No. _____________

In The United States Court Of Appeals for the Fifth Circuit

ROGER J. LEBLANC, KAREN M. DAVIS, and ASHLEY GUILLORY Individually and on behalf of all others similarly situated,

PETITIONER PLAINTIFFS

V.

EXXON MOBIL CORPORATION

RESPONDENT DEFENDANT

On Petition for Appeal from the United States District Court Middle District of Louisiana No. 14-cv-201 c/w 14-cv-218

PETITION FOR PERMISSION TO APPEAL

Charles F. Zimmer, II C.F. Zimmer, LLC

John H Smith

Loren D. Shanklin Alicia Sosa

Smith Shanklin Sosa, L.L.C.

Eric J. O’Bell O’Bell Law Firm, L.L.C.

Daniel E. Becnel, Jr.

Salvadore Christina, Jr. Becnel Law Firm, LLC

Paul M. Brannon

Brannon Law Firm, L.L.C.

Attorneys for Petitioner-Plaintiffs

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed

persons and entities as described in the fourth sentence of Rule 28.2.1

have an interest in the outcome of this case. These representations are

made in order that the Judges of this Court may evaluate possible

disqualifications or recusal.

Roger J. Leblanc Karen M. Davis Ashley Guillory Charles F. Zimmer, II C.F. Zimmer, LLC 9213 Rosecrest Lane River Ridge, Louisiana 70123 Eric J. O’Bell (La #26693) O’Bell Law Firm, L.L.C. 3500 N. Hullen Street Metairie, Louisiana 70002 John H Smith Loren D. Shanklin Alicia Sosa Smith Shanklin Sosa, L.L.C. 16851 Jefferson Hwy, Suite 5A Baton Rouge, LA 70817

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Paul M. Brannon Brannon Law Firm, L.L.C. 4916 Lake Como Avenue Metairie, Louisiana 70006 Daniel E. Becnel Jr. (2926) Salvadore Christina, Jr. (27198) Becnel Law Firm LLC P. O. Drawer H Reserve, LA 70084 Angela M. Spivey McGuireWoods LLP 1230 Peachtree Street, NE Promenade, Suite 2100 Atlanta, Georgia 30309-3534 Ronald G. Franklin Kelly Beth Hapgood McGuireWoods LLP 600 Travis Street Suite 7500 Houston, Texas 77002 James C. Percy William D. Lampton Jones Walker LLP 8555 United Plaza Blvd., 5th Floor Baton Rouge, Louisiana 70809

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TABLE OF CONTENTS I. ISSUES PRESENTED ................................................................... - 1 -

