Close X
Attorney Spotlight

Find out which two countries Cheryl Palmeri gets the most questions about related to International Trade in today's market? Find out more>


Close X


Search our Experience

Experience Spotlight

In June 2016, AmSurg Corp. and Envision Healthcare Holdings, Inc. (Envision) announced they have signed a definitive merger agreement pursuant to which the companies will combine in an all-stock transaction. Upon completion of the merger, which is expected to be tax-free to the shareholders of both organizations, the combined company will be named Envision Healthcare Corporation and co-headquartered in Nashville, Tennessee and Greenwood Village, Colorado. The company's common stock is expected to trade on the New York Stock Exchange under the ticker symbol: EVHC. Bass, Berry & Sims served as lead counsel on the transaction, led by Jim Jenkins. Read more.

AmSurg logo

Close X

Thought Leadership

Enter your search terms in the relevant box(es) below to search for specific Thought Leadership.
To see a recent listing of Thought Leadership, click the blue Search button below.

Thought Leadership Spotlight

Inside the FCA blogInside the FCA blog features ongoing updates related to the False Claims Act (FCA), including insight on the latest legal decisions, regulatory developments and FCA settlements. The blog provides timely updates for corporate boards, directors, compliance managers, general counsel and other parties interested in the organizational impact and legal developments stemming from issues potentially giving rise to FCA liability.

Read More >

Chris Lazarini Outlines Factors to be Considered in a Declaratory Judgment Action


July 20, 2015

Bass, Berry & Sims attorney Chris Lazarini analyzed Emerman vs. Financial Commodity Investments, LLC in which the court dismissed defendants' declaratory judgment claim. The court considered the following factors in its dismissal:

  1. Whether the declaratory action would settle the controversy;
  2. Whether the declaratory action served a useful purpose in clarifying the legal relations in issue; 
  3. Whether the declaratory remedy was being used merely to gain a tactical advantage in ongoing, parallel proceedings in another court; 
  4. Whether the declaratory action would cause friction between federal and state courts and improperly encroach upon state jurisdiction; and 
  5. Whether an alternative approach provided a more effective means of resolving the dispute.

Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SLC, please visit the SLC website to sign up for the newsletter.

Emerman vs. Financial Commodity Investments, LLC, No. 1:13cv2546 (N.D. Ohio, 6/15/15) 

*Declaratory relief may be appropriate in the early stages of litigation to give the parties direction whether a course of conduct may lead to future damages, and is generally not appropriate where the alleged injury is already complete.

**Factors to consider in a declaratory judgment action include: (1) whether the declaratory action will settle the controversy; (2) whether the declaratory action serves a useful purpose in clarifying the legal relations in issue; (3) whether the declaratory remedy is being used merely to gain a tactical advantage where there are ongoing, parallel state and federal proceedings; (4) whether the declaratory action would cause friction between federal and state courts and improperly encroach upon state jurisdiction; and (5) whether an alternative approach affords a more effective means of resolving the dispute. 

Plaintiffs brought this fraud and breach of fiduciary duty action after suffering significant losses in Defendants' commodity trading program. In an earlier opinion, the Court allowed Plaintiffs to file a second amended complaint after the deadline for filing amendments had passed, finding no prejudice where discovery was ongoing and the dispositive motion deadline had not passed (SLA 2015-06). Defendants responded to the second amended complaint, denying wrongdoing and asserting barratry, civil conspiracy, abuse of process, and declaratory judgment as counterclaims. Plaintiffs moved to dismiss the counterclaims. 

Conducting a Twombly analysis, the Court dismisses the barratry ("frequently exciting or stirring up quarrels and suits, either at law or otherwise"), civil conspiracy, and abuse of process claims. The Court finds each of these claims to be vague, conclusory and lacking sufficient factual support to state a claim for relief that is plausible on its face. In contrast to its prior ruling, the Court declines Defendants' request for leave to amend the civil conspiracy and abuse off process claims. The Court finds that Defendants offered no reasonable basis for allowing the amendments, noting that discovery had closed, the dispositive motion deadline was fast approaching, and Defendants knew of Plaintiffs' challenges to the claims from prior pleadings, but did not plead the claims with greater specificity.

The Court gives more deference to the declaratory judgment claim. Following Sixth Circuit guidance on the Declaratory Judgment Act, the Court considers whether issuing a declaration would be "useful and fair." First, the Court finds that issuing a declaration would not bring an end to the litigation because Defendants' counterclaim was not directed at all of Plaintiffs' claims. Second, the Court finds that issuing a declaration would not clarify the legal issues surrounding the factual question of whether Defendants made a material change to their trading program. Finally, the Court concludes that the issues will be more effectively resolved by allowing the parties to address the claims and defenses through the normal course of litigation. Because these factors weigh against Defendants' declaratory judgment claim, the Court declines to exercise jurisdiction over the claim and dismisses it.

Related Professionals

Related Services


Visiting, or interacting with, this website does not constitute an attorney-client relationship. Although we are always interested in hearing from visitors to our website, we cannot accept representation on a new matter from either existing clients or new clients until we know that we do not have a conflict of interest that would prevent us from doing so. Therefore, please do not send us any information about any new matter that may involve a potential legal representation until we have confirmed that a conflict of interest does not exist and we have expressly agreed in writing to the representation. Until there is such an agreement, we will not be deemed to have given you any advice, any information you send may not be deemed privileged and confidential, and we may be able to represent adverse parties.