CONSUMER PROTECTION ACT
This Rule governs petitions by the Secretary of the Treasury (“Secretary”) under the Dodd-Frank
Wall Street Reform and Consumer Protection Act (“Act”), Pub.L. No. 111-203, 124 Stat. 1376,
1444 (Jul. 21, 2010), 12 U.S.C. § 5382(a)(1), for orders authorizing the Secretary to appoint the
Federal Deposit Insurance Corporation as receiver for financial companies.
(a) FILING OF THE PETITION
A petition under this Act must contain all relevant findings and recommendations under
the Act, and must be filed under seal. The original and one copy of the petition and a PDF
version on a CD-ROM shall be tendered to the Clerk. The original and copy of the
petition and all related documents shall be submitted securely in an envelope/box
appropriate to accommodate the documents. The envelope/box containing such
documents shall have a conspicuous notation as follows: “DOCUMENT UNDER
SEAL.”
(b) NOTICE TO THE COURT
The Secretary shall provide written notice under seal to the Clerk of the Court that a
petition will likely be filed with the Court, and to the extent feasible, the notice will be
provided at least 48 hours prior to filing the petition.
(c) NOTICE TO THE FINANCIAL COMPANY
A petition shall be accompanied by a certificate of counsel or other proof satisfactory to
the Court, stating (1) that actual notice of the time of filing the petition, and copies of all
papers filed to date or to be presented to the Court at any hearing, have been or are being
furnished to the financial company; or (2) the efforts made by the Secretary to give such
notice and furnish such copies. The certificate shall also contain the name and contact
information of the individual at the financial company to whom notice was given and
upon whom service was effected.
(d) OPPOSITION TO THE PETITION
The financial company named in the petition may file an opposition to the petition under
seal and may appear at a hearing to oppose the petition. The opposition shall be served
on the Secretary by the most expeditious means available.
(e) PROPOSED ORDER
Each petition and opposition shall be accompanied by a proposed order.
(f) ASSIGNMENT OF THE PETITION
The petition shall be assigned to the Chief Judge or Acting Chief Judge.
(g) CONSIDERATION OF PETITION: NOTIFICATION OF DECISION
In considering a petition, the Court shall, on a confidential basis and without public
disclosure, determine whether the Secretary’s decision that the covered financial
company (1) is in default or in danger of default and (2) satisfies the definition of a
financial company under the Act is arbitrary and capricious.
(1) Upon a finding that the Secretary’s determination is not arbitrary and capricious,
the Court shall issue an order immediately authorizing the Secretary to appoint the
Corporation as receiver of the covered financial company.
(2) Upon a finding that the Secretary’s determination is arbitrary and capricious, the
Court shall provide immediately for the record a written statement of each reason
supporting the determination of the Court, and shall provide copies thereof to the
Secretary and the covered financial company, and must afford the Secretary an
immediate opportunity to amend and refile the petition.
(h) TIMING OF DECISION
The Court shall attempt to rule on a properly filed petition within twenty-four (24) hours
of receipt of the petition. In the event that the Court does not do so, the petition is
deemed granted by operation of law under the Act.
(i) MAINTAINING PETITIONS AND SUBSEQUENT FILINGS UNDER SEAL
The petition and subsequent filings must be maintained under seal pending further order
of the Court. Upon the granting of a petition, the Secretary shall promptly notify the
Court of the appointment of the receiver. The Court shall then issue an Order to Show
Cause to the Secretary as to why the proceedings, or any part thereof, shall not be
unsealed.
(j) STAY PENDING APPEAL
The decision of the Court on a petition shall not be subject to a stay or injunction pending
appeal.
(k) EFFECT OF Fed. R. Civ. P. 6
The time periods found in subsections (b) and (h) of this Rule are not subject to Fed. R.
Civ. P. 6.
APPENDIX A
D.C. BAR VOLUNTARY STANDARDS
FOR CIVILITY IN PROFESSIONAL CONDUCT
PREAMBLE
Civility in professional conduct is the responsibility of every lawyer. While lawyers have
an obligation to represent clients zealously, we must also be mindful of our obligations to
the administration of justice. Incivility to opposing counsel, adverse parties, judges, court
personnel, and other participants in the legal process demeans the legal profession,
undermines the administration of justice, and diminishes respect for both the legal
process and the results of our system of justice.