II. STATEMENT OF JURISDICTION ............................................... - 1 -

III. STANDARD OF REVIEW ............................................................. - 2 -

IV. REASONS TO GRANT THE PETITION FOR PERMISSION TO

APPEAL .......................................................................................... - 2 -

V. STATEMENT OF THE CASE ....................................................... - 7 -

A. STATEMENT OF FACTS .................................................................... - 7 -

B. PROCEEDINGS AND DISPOSITION BELOW ...................................... - 13 -

VI. LAW AND ARGUMENT ...............................................................- 15 -

A. THE REASONABLE PERSON STANDARD ......................................... - 15 -

VII. CONCLUSION ...........................................................................- 19 -

VIII. STATEMENT REGARDING ORAL ARGUMENT ...................- 20 -

IX. CERTIFICATE OF SERVICE ......................................................- 22 -

X. CERTIFICATE OF COMPLIANCE ..............................................- 22 -

iii

CASES Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) -------- - 20 - Becnel v. Mercedes-Benz USA, LLC, NO: 14-0003 (E.D. La., 2014) ------------------------------------------------- - 16 - Belville v. Ford Motor Co., 13-cv-6529 (S.D. W. Va., 2014) ------------- - 17 - Ford Motor Credit v. Laing, 705 So.2d 1283 (La.App. 2 Cir. 1998) ------------------------------------------------------------ - 16 - Gulf Production Co. v. Hoover Oilfield Supply, 672 F.Supp.2d 752 (E.D. La., 2009) ----------------------------------------- - 16 - In re Ford Motor Co. Vehicle Paint Litig., 1996 WL 426548 (E.D. La. Jul. 30, 1996) --------------------------------- - 17 - Jackson v. Slidell Nissan, 693 So.2d 1257 (La.App. 1 Cir. 1997) ------------------------------------------------------------ - 16 - Jackson v. Slidell Nissan, 693 So.2d 1257 (La.Ct.App. 1997) ----------------------------------------------------------------- - 16 - Johnson v. Chl Enterprises, 115 F.Supp.2d 723 (W.D. La., 2000) ------------------------------------------------------------------- - 16 - Leblanc v. Wyeth, Inc., 495 F.Supp.2d 609 (W.D. La., 2007) ------------------------------------------------------------------- - 16 - Mire. v. Eatelcorp, Inc., 849 So.2d 608 (La.App. 1 Cir. 2003) ---------- - 17 - Mire. v. Eatelcorp, Inc., 927 So.2d 1113 (La.App. 1 Cir. 2005) -------- - 17 - New Orleans Assets, L.L.C. v. Carl E. Woodward, 278 F.Supp.2d 772 (E.D. La., 2003) ---------------------------------------- - 16 - Orr v. Jones, 95 So.3d 583 (La.App. 5 Cir. 2012) -------------------------- - 17 -

iv

Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640 (5th Cir., 2002) ------------------------------------------------- - 15 - Pitre v. Yamaha Motor Co., NO. 13-5327 (E.D. La., 2014) ------------- - 17 - Pratt v. Himel Marine, Inc., 823 So.2d 394 (La.App. 1 Cir. 2002) ---- - 17 - Regents of Univ., Cal v. Credit Suisse First Bos., 482 F.3d 372 (5th Cir. 2007) ---------------------------------------------------- - 6 - Safeco Ins. Co. of Am. v. Chrysler Corp., 834 So.2d 1026 (La. App. 3 Cir. 7/31/02) -------------------------------------------------------- - 17 - Stuart v. American Cyanamid Co., 158 F.3d 622 (C.A.2 (N.Y.), 1998) -------------------------------------------------------------- - 16 - Vincent v. Hyundai Corp., 633 So.2d 240 (La.Ct.App. 1993) ----------- - 16 - Young v. Ford Motor Co., Inc., 595 So.2d 1123 (La. 1992) -------------- - 18 -

STATUTES

28 U.S.C. §1292 ----------------------------------------------------------------------- - 1 -

Fed.R.Civ.P. 23(f) advisory committee notes --------------------------------- - 6 -

Federal Rule of Civil Procedure 23(f) ---------------------------------- - 1 -, - 15 -

La.Civ.C. Art. 2520 ---------------------------------------------------------- - 1 -, - 20 -

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APPENDIX

Leblanc v. Exxon, No. 3:14-cv-201, Class Certification Hearing Transcript Volume I of III-------------- ------------------------------ Exhibit A

Leblanc v. Exxon, No. 3:14-cv-201, Class Certification Hearing Transcript Volume II of III------------------------------------------- Exhibit B

Leblanc v. Exxon, No. 3:14-cv-201, Class Certification Hearing Transcript Volume III of III----------- ------------------------------ Exhibit C

Oral Reasons for Judgement, Class Certification Hearing----------------------------------------- Exhibit D

Written Reasons for Judgement, Class Certification----------------------------------------------------- Exhibit E

Gerard Forde deposition submitted as trial testimony ------------------------------------------------------ Exhibit F

Karl W. Gardner deposition submitted as trial testimony ------------------------------------------------------ Exhibit G

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I. Issues Presented

The case law on redhibition claims in Louisiana clearly instructs

that an “objective reasonable person” standard applies when

adjudicating contractual redhibition cases under La.Civ.C. Art. 2520, et

seq. The Honorable District Court denied tens of thousands of consumers

of a contaminated commodity gasoline product access to Rule 23’s

administrative tools, finding that an individual subjective analysis of

“inconvenience or uselessness” was required for each consumer.

If a subjective individual finding is now required, then class

administration of mass Louisiana redhibition claims is now impossible in

federal court. Should this court at least review a ruling that materially

alters consumer protection legislation originating before 1808?

II. Statement of Jurisdiction

The Honorable District Court denied class certification and thereby

vested this Court of Appeals with jurisdiction under 28 U.S.C. §1292(e),

pursuant to Federal Rule of Civil Procedure 23(f).

