to believe that the prejudice to Plaintiffs under the procedures outlined in our Order will be sufficient to require a retrial of the class claims if we were to be reversed on appeal.
Plaintiffs also argue that our Order has impermissibly modified the Settlement Agreement by mandating a different trial procedure and that the issue of whether we had the power to do so is a controlling question of law in this case. This argument not only suffers from the same flaw as Plaintiffs' argument that reversal would require a retrial of the class claims, but it also ignores our clear statement that the Settlement Agreement did not govern the disposition of the summary judgment motions before us. See Order at 7-10. Our Order did not change the Settlement Agreement; instead, it held that the Settlement Agreement did not apply to the circumstances before us.
On the other hand, both Settling Defendants and D&T are in rather different positions under our Order than they would be under the Settlement Agreement. Settling Defendants must try their contribution claim much sooner under our Order than under the Settlement Agreement. D&T may not maintain a contribution action at all. Both sets of parties, however, oppose certification. Furthermore, at the trial that will take place under our Order, both will have the opportunity to present all of the same evidence and arguments that they would present in a separate trial of cross-claims for contribution.
In order to demonstrate that an order involves a controlling question of law, a party seeking certification must demonstrate at the least that the order has an important effect on the conduct of the litigation. While our Order certainly changed the timing of the trial of the claims in this case, it did not deprive any of the parties of the opportunity to present all of the evidence and to make all of the arguments that each would have put forth under the procedure described in the Settlement Agreement. We accordingly find that our Order does not involve a controlling question of law.
Finally, the termination of this litigation would not be materially advanced by an appeal at this stage of the litigation. As we have already explained, the trial procedure we have ordered and the trial procedure set out in the Settlement Agreement do not differ in practical effect. The discovery necessary to try these claims and the evidence presented at trial are very similar, whichever procedure is used. Moreover, since the procedure provided in our Order involves one trial instead of two, it obviously will result more quickly in a final judgment on the entire controversy at the trial level. The chance is very slim that, even if we were incorrect in holding that the McDermott rule applies in this case, we would be ordered to retry the case if we were reversed. The Second Circuit has held that where an appeal is unlikely to result in retrial or to affect discovery significantly, certification for interlocutory appeal is not warranted. See Isra Fruit Ltd. v. Agrexco Agricultural Export Co. Ltd., 804 F.2d 24, 26 (2d Cir. 1986).
We are not convinced by Plaintiffs' argument that we should certify an interlocutory appeal in order to increase the pressure on D&T to settle. While settlement of this action is certainly a worthy goal, a party should not be able to manipulate the interlocutory appeal procedure to obtain a tactical advantage in settlement negotiations. Cf. Herold v. Braun, 671 F. Supp. 936, 938 n.1 (E.D.N.Y. 1987).
Furthermore, we are not persuaded by Plaintiffs' argument that we must grant an interlocutory appeal in order to facilitate the distribution of settlement proceeds to the class members. Plaintiffs contend that the continued validity of the Settlement Agreement is in doubt until the Second Circuit has affirmed or reversed our Order. They argue that, if we certify an interlocutory appeal of our Order, they will receive a determination of that issue much more expeditiously than if they must wait for final judgment at the trial level before appealing. Plaintiffs maintain that they should not distribute the proceeds until the continued validity of the Settlement Agreement has been conclusively established, because if the Second Circuit were to rescind the Settlement Agreement it would be impossible to reclaim the settlement proceeds from the class members. However, we are not asked to certify the question whether the Settlement Agreement is valid and there is no apparent reason why the Court of Appeals will consider that question sua sponte. In the trial that we have ordered, the validity of the Settlement Agreement will not be in issue, and we see no likelihood that any verdict that might be rendered in that trial will affect the proceeds to be distributed pursuant to the Settlement Agreement. Thus we see no reason why the distribution cannot proceed if Plaintiffs so desire.
Because Plaintiffs have not convinced us that our Order involves a controlling question of law or that an interlocutory appeal would materially advance the termination of this litigation, their motion to certify our Order for interlocutory appeal is denied.
Date: January 27, 1995
New York, New York
William C. Conner
Sr. United States District Judge