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RESOLUTION TRUST CORP. v. YOUNG

May 2, 1996

RESOLUTION TRUST CORPORATION, in its corporate capacity, Plaintiff, against WARREN YOUNG, JOHN STUCKEY, WILLIAM GALLO, ALLAN A. BORGHARD, WILLIAM GUARDENIER, DONALD VREDENBURGH, JR. and ALEXANDER MINELLA, Defendants.


The opinion of the court was delivered by: MCKENNA

 McKENNA, D.J.

 Plaintiff Resolution Trust Corporation ("RTC") *fn1" and Defendant William Guardenier seek entry of an order barring all claims which could be brought by non-settling defendants against Settling Defendant Guardenier, including, but not limited to, negligence, breach of fiduciary duty, and contribution and indemnification claims, however denominated, arising out of this matter, and dismissing with prejudice any and all claims asserted by the RTC against the Settling Defendant and by the Settling Defendant against the RTC.

 One of the non-settling Defendants, William Gallo, objects to the proposed order on several grounds. First, Gallo claims that application of New York law is not clearly warranted as it may be appropriate for the Court to apply federal law. Second, Gallo argues that even if New York law applies, § 15-108 only addresses contribution rights and does not address indemnification rights.

 I. Choice of Law

 As a threshold matter, Defendant Gallo asserts that the Court should not determine non-settling defendants' indemnification and contribution rights because the question of whether federal or state law should apply to these issues is a complicated one and that any decision on the issue is premature. In recognition of the strong federal and state interest in promoting settlements and the role of bar orders in serving that interest, the Court finds Gallo's argument unpersuasive and the issues raised ripe for decision.

 Defendant Gallo asserts that federal common law may apply because the RTC is a party to this action, see 12 U.S.C. § 1441a(l)(1) (suits to which the RTC is a party "shall be deemed to arise under the laws of the United States"). This statute is a jurisdictional statute but, in the past, some courts have found that the statute also implies that Congress intended federal law to govern actions involving the RTC. Any such presumption was limited by the Supreme Court's recent decision, O'Melveny & Myers v. FDIC, 129 L. Ed. 2d 67, 114 S. Ct. 2048 (1994), in which creation of federal common law was expressly disfavored except where explicitly authorized by Congress.

 In a prior decision on this case, 1995 WL 552622 (S.D.N.Y. Sept. 18, 1995), this Court dismissed several counts of this action on the ground that section 12 U.S.C. § 1821(k) of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") establishes gross negligence as the exclusive standard of director liability, preempting causes of action predicated on a lesser degree of fault. In dismissing the claims, the Court relied on and interpreted an explicit federal statutory provision; the Court did not find that "federal common law" governed this action.

 The Court is now asked to determine whether state or federal law should apply to determine contribution and indemnification rights resulting from § 1821(k) claims. Contribution and indemnification rights are issues left unaddressed by § 1821(k)'s statutory scheme. In O'Melveny & Myers v. FDIC, 129 L. Ed. 2d 67, 114 S. Ct. 2048 (1994), the Supreme Court faced a legal issue analogous to the one before this Court. The Supreme Court addressed the question of whether, in a suit brought by the Federal Deposit Insurance Corporation as receiver of a federally insured bank, a federal-law or state-law rule of decision governed issues not specifically addressed by FIRREA. The Supreme Court held:

 
In answering the central question of displacement of [state] law, we of course would not contradict an explicit federal statutory provision. Nor would we adopt a court-made rule to supplement federal statutory regulation that is comprehensive and detailed; matters left unaddressed in such a scheme are presumably left subject to the disposition provided by state law. Id. at 2053 (citations omitted).

 Thus, state law applies unless "some provision in the extensive framework of FIRREA provides otherwise. To create additional 'federal common law' exceptions is not to 'supplement' this scheme, but to alter it." Id. at 2054.

 As no specific statutory provision dictates the appropriate contribution and indemnification rules to apply, a court should apply state law unless judicial creation of a special federal rule is justified by a "significant conflict between some federal policy or interest and the use of state law." O'Melveny at 2054 (quoting Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 16 L. Ed. 2d 369, 86 S. Ct. 1301 (1966)). The fact that one party to this suit is the RTC and that the bank in question is federally chartered does not raise the kind of conflict sufficient to trigger creation of a federal rule. As noted in O'Melveny:

 
The rules of decision at issue here do not govern the primary conduct of the United States or any of its agents or contractors, but affect only the FDIC's rights and liabilities, as receiver, with respect to primary conduct on the part of private actors that has already occurred. Uniformity of law might facilitate the FDIC's nationwide litigation of these suits, eliminating state-by-state research and reducing uncertainty--but if the avoidance of those ordinary consequences qualified ...

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