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III. Standard of Review The question before the Court is whether to grant the Petitioners

the right to file an appeal based on a complete record, or to allow the

denial of class certification to resolve the merits of the matter below.

Denial of class certification by the District Court triggers the “unfettered”

discretion of this Court to allow an appeal pursuant to the plain language

of Fed.R.Civ.P. 23(f). See, e.g., Shin v. Cobb County Bd. Of Educ., 248

F.3d 1061, 1063-65 (11th Cir. 2001).

IV. Reasons to Grant the Petition for Permission to Appeal Respondent ExxonMobil, Corporation (“Exxon”), contaminated at

least five million (5,000,000) gallons of commodity-level gasoline with

approximately 100,000 pounds of tackifying resin intended for its

adhesion production facility.1 The gasoline was distributed to nearly

every gas station within an 80-mile radius of the Baton Rouge facility

(regardless of brand name), and caused severe and immediate damage to

thousands of engines.2 Many others had what Exxon calls “self-

correcting” problems like hard starts, sluggishness, rough idle, black

1 See, testimony of Timothy Daly, Ph.D., Plaintiff Expert, Exhibit A, p. 114-:5 – 115:2. 2 See, testimony of John E. Dill, Claims Supervisor for Exxon Mobil Risk Management, Exhibit B, p. 9:15-22; and p. 44:2-13.

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smoke, warning lights, knocking, shaking, misfiring, etc.3 The long-term

impact of the resin in engines is a disputed merits question. In spite of

the law of redhibition, Exxon refuses to reimburse the purchase price

unless the consumer repaired tort damages.4

Petitioners filed suit under Louisiana’s contractual redhibition statute

since the contaminated gasoline contained a redhibitory defect – i.e., a

vice or a defect that renders the gasoline useless or so inconvenient that

no reasonable person would purchase it if fully informed of the

contaminant, the likelihood of damage to engines and the inconvenience

of inspection to determine long-term damage. Not a single witness,

including Exxon’s own expert, testified they would have purchased the

gas with full knowledge.5

On its face, the case presents a quintessential class: (i) millions in

damage to tens of thousands of consumers of a commodity product, (ii)

from a harmful contamination the buyer cannot evaluate or distinguish

at the time of purchase, (iii) sold to a wide population in a tight

3 Testimony of John E. Dill, Exhibit B, pp. 55:11 – 56:4. 4 Id., at p. 86:15-19. (“Q: Were you authorized in this case to pay claims to people who just showed up and said I purchased defective fuel? A: No, I was authorized to pay people who claimed they had a problem…”) 5 See, testimony of Dennis Assanis, Exxon litigation expert, Exhibit C, 43:18 – 47:6.

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geographic area, (iv) who were not informed of the contaminated name

brands, the symptoms to look for, or the damaging nature of the defective

commodity, and (v) who must use common evidence to prove virtually

every element of their claims.

The Honorable District Court denied class certification, finding that

whether or not a redhibitory defect existed – the fundamental question

for the jury – would require an individual analysis of each buyer’s

subjective experience with the contaminated gasoline. In application, this

decision means two buyers of the same commodity product could have

different legal remedies based on their subjective knowledge about the

defective product. Can a contaminated commodity product have a

redhibitory defect in one engine, causing $19,053 in damage, but not have

a redhibitory defect in the next engine that bought the gas moments later

from the same pump, for the same use, but had a “self-correcting” event?

Petitioners contend the Honorable District Court erred by applying an

individual tort-based analysis – i.e., each consumer must show they were

harmed – to a contract claim for rescission of the sale of a defective

product. This critical distinction has been analyzed multiple times, and

it is clear that the jury is empowered to find all five million gallons of the

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contaminated gasoline had a redhibitory defect when sold to all the class

members, by applying a reasonable person standard. There is no

necessity for an individual analysis of each buyers subjective feelings

regarding inconvenience or uselessness when a preponderance of

objective data is readily available, and legally required.

The District Court’s decision is the death knell of the putative class

members’ claims. It deprives the putative class members of access to a

jury, since virtually none will be able to prosecute an individual claim

against Exxon on highly technical matters – e.g., the formation tendency

of injector valve deposits and combustion chamber deposits from a heat

activated polymer resin never expected to enter an internal combustion

engine.6 Even if they did tackle this daunting challenge, each of the

thousands of claims would use the exact same evidence to show

contamination and resultant redhibitory defect or vice. The unique

questions regard volume purchased and location, which are the plaintiffs’

burden at trial.

