Opinion
NO. 2016 CW 1380
05-12-2017
DELOITTE TAX LLP v. AMEDISYS, INC. (A DELAWARE CORPORATION), ET AL.
In Re: Deloite Tax LLP, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 648095. BEFORE: GUIDRY, WELCH, CRAIN, THERIOT AND HOLDRIDGE, JJ.
WRIT GRANTED. Each of the engagement agreements for the years 2006 through 2014 contain a "forum selection clause" requiring actions arising thereunder to be brought in New York County in the State of New York, a "choice of law clause" requiring the application of the laws of the State of New York, and a "limitations on actions clause" providing that no action relating to the engagement may be brought by either party more than one year after the cause has occurred. In this Accounting Review Panel proceeding instituted pursuant to Louisiana Revised Statutes 37:101 et. seq., the district court overruled the exception of prescription urged by Deloitte Tax, L.L.P. We find that the choice of law clause is not contrary to the public policy of Louisiana and is enforceable. We find support for this conclusion in the fact that while the legislature recognized significant public interests in enacting the Accountants Review Act, the Act permits binding arbitration as an alternative method for resolving a dispute and expressly allows the provisions of the Accounting Review Panel to be waived. Under the limitation on actions clauses of the agreements and the application of New York law, the claims asserted by Amedisys, Inc. have prescribed. The district court's judgment overruling the exception of prescription is reversed, the exception is sustained, and the Accounting Review Panel proceeding is dissolved.
JEW
WJC
JMG
Theriot, J., dissents and would deny the writ. I recognize the Louisiana Accountancy Act, La. R.S. 37:71, et seq., does permit individuals to opt-out of the public accountant review panel process by entering into binding arbitration and does permit individuals to waive the use of the public accountant review panel process by written agreement. See La. R.S. 37:102(A) and 107. These provisions simply establish procedural limitations on the public accountant review panel process, which, contrary to the conclusion reached by the majority, does not necessarily indicate that the parties are permitted to opt-out of the substantive provisions of the Act or apply the substantive law of a foreign sovereign. While the parties to a contract are in principle free to choose the law of any state, that the choice of law forum selection clauses found in the service engagement agreements entered into by the parties were contrary to the public policy of the state of Louisiana and thus unenforceable. See generally Barnett v. Am. Const. Hoist, Inc., 11-1261 (La. App. 1 Cir. 2/10/12), 91 So.3d 345, 349-50 (concluding that the public policy of Louisiana would be defeated by the application of foreign law in light of the particular facts presented in that particular indemnity dispute)
Holdridge, J., I respectfully dissent for the reasons assigned by Judge Theriot. I further add that this matter should have been set for briefing and oral argument. From the record before us, it appears that the defendant may have waived any objection to the forum. The trial court was correct in finding that the limitations on actions clause as well as the choice of law clause may be against public policy since a claim may be prescribed even if the out-of-state accountant engaged in fraudulent behavior and concealed the malpractice for over one year. While the act allows for binding arbitration or that the review process may be waived, it does not allow for a waiver of the prescriptive or preemptive period which was enacted to protect both the public as well as the accountant. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT