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Brillhart Abstention: Will Your Declaratory Judgment Action Stay in Federal Court?
Experienced insurance coverage lawyers know that choice of forum frequently affects choice of law, and choice of law is frequently outcome determinative. Coverage disputes, therefore, often result in a rush to the courthouse by both policyholders and insurers as they select the forum. One way insurers initiate litigation is to file a declaratory judgment action, usually in federal court.
The Declaratory Judgment Act, 28 U.S.C. '2201(a) (“DJA”), gives federal courts the right to grant declaratory relief. The DJA only provides that a federal court may make a declaration, not that it shall do so. Thus, the “distinctive feature” that the Supreme Court has highlighted in this “enabling Act” is the “unique and substantial discretion,” which the DJA grants the federal courts. Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995). Because of this substantial discretion, federal courts have the option to stay or dismiss ' that is, to abstain from deciding ' a federal declaratory action when there is a pending state action involving the same dispute, even if the state action was filed after the federal declaratory judgment action. As a result, the “first filed” rule, generally applicable in federal courts, does not apply in the context of a declaratory judgment action. 12-57 Moore's Federal Practice-Civil '57.42.2.b.i.A & B. In fact, one of the special circumstances warranting exception to the first filed rule is when a party files a declaratory judgment action after receiving notice of a planned suit by another party. See e.g. Federal Ins. Co. v. May Dep't Stores Co., 808 F. Supp. 347, 350 (S.D.N.Y. 1992).
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.