6 See, e.g., testimony of Dan Daly, Ph.D., Exhibit A, at pp. 103:23 – 104:23; and, Exhibit F, Gerard Forde deposition submitted as trial testimony, at p. 48:6-10 (“Q:…But you don’t want E1000 resin sent to the fuel side of the facility; correct? A: That is correct.”)

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The instant matter presents several of the factors this circuit, and

others, have identified as warranting appellate review at this

interlocutory stage.7 Most significantly, the denial of class certification

has eradicated the potential for restitution for tens of thousands of

consumers of a contaminated commodity, without any consideration of

the merits of their claims.

Further, the District Court’s opinion usurps a state legislative

consumer protection device as old as Louisiana itself, by eliminating Rule

23’s administrative tools. This “death knell” decision will be used to

insulate future contamination events, and alter the delicate balance

between large manufactures and consumers. A procedural ruling that

destroys the application of state law should be subject to this Court’s

review. The denial of class certification means no review of the merits

will ever take place, and if this petition is denied, there will never be an

opportunity for appellate review.

Finally, the denial of access to Rule 23’s administrative tools presents

the important question of whether Louisiana’s redhibition statute’s

7 See, e.g., Fed.R.Civ.P. 23(f) advisory committee notes; and, Regents of Univ., Cal v. Credit Suisse First Bos., 482 F.3d 372 (5th Cir. 2007).

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“uselessness” and “inconvenient” language requires subjective individual

proof in federal court. Objective “reasonable person” proof, as required up

to this point, is capable of class-wide analysis. This decision, therefore,

will determine if the federal courts apply Louisiana state law differently

than the state courts, and differently than prior federal decisions.

Needless to say, this is a matter of substantial public interest that will

impact existing and future claims regarding large sales of defective

products to retail consumers. Such important changes in the law should

not be abandoned at the district court level at the interlocutory stage.

V. Statement of the Case A. Statement of Facts It is undisputed that on March 7, 2014, a pump malfunction in

Exxon’s chemical plant sent approximately 100,000 pounds of Escorez

resin, intended for adhesion production at the chemical plant, into

Exxon’s gasoline production system.8 The Escorez resin was identified as

matching the Escorez 2203 product – a heat activated adhesive in the

8 See, Exhibit F, Gerard Forde deposition submitted as trial testimony, at pp. 42:24 – 45:6; and Exhibit B, testimony of Mike Noorman, p. 153:6-12.

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“Escorez 1000” family of adhesive products. Escorez 2203 resin has no

role in the production of gasoline.9

Under proper operating conditions a chemical called a “raffinate” is

used in the gasoline production. “The raffinate is a gasoline-like molecule

that is normally blended into gasoline.”10 The Escorez resin, on the other

hand, “is a very heavy molecule, that typically is not in gasoline.”11 The

“gasoline-like” raffinate easily separates from the not-gasoline-like heavy

Escorez resin and each chemical is pumped to its intended processing

facility: tackifying resin to the adhesion finishing area, and raffinate to

the gasoline refinery.

The signs of contamination surfaced, at the latest, on March 13,

2014, when gasoline exceeded Exxon’s internal warning threshold for

unwashed gums.12 Five days later, Exxon’s Global Product Quality unit

was contacted about the high gum level in Baton Rouge, and instructed

the refinery to take additional samples. In spite of the fact it triggered an

internal alarm, and was obviously out of the norm by a multiple of 10,

9 See, Exhibit F, Gerard Forde deposition submitted as trial testimony, at pp. 47:24 – 50:6. 10 See id., at pp. 42-44. 11 See id., at pp. 43-44 (emphasis added). 12 See id., at p. 79:7 - 83:1.

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Exxon continued to send this gasoline to the Baton Rouge terminal for

local distribution before conducting a full investigation. Local

distribution included supplying this “commodity”13 gasoline to local

Chevron, Shell, Murphy, Sams, Circle K, Racetrack and other brand

names stations.

On March 26th Exxon shut down the local terminal after dozens of

consumer complaints made clear the gasoline was causing engines to fail,

run rough, sputter, etc.14 Exxon quickly determined that the high volume

of “gum” was not the normal blending byproduct the ASTM “gum” test is

designed to measure, but an Escorez resin contaminate.15

By March 29th the faulty adhesion return stream was identified and

shut down to prevent further contamination. Days later, on March 31st

the Baton Rouge Terminal was reopened. After the terminal was

reopened, Exxon determined that levels of Escorez below 22 mg/hml

should not cause damage, at least not to the two (2) vehicles it tested. The

contaminated gasoline that left the facility contained between 27 mg/hml

13 Exhibit F, Gerard Forde deposition submitted as trial testimony, at pp. 21:14 – 22:23, and 25:12-20. 14 Testimony of John E. Dill, Exhibit B, pp. 55:11 – 56:6. 15 See, Exhibit F, Gerard Forde deposition submitted as trial testimony, at pp. 41:15 – 42:6, and 42:12 – 44:6.

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and 49 mg/hml, according to Exxon, while evidence shows levels in excess

of 50 mg/hml sampled from local pumps.16 Thus, all 5,000,000 gallons

exceeded the level of Escorez Exxon determined as deleterious to engines

– even if a hypothetical uninformed driver did not perceive the vice.

Exxon had never tested the impact of Escorez resin in engines.17 In

fact, no one has ever studied this industrial adhesive in engines. But high

molecular weight polymers are known to be troublesome. Engines that

showed immediate harm from the Escorez resin showed evidence of

severe intake valve sticking. In simple terms, the adhesive resin’s ability

to bind the intended movement of the precision valves caused specific

symptoms.18 Exxon admits that even small impediments to the intake

valve movement could cause long-term problems – e.g., a loss of

compression due to a partially open valve.19

Exxon’s in-house experts developed a list of anticipated symptoms

that applied to all makes and models of automotive engine – they did not

16 See, Exhibit F, Gerard Forde deposition submitted as trial testimony, at pp. 80:5 – 85:25. 17 See, Exhibit B, Testimony of Mike Noorman, at p. 151:8-21. 18 See id., at pp. 119:8 – 122:10, (“I was trying to confirm that the failure mode that we are observing here was related to intake valve sticking, and identifying a sticky material on a valve that had not had an opportunity to wash away was quite important in that investigation.”), see also, id., at p. 150:24 – 151:4 (“Q: That sticky material was till visible correct? A: It was. Q: In fact, you touched it, didn’t you? A: I did. Q: You felt the sticky nature of it, correct? A: I did.”) 19 See, deposition of Karl W. Gardner, submitted as trial testimony, Exhibit G, p. 23:11-22.

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need to evaluate every engine type to anticipate the problems all designs

would encounter. No manufacturer was immune from the symptoms, and

over 41 manufactures’ engines needed repair. The symptoms included:

(1) check engine lights, (2) running rough, (3) knocking, (4) shuttering,

(5) sluggishness, (6) shaking, (7) misfiring, (8) starting problems, (9) poor

acceleration, (10) clogged fuel injectors, (11) sticking valves, and (12)

damage to “parts potentially affected by a fuel issue of this nature, i.e.,

high gum levels.”20

According to Exxon, in many cases the valve sticking was enough

to destroy the valve train and cause over $5,000 in damage.21 In

thousands of others, the damages were less severe, but required repair –

over $4.7 million, or roughly $1,500 per engine, to repair.22

A newer Toyota [or] Nissan truck with large high compression V8 engine that for one reason or another winds up with two piston rods through the engine block and requirement of a complete engine replacement. So in terms of claims that we paid, there are everything from $55 to $21,000.23

20 Testimony of John E. Dill, Exhibit B, pp. 55:11-56:6. 21 Id., at p. 95: 18-24. 22 Id., at p. 24:22-24. 23 Id., at p. 25:7-12.

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Exxon asserts the vast majority of engines had a “self-correcting event,”

or no noticeable event, and thus required no mechanical repair to

continue functioning at some level. Exxon’s litigation expert opined that

if the contaminated gas was replaced with clean gas:

“…the atypical fuel would create, as we have seen, your honor, in some of the videos, but also in the field, we have seen valves that would accumulate a coating of this gummy deposit…In the first injection it probably won’t wash away all the sticky deposits, so my engine will turn and the[sic] crank and all will be a little rough. But two, three times, five times, ultimately, it’s going to basically wash away the deposits and the engine will reestablish the normal operation.”24

If the engine received no repair, Exxon asserts the fuel was not

defective and redhibition does not apply. Whether those “self-correcting

events” reduced engine efficiency by impeding proper valve seal or travel

is an open merits question at this early stage. Whether these “self-

correcting” hard starts, sluggishness, rough idle, black smoke and similar

events were inconvenient enough to satisfy the reasonable person

standard is the merits question for the jury.

