A respected federal judge in the Northern District of California has issued an order that seems to have no precedent. It presents opportunity to courts and counsel to do good things.
Judges and practitioners facing new and unsettled ideas that they are told are "doctrines" can invite the reasoned expertise of the State Insurance Commissioner. Nothing exists to prevent it, so far as I know. For example, the judge in a Northern District of California case invited the California Insurance Commissioner to submit a brief expressing the Commissioner's "view on whether the Commissioner's exclusive authority precludes this suit," in other words, on whether the lawsuit at bar truly represents a challenge to rates approved by the Insurance Commissioner and so would in other jurisdictions be barred by what is called the Filed Rate "Doctrine."
The case in which the order -- an invitation, really -- was entered is Rejoice! Coffee Co. v. Hartford Fin. Serv's Grp., Inc., Doc. 54, Order Re Inviting Insurance Commissioner to Provide Views, filed April 13, 2021 (N.D. Cal. Case No. 20-cv-06789-EMC).
What a great opportunity and what a great idea -- ingenious, really.
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