Our judicial system is a truth-seeking process designed to resolve human and societal
problems in a rational, peaceful, and efficient manner and designed to be perceived as
producing fair and just results. We must be careful to avoid actions or statements which
undermine the system or the public's confidence in it.
The organized bar and the judiciary, in partnership with each other, have a responsibility
to promote civility in the practice of law and the administration of justice. Uncivil
conduct of lawyers or judges impedes the fundamental goal of resolving disputes
rationally, peacefully and efficiently. Such conduct may delay or deny justice and
diminish the respect of law, which is a cornerstone of our society and our profession.
Civility and professionalism are hallmarks of a learned profession dedicated to public
service. These standards are designed to encourage us, as lawyers and judges, to meet
our obligations of civility and professionalism, to each other, to litigants, and to the
system of justice. The goal is to ensure that lawyers and judges will conduct themselves
at all times, in both litigated and nonlitigated matters, with personal courtesy and
professionalism in the fullest sense of those terms.
While these standards are voluntary and are not intended by the D.C. Bar Board of
Governors to be used as a basis of litigation or sanctions, we expect that lawyers and
judges in the District of Columbia will make a commitment to adhere to these standards
in all aspects of their dealings with one another and with other participants in the legal
process.
Finally, we believe these standards should be incorporated as an integral component of
the teaching of professionalism to law students and practicing lawyers alike. We
therefore believe that it is important for law schools in our community to incorporate
these standards in their curricula and for the District of Columbia Bar, the voluntary bar
associations, law firms, government agencies, and other legal institutions in our
community to teach and promote these standards as part of their continuing legal
education programs.
Adopted by the D.C. Bar
Board of Governors
June 18, 1996;
Amended March 11, 1997
PRINCIPLES OF GENERAL APPLICABILITY:
LAWYERS DUTIES TO OTHER COUNSEL, PARTIES AND THE JUDICIARY
GENERAL PRINCIPLES:
1. In carrying out our professional responsibilities, we will treat all participants in the legal
process, including counsel and their staff, parties, witnesses, judges, and court personnel,
in a civil, professional, and courteous manner, at all times and in all communications,
whether oral or written. We will refrain from acting upon or manifesting racial, gender, or
other bias or prejudice toward any participant in the legal process. We will treat all
participants in the legal process with respect.
2. Except within the bounds of fair argument in pleadings or in formal proceedings, we will
not reflect in our conduct, attitude, or demeanor our clients' ill feelings, if any, toward other
participants in the legal process.
3. We will not, even if called upon by a client to do so, engage in offensive conduct directed
toward other participants in the legal process nor will we abuse other such participants in
the legal process. Except within the bounds of fair argument in pleadings or in formal
proceedings, we will abstain from disparaging personal remarks or acrimony toward such
participants and treat adverse witnesses and parties with fair consideration. We will
encourage our clients to act civilly and respectfully to all participants in the legal process.
4. We will not encourage or authorize any person under our control to engage in conduct that
would be inappropriate under these standards if we were to engage in such conduct.
5. We will not bring the profession into disrepute by making unfounded accusations of
impropriety or making ad hominem attacks on counsel, and, absent good cause, we will
not attribute bad motives or improper conduct to other counsel.
6. While we owe our highest loyalty to our clients, we will discharge that obligation in the
framework of the judicial system in which we apply our learning, skill, and industry in
accordance with professional norms. In this context, we will strive for orderly, efficient,
ethical, fair, and just disposition of litigation as well as disputed matters that are not, or not
yet, the subject of litigation, and for the efficient, ethical and fair negotiation and
consummation of business transactions.
7. The foregoing General Principles apply to all aspects of legal proceedings, both in the
presence and outside the presence of a court or tribunal.
SCHEDULING MATTERS:
8. We will endeavor to schedule dates for trials, hearings, depositions, meetings, negotiations,
conferences, vacations, seminars, and other functions to avoid creating calendar conflicts
for other participants in the legal process, provided our clients' interests will not be
adversely affected.
9. We will notify other counsel and, if appropriate, the Court or other persons, at the earliest
possible time when hearings, depositions, meetings, or conferences need to be canceled or
postponed. Early notice avoids unnecessary travel and expense and may enable the Court
and the other participants in the legal process to use the previously reserved time for other
matters.