Exxon’s litigation expert says that regardless of the thousands of

repair claims, there is no long-term impact from the adhesive. In spite of

24 Testimony of Dennis Assanis, Exxon litigation expert, Exhibit B, at pp. 191:25 – 192:4.

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this opinion derived for litigation, Exxon’s in-house experts are running

long-term tests to determine the impact of Escorez on engines.25 At this

stage, Plaintiffs’ experts have only had brief access to a small portion of

the relevant data. From the data they have seen, they anticipate that the

heat-activated nature of the Escorez 2203 compound will present long-

term issues with valve and combustion chamber deposits, along with

sludge in the oil system due to seep of Escorez into the engine oil.

From this data and related data, the jury can decide the ultimate

question: Would the knowledge of thousands of engines requiring

mechanical repair, plus thousands more enduring “self-correcting

events,” plus the need to inspect valves to determine if deposits are

forming, render the gas so useless or inconvenient to cause a reasonable

buyer to avoid the sale?

B. Proceedings and Disposition Below Petitioners filed suit on April 3, 2014, and filed the initial motion

for class certification within the 90-day statutory period, before discovery

started. Exxon produced only its claims files, declaring that it had

admitted the gas was “atypical,” and therefore no discovery was

25 Testimony of Mike Noorman, Exhibit B, pp. 138:20 – 139:22, and 154:3-12.

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necessary regarding the nature of the defect – i.e., what was the

contaminant, and what symptoms would it cause. Petitioners moved to

compel discovery about the nature of the defect, and Exxon eventually

produced more information showing it was actually a contamination

event, not a blending error as reported. That additional information,

however, did not come until fact discovery had ended, and Petitioners’

expert reports were tendered.

A class certification hearing was conducted from February 18th

through the 20th, 2015. The hearing included ten live witnesses, and

three witness submitted by deposition testimony. At the conclusion of the

final live witness on February 20th, the Court announced a decision was

ready and would be read into the record within the hour. The oral reasons

for judgment are attached as Exhibit D. Written reasons, incorporating

the oral reasons, were issued on March 17th. See, Exhibit E. Plaintiffs’

motion for reconsideration was denied on April 20, 2015.

The District Court denied class certification, finding an individual

subjective analysis would be necessary to determine if each and every

putative class member found the gas useless or inconvenient. This

individual analysis, the District Court held, failed almost every element

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of Rule 23 – commonality, typicality, predominance, superiority,

ascertainability, etc. – because a case-by-case analysis of uselessness or

inconvenience would be necessary at each stage. As the Court stated,

“[t]here is no uniform method for determining who should be a class

member, rather, each plaintiff would bear the burden of proving that the

fuel purchased rendered the gasoline useless or inconvenient, or

otherwise diminished its usefulness.” Exhibit D, at p. 59:18 – 22.

VI. Law and Argument A. The Reasonable Person Standard Redhibition is a statutory contract claim; it is distinctly different

from a tort claim. “Redhibition is an avoidance of sale. Accordingly, the

goal of the remedy is to return the injured party to the position he or she

was in before the sale occurred, not to the position he or she was in before

his or her injury, as in a tort remedy. These distinct inquiries will not

necessarily produce the same measure of damages.” Patin v.

Thoroughbred Power Boats Inc., 294 F.3d 640, 656 (5th Cir. 2002).

Critical to this petition, and central to the District Court’s error, the

redhibition statute and opinions applying it, direct that the method of

proving redhibition is by a preponderance of evidence “the seller sold the

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thing to him and it is either absolutely useless for its intended purpose

or its use is so inconvenient or imperfect that, judged by the reasonable

person standard, had he known of the defect, he would never have

purchased it…” Stuart v. American Cyanamid Co., 158 F.3d 622, 630

(C.A.2 (N.Y.) 1998) (emphasis added), citing, Jackson v. Slidell Nissan,

693 So.2d 1257, 1262 (La.Ct.App. 1997), and Vincent v. Hyundai Corp.,

633 So.2d 240, 243 (La.Ct.App. 1993), writ denied, 634 So.2d 832 (La.

1994).

