exception to Younger abstention. See J. & W. Seligman, 2007 WL 2822208, at *4 n. 4 (“Although the Second Circuit has not spoken on this issue, it is likely that it would adopt the [“facially conclusive”] exception.”); Terminix Int’l Co. v. Rocque, 210 F.Supp.2d 97, 102 (D.Conn.2002) (assuming the Second Circuit would follow other circuits in applying the “facially conclusive” exception). The “facially conclusive” exception to Younger abstention applies only where there exists no unresolved questions of fact or law in deciding the preemption question. See NOPSI, 491 U.S. at 367, 109 S.Ct. 2506 (“[W]hat requires further factual inquiry can hardly be deemed ‘flagrantly’ unlawful for purposes of a threshold abstention determination.”); Colonial Life & Accident Ins., 572 F.3d at 29 (<HOLDING>). In particular, courts have found the
holding it is a question of fact holding preemption defense not facially conclusive when it turned on an unsettled question of law holding that statements at plea hearing that facially demonstrate pleas validity are conclusive absent compelling reason why they should not be holding that trial courts resolution of disputed facts are conclusive on appeal when supported by substantial evidence holding that an expert opinion on a question of law is inadmissible