10. We will agree to reasonable requests for extensions of time and for waiver of procedural
formalities provided our clients' interests will not be adversely affected.
11. We will not request an extension of time for the purpose of unjustified delay.
PRINCIPLES PARTICULARLY APPLICABLE TO LITIGATION PROCEDURAL
AGREEMENTS:
12. We will confer with opposing counsel about procedural issues that arise during the course
of litigation, such as requests for extensions of time, discovery matters, pre-trial matters,
and the scheduling of meetings, depositions, hearings, and trial. We will seek to resolve
by agreement such procedural issues that do not require court order. For those that do, we
will seek to reach agreement with opposing counsel before presenting the matter to court.
13. We accept primary responsibility, after consultation with the client, for making decisions
about procedural agreements. We will explain to our clients that cooperation between
counsel in such matters is the professional norm and may be in the client's interest. We
will explain the nature of the matter at issue in any such proposed agreements and explain
how such agreements do not compromise the client's interests.
DISCOVERY:
14. We will not use any form of discovery or discovery scheduling for harassment, unjustified
delay, to increase litigation expenses, or any other improper purpose.
15. We will make good faith efforts to resolve by agreement any disputes with respect to
matters contained in pleadings and discovery requests and objections.
16. We will not engage in any conduct during a deposition that would not be appropriate if a
judge were present. Accordingly, we will not obstruct questioning during a deposition or
object to deposition questions, unless permitted by the applicable rules to preserve an
objection or privilege and we will ask only those questions we reasonably believe are
appropriate in discovery under the applicable rules.
17. We will carefully craft document production requests so they are limited to those
documents we reasonably believe are appropriate under the applicable rules. We will not
design production requests for the purpose of placing an undue burden or expense on a
party.
18. We will respond to document requests reasonably. We will not interpret the request in an
artificially restrictive manner to avoid disclosure of relevant and non-privileged
documents. We will not produce documents in a manner designed to hide or obscure the
existence of particular documents.
19. We will carefully craft interrogatories so they are limited to those matters we reasonably
believe are appropriate under the applicable rules, and we will not design them for the
purpose of placing an undue burden or expense on a party.
20. We will respond to interrogatories reasonably. We will not interpret interrogatories in an
artificially restrictive manner to avoid disclosure of relevant and non-privileged
information.
21. We will base our discovery objections on a good faith belief in their merit. We will not
object solely for the purpose of withholding or delaying the disclosure of properly
discoverable information.
22. During discovery, we will not engage in acrimonious conversations or exchanges with
opposing counsel, parties, or witnesses. We will advise our clients to conduct themselves
in accordance with these provisions. We will not engage in undignified or discourteous
conduct which degrades the legal proceeding.
SANCTIONS:
23. We will not seek court sanctions or disqualification of counsel unless reasonably justified
by the circumstances after conducting a reasonable investigation, which includes
attempting to confer with opposing counsel.
LAWYERS' DUTIES TO THE COURT:
24. We recognize that the public's perception of our system of justice is influenced by the
relationship between lawyers and judges, and that judges perform a symbolic role. At the
same time, lawyers have the right and, at times, the duty to be critical of judges and their
rulings. Thus, in all communications with the court, we will speak and write civilly. In
expressing criticism of the court, we shall seek to use language that minimizes disrespect
for courts and the system of justice.
25. We will not engage in conduct that offends the dignity and decorum of judicial
proceedings, brings disorder or disruption to the courtroom, or undermines the image of
the legal profession.
26. We will advise clients and witnesses to act civilly and respectfully toward the court,
educate them about proper courtroom decorum, and, to the best of our ability, prevent them
from creating disorder or disruption in the courtroom.
27. We will not knowingly misrepresent, mischaracterize, misquote, or miscite facts or
authorities.
28. We will not degrade the intelligence, ethics, morals, integrity or personal behavior of
others, unless such matters are legitimately at issue in the proceeding.
29. We will act and speak civilly and respectfully to the judge's staff, the courtroom staff, and
other court personnel with an awareness that they, too, are an integral part of the judicial
system. We will also advise clients and witnesses to act civilly and respectfully toward
these participants in the legal process.
30. We recognize that judicial resources are scarce, that court dockets are crowded, and that
justice is undermined when cases are delayed and/or disputes remain unresolved.