This fundamentally important “reasonable person” standard is not

disputable, and is plainly stated by at least one federal appellate court,

federal district courts in Louisiana and West Virginia, and every

Louisiana state appellate circuit. See, e.g., Stuart, infra; Johnson v. Chl

Enterprises, 115 F.Supp.2d 723, 728 (W.D. La., 2000); Leblanc v. Wyeth,

Inc., 495 F.Supp.2d 609, 615 (W.D. La., 2007); Becnel v. Mercedes-Benz

USA, LLC, No: 14-0003, pp. 18 – 19, May 13, 2014 (E.D. La., 2014); Gulf

Production Co. v. Hoover Oilfield Supply, 672 F.Supp.2d 752, 760 (E.D.

La., 2009), citing, New Orleans Assets, L.L.C. v. Carl E. Woodward, 278

F.Supp.2d 772 (E.D. La., 2003), citing, Ford Motor Credit v. Laing, 705

So.2d 1283, 1285 (La.App. 2 Cir. 1998), and Jackson v. Slidell Nissan,

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693 So.2d 1257, 1262 (La.App. 1 Cir. 1997); Belville v. Ford Motor Co.,

13-cv-6529, November 14, 2014, pp. 20 - 21 (S.D. W. Va., 2014), citing,

Pratt v. Himel Marine, Inc., 823 So.2d 394, 403 (La.App. 1 Cir. 2002); Orr

v. Jones, 95 So.3d 583, 588 (La.App. 5 Cir. 2012).

The Louisiana First Circuit Court of Appeal stated this plainly,

twice, in the Mire v. Eatelcorp decisions, stating “the relevant inquiry on

commonality of issues ‘does not involve the buyer’s subjective knowledge

or reliance, but rather is an objective inquiry into the deficiency and

whether it diminishes the product’s value or renders it so inconvenient

that the buyer would not have purchased it had he known of the

deficiency.”26

This directive to consider the redhibitory defect from the

perspective of a reasonable person, and not require proof of tort damage,

is the heart of the consumer protection goals of the redhibition

framework, and distinguishes it from the Louisiana Production Liability

Act.27 This consumer protection device goes back to Roman law, and was

26 Mire. v. Eatelcorp, Inc., 927 So.2d 1113, 1116 (La.App. 2005), reasserted in, Mire. v. Eatelcorp, Inc., 849 So.2d 608, 614 (La.App. 1 Cir. 2003). 27 See, Pitre v. Yamaha Motor Co., NO. 13-5327, p. 25 (E.D. La., 2014) quoting, Safeco Ins. Co. of Am. v. Chrysler Corp., 834 So.2d 1026, 1046 (La. App. 3 Cir. 2002); and TruSouth Oil Co., LLC v. Burlington Ins. Co., 2012 WL 4483465 *5 (W.D. La. 2012). See also, In re Ford Motor Co. Vehicle Paint Litig., 1996 WL 426548 (E.D. La. Jul. 30, 1996).

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part of the law of Louisiana from 1808, forward.28 “In contrast with the

Roman and civilian principles, the English doctrine of caveat emptor,

foreign to the civil law, long prevailed in the common law, affording little

protection at all to vendees.”29

The District Court misapplied this standard, and has altered a

critical consumer protection device. The law of redhibition is not so

subjective or pliable that one gallon of gas can simultaneously have, and

not have, a redhibitory defect. The use of a reasonable person standard

guarantees that subjective feelings and individual knowledge cannot

warp a well-intended consumer protection device through subjective

appreciation of a product’s qualities. If individual subjective proof is now

needed, no redhibition claim can ever apply class procedures in federal

court, and redhibition is thus dead as a consumer protection device.

