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From Antitrust Law Daily, December 9, 2014

Supreme Court considers appellate court jurisdiction in consolidated LIBOR manipulation action

By Linda O’Brien, J.D., LL.M.

The U.S. Supreme Court today heard oral arguments in the case of Gelboim v. Credit Suisse Group AG (Dkt. 13-1174) regarding when the dismissal of a single action consolidated with similar LIBOR manipulation action was an appealable final order.

At issue is a decision of the Second Circuit determining that it lacked appellate jurisdiction over the appeal of a district court decision, which rejected an action brought by bond purchasers against various financial institutions for allegedly conspiring to manipulate LIBOR. The case was consolidated with other LIBOR-related class actions for pretrial purposes. The Second Circuit dismissed Ellen Gelboim’s appeal on the ground that a final order had not been issued by the district court, since the order did not dispose of all claims in the consolidated action. The question posed in the bond purchasers’ petition was: “Whether and in what circumstances is the dismissal of an action that has been consolidated with other suits immediately appealable?”

Thomas C. Goldstein of Goldstein & Russell, P.C. argued for the petitioners, Ellen Gelboim and Linda Zacher. Seth P. Waxman of Wilmer Cutler Pickering Hale and Dorr LLP presented the argument for the respondents, Bank of America, Barclays Bank, Citibank, Credit Suisse Group, Deutsche Bank, HSBC Bank, JPMorgan Chase Bank, Lloyds Banking Group, Royal Bank of Canada, The Royal Bank of Scotland Group, The Bank of Tokyo-Mitsubshi UFJ, and UBS.

In his argument, Goldstein emphasized that from the earliest days of the nation’s jurisdictional statutes, the district court’s dismissal of the suit would be an appealable order under the Final Judgment Rule. Goldstein contended that the dismissal was appealable for three reasons: (1) a judgment was entered in the action, (2) no judgment was entered in the multidistrict litigation (MDL), and (3) Federal Rule of Civil Procedure 54(b) did not apply, since the whole action was dismissed.

In response to concerns that the petitioners’ position would produce interlocutory appeals, Goldstein pointed out that district courts have the discretion to enter a partial final judgment under Rule 54(b) or avoid entering a final judgment in individual actions under Rule 58(b). Goldstein noted that the distinct feature of the case was that the district court consciously decided to dismiss in its entirety the individual actions. Chief Justice John Roberts questioned whether the 150-day provision under Rule 58 (as to when a judgment is considered entered) applied if, in fact, the district court had dismissed all of the claims.

Justice Anthony Kennedy noted that, if the petitioners were asking for “furtive measures,” then the court should face up the 150-day issue right away and adopt the respondents’ position. Justice Ruth Bader Ginsburg questioned Goldstein’s arguments – stating that the appellate court determination that the court has no jurisdiction was very different from the petitioners’ position that the courts have discretion.

Waxman began his argument by stating that the petitioners’ position requires immediate seriatim piecemeal appeals. When questioned by Justice Sonia Sotomayor as to when the petitioners’ appeal period began to run, Waxman responded that the appeal period began when all of the other consolidated cases were resolved or transferred. Justice Sotomayor noted that the petitioners were not appealing from a judgment entered on behalf or against other parties.

In response to Justice Elena Kagan’s inquiry as to what was the issue with allowing the petitioners to appeal, Waxman noted that there were inefficiencies in piecemeal appeals and that piecemeal appeals are generally disfavored. Further, Waxman contended that there were no cases in the 46 years of MDL litigation where any party in the petitioners’ position had to wait an inordinate amount of time for an appeal since the courts can exercise discretion under Rule 54(b).

In his rebuttal, Goldstein noted that the petitioners’ position – a judgment entered in an individual action is appealable – is the rule in an overwhelming majority of the circuits. He also pointed out that there was no reason for the Court to cause confusion in the law with respect to the meaning of a final judgment.

Attorneys: Karen Lisa Morris (Morris and Morris LLC), David H. Weinstein (Weinstein Kitchoff & Asher LLC), and Thomas C. Goldstein (Goldstein & Russell, P.C.) for Ellen Gelboim and Linda Zacher. Seth P. Waxman (Wilmer Cutler Pickering Hale and Dorr LLP) for Bank of America, Barclays Bank, Citibank, Credit Suisse Group, Deutsche Bank, HSBC Bank, JPMorgan Chase Bank, Lloyds Banking Group, Royal Bank of Canada, The Royal Bank of Scotland Group, The Bank of Tokyo-Mitsubshi UFJ, and UBS.

Companies: Bank of America, N.A.; Barclays Bank plc; Citibank, N.A.; Credit Suisse Group AG; Deutsche Bank AG; HSBC Bank plc; JPMorgan Chase Bank, N.A.; Lloyds Banking Group plc; Royal Bank of Canada; The Royal Bank of Scotland Group plc; The Bank of Tokyo-Mitsubshi UFJ, Ltd.; UBS AG.

MainStory: TopStory Antitrust

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