The opinion of the court was delivered by: Sweet, District Judge.
Defendant Donaldson, Lufkin & Jenrette Securities Corporation
("DLJ") has moved for an order certifying an interlocutory appeal
to the Second Circuit in six related securities fraud actions
entitled Primavera Familienstiftung v. Askin, No. 95 Div. 8905
(the "Primavera Action"), ABF Capital Mgmt. v. Askin Capital
Mgmt., No. 96 Civ. 2978 (the "ABF Action"), Montpellier
Resources Ltd. v. Askin Capital Mgmt., No. 97 Civ. 1856 (the
"Montpellier Action"), Johnston v. Askin Capital Mgmt., 97 Civ.
4335 (the "Johnston Action"), Bambou Inc. v. Askin, No. 98 Civ.
6178 (the "Bambou Action"), and AIG Managed Market Neutral Fund
v. Askin Capital Mgmt., No. 98 Civ. 7497 (the "AIG Action"),
pursuant to 28 U.S.C. § 1292(b).*fn1 For the reasons set forth
below, the motion is denied.
The parties to the ABF, Primavera, Montpellier, and AIG Actions
are set forth in ABF Capital Mgmt. v. Askin Capital Mgmt.,
L.P., 957 F. Supp. 1308 (S.D.N.Y. 1997) ("ABF I"), Primavera
Familienstiftung v. Askin, 178 F.R.D. 405 (S.D.N.Y. 1998), and
AIG Managed Market Neutral Fund v. Askin Capital Mgmt., L.P.,
197 F.R.D. 104 (S.D.N.Y. 2000). The parties to the Johnston and
Bambou Actions, while not separately set forth in this Court's
previous opinions, were, like the plaintiffs in the other
actions, shareholders and/or limited partners in the same hedge
funds, as described in Primavera Familienstifung v. Askin,
130 F. Supp.2d 450 (S.D.N.Y. 2001). Familiarity with these previous
opinions is presumed.
In an opinion dated February 5, 2001 (the "Summary Judgment
Opinion"), this Court denied in part and granted in part several
summary judgment motions in the instant actions, as well as in a
seventh related action entitled Granite Partners, L.P. v. Bear
Stearns & Co., Inc., No. 96 Civ. 7874 (the "Funds Action"). See
Primavera, 130 F. Supp.2d 450.
On February 22, 2001, Kidder filed the instant motion, and on
March 1, 2001, DLJ joined in that motion. The plaintiffs in the
ABF Action (the "ABF Plaintiffs") opposed the motion, and
subsequently the plaintiffs in the other five actions joined that
opposition. The matter was marked fully submitted on March 21,
I. The Standard For Certification Under § 1292(b)
Interlocutory appeals under Section 1292(b) are an exception to
the general policy against piecemeal appellate review embodied in
the final judgment rule. Since the statute was enacted in 1958,
the Second Circuit has repeatedly emphasized that a district
court is to "exercise great care in making a § 1292(b)
certification." Westwood Pharmaceuticals, Inc. v. National Fuel
Gas Dist. Corp., 964 F.2d 85, 89 (2d Cir. 1992); see also
Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir.
1990). Certification is only warranted in "exceptional cases,"
where early appellate review "might avoid protracted and
expensive litigation." Telectronics Proprietary, Ltd. v.
Medtronic, Inc., 690 F. Supp. 170, 172 (S.D.N.Y. 1987); see also
German, 896 F. Supp. at 1398. Section 1292(b) was not intended
"to open the floodgates to a vast number of appeals from
interlocutory orders in ordinary litigation" Telectronics, 690
F. Supp. at 172, or to be a "vehicle to provide early review of
difficult rulings in hard cases." German, 896 F. Supp. at 1398;
see also Abortion Rights Mobilization, Inc. v. Regan,
552 F. Supp. 364, 366 (S.D.N.Y. 1982); McCann v. Communications
Design Corp., 775 F. Supp. 1506, 1534 (D.Conn. 1991).
The institutional efficiency of the federal court system is
among the chief concerns underlying Section 1292(b). See Forsyth
v. Kleindienst, 599 F.2d 1203 (3d Cir. 1979). The efficiency of
both the district court and the appellate court are to be
considered, and the benefit to the district court of avoiding
unnecessary trial must be weighed against the inefficiency of
having the Court of Appeals hear multiple appeals in the same
case. See Harriscom Svenska AB v. Harris Corp., 947 F.2d 627,
631 (2d Cir. 1991); see generally 16 Charles A. Wright et
al., 16 Federal Practice and Procedure § 3930 (2d ed. 1996).
In determining whether a controlling question of law exists the
district court should consider whether: reversal of the district
court's opinion could result in dismissal of the action; reversal
of the district court's opinion, even though not resulting in
dismissal, could significantly affect the conduct of the action;
or, the certified issue has precedential value for a large number
of cases. See Klinghoffer, 921 F.2d at 24-25; In re Oxford
Health Plans, Inc., 182 F.R.D. 51, 54-55 (S.D.N.Y. 1998).
Immediate appeal may be considered to advance the ultimate
termination of the litigation if "`appeal promises to advance the
time for trial or to shorten the time required for trial.'" In
re Oxford, 182 F.R.D. at 53 (quoting 16 Charles A. Wright &
Arthur Miller, Federal Practice and Procedure § 3930 at 432 (2d
ed. 1996)). However, the advancement must be "material,"
28 U.S.C. § 1292(b); see In re Duplan, 591 F.2d at 148 n. 11
("`The critical requirement is that [an interlocutory appeal]
have the potential for substantially ...