The Honorable District Court’s error is summarized by two

contrasting summaries of the legal standard stated in her opinion. She

stated the proper standard, but applied a slight variation. Citing La. C.C.

art 2520, she quoted the presumption language, including “must be

28 See, Young v. Ford Motor Co., Inc., 595 So.2d 1123, 1127 (La. 1992). 29 Id., at 1128.

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presumed a buyer would not have bought…” Exhibit E, at p. 5. When

analyzing the facts, however, she summarizes the application of the law

as “must be presumed the buyer…” Id., emphasis added. The change from

“a buyer” to “the buyer” in the specific context of a class certification

hearing rendered class treatment impossible. Proving what “the”

individual class member would do requires individual proof, while

proving what “a” reasonable buyer would do is clearly within the bounds

of class treatment. Prior opinions using the words “the buyer” were not

dealing with class certification questions. This error led the District

Court to find “it will be incumbent on the Court to hear individualized

evidence of uselessness or inconvenience in order to determine whether

what the Plaintiffs characterize[30] as ‘defective’ was redhibitory.” Id., at

p. 6.

VII. Conclusion It was legal error for the District Court to require individual proof

of redhibition – the ultimate question for the jury – at the class

certification phase, when, at trial it is actually a presumption, satisfied

30 The District Court characterized the gasoline as contaminated – “…the fact that the gas was contaminated, and I use the word contaminated, with Escorez, is not ipos facto a redhibitory defect.” Exhibit D, at p. 56, ln. 7 – 9.

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by a preponderance of evidence as to what a “reasonable” buyer would do

if fully informed of the adhesive contamination. If the District Court

misapplied this legal standard, the opinion is subject to de novo review.31

But review can only happen if this Petition is granted.

The heightened standard applied by the District Court’s individual

subjective proof standard has functionally robbed the putative class of

their Seventh Amendment right to trial, and shattered Louisiana’s

consumer protection apparatus. This Honorable Court’s review is both

warranted, and essential.

VIII. Statement Regarding Oral Argument

Petitioners LeBlanc, Davis and Guillory are confident the issues

presented in this petition for permission to appeal are adequately briefed,

and respectfully submit that oral argument is likely not essential to aid

the Court’s decision. Petitioners stand ready to provide oral argument

should the Court deem it helpful.

31 See, Regents of Univ., Cal v. Credit Suisse First Bos., 482 F.3d 372, 380 (5th Cir. 2007) (quoting, Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir. 1998).

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Respectfully submitted, this 4th day of May, 2015.

/s/ Charles F. Zimmer II____ Charles F. Zimmer II (T. A.) (La. #26759) C.F. Zimmer, LLC 9213 Rosecrest Lane River Ridge, Louisiana 70123 Telephone: (504) 405-5597 Mobile: (504) 729-8082 czimmer@cfzii.com Eric J. O’Bell (La #26693) O’Bell Law Firm, L.L.C. 3500 N. Hullen Street Metairie, Louisiana 70002 Tel: (504) 456-8677 Fax: (504) 456-8653 ejo@OBellLawFirm.com John H Smith (La. #23308) Loren D. Shanklin (La. #33366) Alicia Sosa (La. #34101) Smith Shanklin Sosa, L.L.C. 16851 Jefferson Hwy, Suite 5A Baton Rouge, LA 70817 Telephone: (225) 223-6333 Facsimile (888) 413-8345 john@smithshanklin.com

Daniel E. Becnel Jr. (La. # 2926) Salvadore Christina, Jr. (La. #27198) Becnel Law Firm LLC P. O. Drawer H Reserve, LA 70084 (985) 536-1186 (985) 536-6445 Fax dbecnel@becnellaw.com schristina@becnellaw.com Paul M. Brannon, (La. #22269) Brannon Law Firm, L.L.C. 3500 North Hullen Street Metairie, LA 70002 (504) 456-8696 (504) 456-8697

Counsel for the Petitioner-Plaintiffs

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IX. CERTIFICATE OF SERVICE

I certify that on May 4, 2015, the foregoing Brief was filed

electronically using the Court’s CM/ECF system, which will give notice

of the filing to counsel for the Appellee. In addition, one copy of the

Petition was served on counsel for the Respondent by electronic mail to

wlampton@joneswalker.com.

/s/ Charles F. Zimmer II Attorney for Petitioners

X. CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App.

P. 32(a)(7)(B) because this brief contains 4,052 words, excluding the parts

of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief

complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and

the type style requirements of Fed. R. App. P. 32(a)(6) because this brief

has been prepared in a proportionally spaced typeface using Microsoft

Word 365 in Century font size 14.

/s/ Charles F. Zimmer II Attorney for Petitioners

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