Fun with Civil Procedure. Filing an Appeal-Quando, Quando, Quando?
Ever lose sleep about the interplay between 28 U.S.C. § 1291, (appeals from final decisions), Fed. Rule Civ. Pro. 54(b), (appeals from separate claims) and 28 U.S. C. § 1407 (cases centralized in an MDL proceeding)? Now you can rest assured. The question of when to appeal a decision disposing of a case in its entirely, but during the pendency of a still ongoing multi-district litigation, has been resolved. In Gelboim v. Bank of America Corp., No. 13-1174, decided January 21, 2015, the Supreme Court unanimously ruled that a party in an MDL proceeding can file an appeal as of right under § 1291 even during the pendency of an ongoing MDL, so long as the decision appealed from disposes of all of the claims in that case.
The Court considered whether a case centralized in an MDL retains its separate identity or, as the banks had maintained, whether the case should be considered as part of a single unit. Under the banks' view, an appeal as of right under § 1291 would not accrue until the entire MDL consolidation ends.
In Gelboim, two individual investors filed a class action complaint against banks alleging that they violated the federal antitrust act by conspiring to fix an interest rate called LIBOR. The case was centralized in a multi-district litigation where some 60 other class action suits were centralized under § 1407. [Disclosure: I represent a party in the MDL proceeding]. Many of the other cases also asserted antitrust violations, but those complaints asserted other claims as well.
The banks' motion to dismiss the antitrust claims asserted in all of the centralized cases was granted. That decision, though, was not final as to those plaintiffs who had filed complaints asserting antitrust and non-antitrust claims. Naturally, those plaintiffs seeking review of the antitrust dismissal would need to seek leave to appeal under Rule 54(b). But what about Gelboim, who had only asserted the one antitrust claim and lost?
The Court rightly issued a sensible, bright-line ruling on the important issue of when to appeal. When the MDL judge issues a decision disposing of all of the issues in an MDL case, that case becomes immediately appealable under § 1291. Other cases, affected by the decision but with remaining claims, would have to seek review under Rule 54(b).
So, to answer the question raised in the Italian pop bossa nova mentioned in the heading, when, when, when, file the appeal now, now, now.