A). "The function of the
peremptory exception is to have the plaintiff's action
declared legally nonexistent, or barred by effect of law, and
hence this exception tends to dismiss or defeat the
action." La. C.C.P. art. 923. "On the trial of the
peremptory exception pleaded at or prior to the trial of the
case, evidence may be introduced to support or controvert any
of the objections pleaded, when the grounds thereof do not
appear from the petition." La. C.C.P. art. 931. However,
"[n]o evidence may be introduced at any time to support
or controvert the objection that the petition fails to state
a cause of action." La. C.C.P. art. 931. "The
burden of demonstrating that the petition states no cause of
action is upon the mover." 831 Bartholomew
Investments-A, L.L.C. v. Margulis, 08-0559, p. 10
(La.App. 4 Cir. 9/2/09), 20 So.3d 532, 538.
questioned [sic] posed by an exception of no cause of action
is "whether the law provides a remedy against the
particular defendant.'" 2400 Canal, LLC v. Bd.
of Sup'rs of Louisiana State Univ. Agr. & Mech.
Coll., 12-0220, pp. 6-7 (La.App. 4 Cir. 11/7/12), 105
So.3d 819, 825, quoting Badeaux v. Southwest Computer
Bureau, Inc., 05-0612, 05-0719, p. 7 (La. 3/17/06), 929
So.2d 1211, 1216-17. "An exception of no cause of action
tests "the legal sufficiency of the petition by
determining whether the law affords a remedy on the facts
alleged in the pleading.'" Moreno v. Entergy
Corp., 10-2281, p. 3 (La. 2/18/11), 62 So.3d 704, 706,
quoting Everything on Wheels Subaru, Inc. v. Subaru
South, Inc., 616 So.2d 1234, 1235 (La. 1993).
"In deciding an exception of no cause of action a court
can consider only the petition, any amendments to the
petition, and any documents attached to the petition."
2400 Canal, LLC, 12-0220, p. 7, 105 So.3d at 825.
"A court cannot consider assertions of fact referred to
by the various counsel in their briefs that are not pled in
the petition." Id. "The grant of the
exception of no cause of action is proper when, assuming all
well pleaded factual allegations of the petition and any
annexed documents are true, the plaintiff is not entitled to
the relief he seeks as a matter of law." Id.
Further, "any doubt must be resolved in the
plaintiffs' favor." Id.
has chosen a system of fact pleading." 831
Bartholomew, 08-0559, p. 9, 20 So.3d at 538.
"Therefore, it is not necessary for a plaintiff to plead
the theory of his case in the petition." Id.,
08-0559, pp. 9-10, 20 So.3d at 538. "However, the mere
conclusions of the plaintiff unsupported by facts does [sic]
not set forth a cause of action." Id., 08-0559,
p. 10, 20 So.3d at 538.
Louisiana Supreme Court reiterated the limitations placed
upon the courts when reviewing a trial court's ruling on
an exception of no cause of action. "The
limited function of an exception of no cause
of action is to determine whether the law provides a remedy
to anyone assuming that the facts plead in the petition will
be proven at trial. In making that limited determination,
'all doubts are resolved in plaintiff's
favor.'" Farmco, Inc. v. W. Baton Rouge Par.
Governing Council, 01-1086, p. 1 (La. 6/15/01), 789
So.2d 568, 569, quoting 1 Frank L. Maraist & Harry T.
Lemmon, Louisiana Civil Law Treatise: Civil
Procedure § 6.7(2)(1999) (emphasis added).
"Unfair Trade Practices and Consumer Protection
Law" provides that "[u]nfair methods of competition
and unfair or deceptive acts or practices in the conduct of
any trade or commerce are hereby declared unlawful." La.
R.S. 51:1405(A). La. R.S. 51:1409(A) provides, in pertinent
Any person who suffers any ascertainable loss of money or
movable property, corporeal or incorporeal, as a result of
the use or employment by another person of an unfair or
deceptive method, act, or practice declared unlawful by R.S.
51:1405, may bring an action individually but not in a
representative capacity to recover actual damages.
of the broad sweep of this language, 'Louisiana courts
determine what is a LUTPA violation on a case-by-case
basis.'" Quality Envtl. Processes, Inc. v. I.P.
