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Theodore H. Davis Jr. is a partner with Kilpatrick Townsend & Stockton LLP in Atlanta, Georgia. In the interest of full disclosure, he notes the participation of his law firm in Cosa Instrument Corp. v. Hobré Instruments BV, 698 F. Supp. 2d 345 (E.D.N.Y. 2010), as counsel for the declaratory judgment plaintiff. He can be reached at firstname.lastname@example.org.
Both Article III of the U.S. Constitution and the Declaratory Judgment Act require courts acting under their authority to find an “actual controversy” before proceeding.1 Under this rule, “[p]arties that have their legal interests threatened in an actual controversy have standing to sue under the Declaratory Judgment Act. On the other hand, declaratory judgments cannot be used to seek advisory opinions on hypothetical factual scenarios.”2
The Supreme Court’s 2007 opinion in MedImmune, Inc. v. Genentech, Inc.,3 loosened the standard governing this requirement, holding it satisfied when “the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”4 In MedImmune’s wake, courts have increasingly found actionable controversies on the theory that: