I agree with the lead opinion that an affirmation is warranted in this case, and I concur in the result. However, Plaintiffs appropriately focus on Cheramie Services, Inc. v. Shell Deepwater Production, 09-1633 (La. 4/23/10), 35 So.3d 1053 in addressing whether they have stated a right of action under LUTPA, La.R.S. 51:1401, et seq. Justice Weimer (now Chief Justice), authoring the lead opinion in Cheramie Services, recognized that earlier circuit opinions had determined that LUTPA is limited to business competitors and consumers. While not referenced by the supreme court, the case relied upon by the trial court in this case, Vermilion Hospital, Inc. v. Patout, 05-82 (La.App. 3 Cir. 6/08/05), 906 So.2d 688, is one such case. The holding in Vermilion Hospital was arguably repudiated in Cheramie Services.
Justice Weimer further explained in Cheramie Services that:
Based on the language of the statute, which does not contain a clear, unequivocal and affirmative expression that the private right of action provided in LSA-R.S. 51:1409(A) extends only to business competitors and consumers, LUTPA does not exclude other persons who assert a ‘loss of money or ․ property ․ as a result of the use or employment of by another person of an unfair or deceptive method, act, or practice.
Cheramie Services, 35 So.3d at 1058. Moreover, Justice Weimer stated that “[c]ontrary holdings are hereby repudiated, because limitation must be contained in the language of the statute.” Id.
As emphasized by the Sasol defendants, Justice Weimer was writing for a plurality in Cheramie Services, not the majority. Regardless, the guidance offered therein cannot be overlooked in evaluating the continued persuasiveness of this circuits earlier jurisprudence indicating that a plaintiff could only maintain a LUTPA claim if the plaintiff was either a consumer of the defendants product or a direct competitor. See, e.g., Vermilion Hosp., 906 So.2d 688.
Plaintiffs suggest that Cheramie Services’s more expansive view of the right of action provided by LUTPA indicates that they have “standing” to bring the suit against the Sasol defendants. But Justice Weimer further stated in Cheramie Services, 35 So.3d at 1058 that “[a]lthough LUTPA is available to plaintiffs other than business competitors and consumers, a plaintiffs burden of proving an unfair or deceptive method, act, or practice on the part of a defendant is not lessened by th[at] opinion.” On this point, while La.R.S. 51:1405(A) prohibits any “unfair or deceptive acts or practices in the conduct of any trade or commerce,” “it has been left to the courts to decide on a case-by-case basis, what conduct falls within the statutes prohibition.” Id. at 1059. Moreover, “ ‘[t]he courts have repeatedly held that, under this statute, the plaintiff must show that the alleged conduct ‘offends established public policy and ․ is immoral, unethical, oppressive, unscrupulous, or substantially injurious.’ ” Id. at 1059 (quoting Moore v. Goodyear Tire & Rubber Co., 364 So.2d 630, 633 (La.App. 2 Cir. 1978)). “[O]nly egregious actions involving elements of fraud, misrepresentations, deception, or other unethical conduct will be sanctioned based on LUTPA.” Id. at 1060. See also Caldwell Wholesale Co., L.L.C. v. R.J. Reynolds Tobacco Co., No. 17-0200 , 2018 WL 2209165 (W.D. La. May 11, 2018), affd, 781 Fed.Appx. 289 (5th Cir. 2019). That range of prohibited practices is “extremely narrow[.]” Cheramie, 35 So.3d at 1060. See also J.A. Davis Props., LLC v. Martin Operating Pship, LP, 17-449 (La.App. 3 Cir. 6/21/17), 224 So.3d 39.
Regardless of the right of action identified in Cheramie Services, it is on this latter basis that I believe that the lead opinion correctly identifies that Plaintiffs fail to state a cause of action under LUTPA against the Sasol defendants. Justice Weimer explained in Cheramie Services that LUTPA requires “egregious” actions. While Plaintiffs’ petition sets forth facts alleging a “kickback scheme” in an attempt to recover under LUTPA, Plaintiffs do not allege specific facts indicating that the Sasol defendants, themselves, perpetrated that scheme. Outside of merely conclusory allegations of Sasol having carried out a systematic plan of kickbacks, Plaintiffs only more particularly allege that the Sasol defendants learned of the scheme, and, in turn, Sasol failed to remedy the scheme and failed to honor alleged general representations to the community at large of favoring local companies for work on the construction project.
As recognized by both the trial court and the lead opinion, however, Sasol had no privity of contract with Plaintiffs, an element that distinguishes this matter, at least in some part, from Cheramie Services, a case in which the plaintiff and defendant shared a contractual relationship. In this case, Sasol had a “turnkey contract” for construction of the plant with Fluor Technip Integrated and had no contractual relationship with Plaintiffs. Under these facts, and given the attenuated nature of the Plaintiffs’ relationship with the Sasol defendants, I find that Plaintiffs have failed to state a cause of action against the Sasol defendants under LUTPA. Rather, the factual allegations as to the Sasol defendants’ conduct is not of such a fraudulent or deceptive nature that a LUTPA claim can be maintained against them. It is also noted that this case has been pending since June 2016. There has been more than enough time for discovery, and Plaintiffs have failed to file supplemental and/or amending petitions to allege any specific facts to state a lawful cause of action as to Sasol. I therefore join in the affirmation of the dismissal of the LUTPA claim against the Sasol defendants under the specific facts of this case.
CONERY, Judge, concurring in the result.