Therefore, we will be considerate of the time constraints and pressures on the court and
court staff inherent in their efforts to administer justice.
31. We recognize that tardiness and neglect show disrespect to the court and the judicial
system. Therefore, we will be punctual and prepared for all court appearances so that all
hearings, conferences, and trials may commence on time and proceed efficiently. We will
also educate clients and witnesses concerning the need to be punctual and prepared. If
delayed, we will promptly notify the court and counsel, if at all possible.
32. Before dates for hearing or trials are set, or, if that is not feasible, immediately after such a
date has been set, we will attempt to verify the availability of necessary participants and
witnesses so we can promptly notify the court of any likely problems.
33. We will avoid ex parte communications with the court, including the judge's staff, on
pending matters in person (whether in social, professional, or other contexts), by telephone,
and in letters and other forms of written communication, unless such communications
relate solely to scheduling or other non-substantive administrative matters, or are made
with the consent of all parties, or are otherwise expressly authorized by law or court rule.
JUDGES' DUTIES TO LAWYERS:
34. We will be courteous, respectful, and civil to lawyers, parties, and witnesses. We will
maintain control of the proceedings, recognizing that judges have both the obligation and
the authority to ensure that judicial proceedings are conducted with dignity, decorum, and
courtesy.
35. We will not employ hostile, demeaning, or humiliating words in opinions or in written or
oral communications with lawyers, parties, or witnesses.
36. We will be punctual in convening hearings, meetings, and conferences; if delayed, we will
notify counsel as promptly as possible.
37. In scheduling hearings, meetings, and conferences, we will be considerate of time
schedules of lawyers, parties, and witnesses and of other courts and tribunals. We will
inform counsel promptly of any rescheduling, postponement, or cancellation of hearings,
meetings, or conferences.
38. While endeavoring to resolve disputes efficiently, we will be considerate of the time
constraints and pressures imposed on lawyers by the exigencies of litigation practice. We
will make all reasonable efforts promptly to decide matters presented to us for decision.
39. We recognize that a lawyer has a right and duty to present a cause fully and properly, and
that a litigant has a right to a fair and impartial hearing. Within the practical limits of time,
we will allow lawyers to present proper arguments, to make a complete and accurate record,
and to present a case free from unreasonable or unnecessary judicial interruption.
40. We will not impugn the integrity or professionalism of any lawyer on the basis of the clients
whom or the causes which a lawyer represents.
41. We will do our best to ensure that court personnel act civilly toward lawyers, parties and
witnesses.
42. At an appropriate time and in an appropriate manner, we will bring to a lawyer's attention
conduct which we observe that is inconsistent with these standards.
JUDGES' DUTIES TO EACH OTHER:
43. We will treat other judges with courtesy and respect.
44. In written opinions and oral remarks, we will refrain from personally attacking,
disparaging, or demeaning other judges.
45. We will endeavor to work cooperatively with other judges with respect to the availability
of lawyers, witnesses, parties, and court resources.
PRINCIPLES PARTICULARLY APPLICABLE TO REPRESENTATION INVOLVING
BUSINESS TRANSACTIONS AND OTHER NEGOTIATIONS
46. We will not knowingly misrepresent or mischaracterize facts or authorities or affirmatively
mislead another party or its counsel in negotiations.
47. We will not engage in personal vilification or other abusive or discourteous conduct in
negotiations. We will not engage in acrimonious exchanges with opposing counsel or
parties at the negotiating table. We will encourage our clients to conduct themselves in
accordance with these principles.
48. We will honor all understandings with, and commitments we have made to, other attorneys.
We will stand by proposals we have made in negotiations unless newly received
information or unforeseen circumstances provide a good faith basis for rescinding them,
and we will encourage our clients to conduct themselves in accordance with this principle.
49. We will not make changes to written documents under negotiation in a manner calculated
to cause the opposing party or counsel to overlook or fail to appreciate the changes. We
will clearly and accurately identify for other counsel and parties all changes that we have
made in documents submitted to us for review.
50. In memorializing oral agreements the parties have reached, we will do so without making
changes in substance and will strive in good faith to state the oral understandings accurately
and completely. In drafting proposed agreements based on letters of intent, we will strive
to draft documents that fairly reflect the agreements of the parties.
CRIMINAL
