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IN RE NASDAQ MKT. MAKERS ANTITRUST LITIG.

September 24, 1996

IN RE: NASDAQ MARKET MAKERS ANTITRUST LITIGATION; ROBERT KEVIN TISDALE and LILLIAN A. TISDALE, Plaintiffs, - against - A.G. EDWARDS & SONS, et al., Defendants.


The opinion of the court was delivered by: SWEET

 Sweet, D. J.

 For the reasons set forth below, the motion will be denied.

 The Parties

 The Tisdales, husband and wife, are residents of Montgomery County, Alabama, who purchased securities traded on the NASDAQ exchange.

 Defendants -- A.G. Edwards & Sons, Inc.; Alex. Brown & Sons, Incorporated; Cantor Fitzgerald & Co.; Cowen & Co.; CS First Boston Corporation; Donaldson, Lufkin & Jenrette Securities Corporation sued herein as Donaldson, Lufkin & Jenrette, Inc.; Hambrecht & Quist L.L.C.; Herzog, Heine, Geduld, Inc.; J. C. Bradford & Co.; Jeffries & Company, Inc.; EVEREN Securities, Inc. sued herein as Kemper Securities Group, Inc.; Kidder, Peabody & Co. Incorporated; Legg Mason Wood Walker, Incorporated; Lehman Brothers Inc.; Mayer & Schweitzer, Inc.; Merrill Lynch, Pierce, Fenner & Smith, Inc.; Montgomery Securities; Morgan Stanley & Co., Incorporated; Nash, Weiss & Co.; OLDE Discount Corporation; Oppenheimer & Co., Inc.; Paine Webber, Incorporated; Piper Jaffray Inc.; Prudential Securities Incorporated; Robertson, Stephens & Company; The Robinson-Humphrey Company Inc.; Salomon Brothers Inc.; Sherwood Securities Corp.; Smith Barney Inc.; Troster Singer; UBS Securities Inc.; and Weeden & Co. L.P. -- are market-makers in securities traded on the NASDAQ exchange.

 The parties, facts, and prior proceedings in In re NASDAQ Market-Makers Antitrust Litigation, MDL 1023, are set forth in this Court's previous opinions in this action, In re NASDAQ Market-Makers Antitrust Litig., 929 F. Supp. 723 (S.D.N.Y. 1996); In re NASDAQ Market-Makers Antitrust Litig., 929 F. Supp. 174 (S.D.N.Y. 1996); In re NASDAQ Market-Makers Antitrust Litig., 1996 U.S. Dist. LEXIS 4969, No. 94 Civ. 3996, 1996 WL 187409 (S.D.N.Y. April 18, 1996); In re NASDAQ Market-Makers Antitrust Litig., 164 F.R.D. 346 (S.D.N.Y. 1996); In re NASDAQ Market-Makers Antitrust Litig., 894 F. Supp. 703 (S.D.N.Y. 1995), familiarity with which is assumed.

 Background and Prior Proceedings

 Plaintiffs filed this class action in the Circuit Court of Montgomery County, Alabama (the "Alabama State Court"), on December 15, 1995. On January 12, 1996, all Defendants joined in the removal of the action to the Alabama Federal Court, where the action was assigned to the Honorable Ira DeMent. On January 16, 1996, Plaintiffs applied for an order to show cause why the case should not be remanded (the "Remand Motion"). The motion was fully briefed to Judge DeMent by the parties. On April 4, 1996, prior to Judge DeMent's resolving the Remand Motion, the JPML ordered the case transferred to this Court for coordinated pretrial proceedings with In re NASDAQ.

 On April 19, 1996, the Tisdales wrote to this Court, directing its attention to the pendency of the Remand Motion and attaching photocopies of the briefs and related papers submitted to Judge DeMent. The letter was deemed to be a motion before this Court for remand. On June 26, 1996, this Court issued an Order denying the motion for remand.

 On August 7, 1996, the Tisdales filed the instant motion for certification of an interlocutory appeal of the Order, pursuant to 28 U.S.C. § 1292(b). Plaintiffs' motion was considered fully submitted on August 28, 1996.

 Discussion

 Section 1292(b) provides that a district court may certify an interlocutory order for appeal if it is of the opinion that: (1) the order "involves a controlling question of law" (2) "as to which there is substantial ground for difference of opinion," and (3) an immediate ...


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