Petroleum Co., Inc., 13-1582, p. 21 (La. 5/7/14), 144
So.3d 1011, 1025, quoting Keith E. Andrews, Comment,
Louisiana Unfair Trade Practices Act: Broad Language and
Generous Remedies Supplemented by a Confusing Body of Case
Law, 41 Loy. L.Rev. 759, 762 (1996). The Louisiana
Supreme Court "has consistently held that in
establishing a LUTPA claim, a plaintiff must show that
'the alleged conduct offends established public policy
and is immoral, unethical, oppressive, unscrupulous, or
substantially injurious.'" Quality Envtl.
Processes, 13-1582, p. 21, 144 So.3d at 1025, quoting
Cheramie Services, Inc. v. Shell Deepwater Prod.,
09-1633, p. 10 (La. 4/23/10), 35 So.3d 1053, 1059.
"[T]he range of prohibited practices under LUTPA is
extremely narrow." Cheramie, 09-1633, p. 11, 35
So.3d at 1060. "LUTPA prohibits only fraud,
misrepresentation, and similar conduct, and not mere
negligence." Quality Envtl. Processes, 13-1582,
p. 21, 144 So.3d at 1025.
provides a cause of action both for trade practices which are
'unfair' and those which are
'deceptive.'" Jefferson v. Chevron U.S.A.
Inc., 97-2436, p. 13 (La.App. 4 Cir. 5/20/98), 713 So.2d
785, 792. "An act is not required to be both unfair and
deceptive." Id. "A practice is unfair when
it offends established public policy and when the practice is
unethical, oppressive, unscrupulous, or substantially
injurious." Id. "A trade practice is
'deceptive' for purposes of LUTPA when it amounts to
fraud, deceit or misrepresentation." Id.,
97-2436, p. 13, 713 So.2d at 793. "LUTPA does not
prohibit sound business practices, the exercise of
permissible business judgment or appropriate free enterprise
transactions." 831 Bartholomew, 08-0559, p. 11,
20 So.3d at 539. "The LUTPA has not been construed as
forbidding 'a business to do what everyone knows a
business must do: make money. Businesses in Louisiana are
still free to pursue profit, even at the expense of
competitors, so long as the means used are not
egregious.'" JCD Mktg. Co. v. Bass Hotels &
Resorts, Inc., 01-1096, p. 13 (La.App. 4 Cir. 3/6/02),
812 So.2d 834, 842, quoting Turner v. Purina Mills,
Inc., 989 F.2d 1419, 1422 (5th Cir. 1993).
LUTPA CAUSE OF ACTION AGAINST UBERS
Ubers contend that the trial court erred because the Cabbies
"failed to allege facts establishing that any individual
plaintiff suffered any damages as a result of any specific
act by any individual defendant" and "because
alleged actions by Defendants do not violate any law."
The Ubers also maintain that "each individual defective
cause of action . . . is based on a separate transaction or
occurrence" and should be dismissed.
Cabbies have asserted that they have a cause of action
pursuant to LUTPA through the Ubers' actions in violating
city ordinances and state regulations. The Cabbies assert
that various Ubers violated the following ordinances and
regulations: (1) Ordinance Article XV, Sec. 162-1724, which
prohibits accepting passengers for cash without the UBER app,
i.e., street hails; (2)
Ordinance Article XV, Sec. 162-1735, which prohibits staging
and using cab stands; (3) Ordinance Article XV, Sec.
162-1735, which prohibits accepting fares to and from the
airport without authorization; (4) Ordinance Article XV, Sec.
162-1715, which requires all TNC vehicles to be inspected
annually by a state certified mechanic; (5) Ordinance Article
XV, Sec. 162-1713, which requires notification to the TNC and
its insurer of accidents and undergoing a drug test within
twenty-four hours after an accident; (6) Ordinance Article
VII, Sec. 150-985, which concerns the payment of occupational
license fees and taxes; (7) La. R.S. 32:402 et seq., the
driver's license statute; and (8) La. R.S. 32:861, the