No Appellate Review of Denial of Remand on Basis that Bankruptcy Removal Statute Trumps Anti-Removal Provision of Securities Act — Extent of Reliance on Unpublished Opinions

From N.J. Dep’t of Treasury v. Fuld, 2010 U.S. App. LEXIS 9991 (3d Cir. May 17, 2010):

The State of New Jersey, Department of Treasury, Division of Investment ("New Jersey") appeals the District Court's order denying its motion to remand the action it brought under the Securities Act of 1933, a statute that specifically precludes removal, which defendants had removed to federal court. Defendants/Appellees Richard S. Fuld and various other officers and directors of Lehman Brothers Holdings, Inc., (collectively, "the Directors") have filed a motion to dismiss the appeal for lack of appellate jurisdiction. We proceed to examine our jurisdiction over the District Court's order denying remand. ***

New Jersey manages the pension and retirement plan funds for over 700,000 of its active and retired state employees. In April and June of 2008, New Jersey purchased over $180 million of investment securities from Lehman Brothers Holdings, Inc. ("Lehman") consisting of preferred stock and common stock in Lehman. Three months after New Jersey's June purchases of these securities, Lehman filed for bankruptcy protection.

In March 2009, New Jersey filed a complaint in the Superior Court of New Jersey against the Directors and Ernst & Young LLP, an accounting firm, alleging violation of state law and the federal Securities Act of 1933***.

New Jersey's complaint was one of dozens filed against the Directors by investors seeking to recover their investment losses. Those actions have been consolidated by the Judicial Panel on Multidistrict Litigation and are pending in the Southern District of New York.***

The Directors removed New Jersey's action to federal court, asserting that it was "related to" the Lehman bankruptcy and hence removable under 28 U.S.C. §§ 1334(b) and 1452(a). New Jersey filed a motion to remand, arguing that section 22(a) of the Securities Act prohibits the removal from state courts of cases arising under the Act. See 15 U.S.C. § 77v(a) ("Except as provided in section 77p(c) of this title [relating to class actions], no case arising under this subchapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States."). After considering the conflict between the Bankruptcy Code (which allows removal) and the Securities Act (which prohibits it), the District Court denied New Jersey's motion to remand, finding persuasive the decision of the Second Circuit that the bankruptcy removal statute, 28 U.S.C. §§ 1334(b) and 1452(a), trumps the anti-removal provision of the Securities Act. See State of N.J., Dep't of Treasury, Div. of Inv. v. Fuld, No. 09-1629 (AET), 2009 WL 1810356, at *2 (D.N.J. June 25, 2009) (citing Cal. Pub. Employees' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86 (2d Cir. 2004), cert. denied, 543 U.S. 1080 (2005)). The statutory conflict raises an issue of first impression for our court, and to date the Second Circuit in WorldCom is the only court of appeals to have addressed it. 368 F.3d at 90. ***

[Collateral Order Doctrine]

To be appealable under the collateral order doctrine, an order must "[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). "[A] failure to meet any one of the three factors renders the doctrine inapplicable as a basis for appeal, no matter how compelling the other factors may be." ***

The parties in this appeal agree that the first two Cohen criteria are satisfied: the District Court's order "conclusively determine[s] the disputed question" and it "resolve[s] an important issue completely separate from the merits of the action." *** The parties dispute only whether the right at issue is "effectively unreviewable" after a final judgment.... New Jersey argues that the District Court's order denying remand is "effectively unreviewable" because the interest sought to be protected — namely, its interest in having the Securities Act claim heard in a New Jersey state court — will be lost if the case proceeds to final judgment. According to New Jersey, "[t]he matter at issue . . . flies directly in the face of Congress's express intent to prevent removal of 1933 Securities Act cases filed in state court to federal court," *** and without interlocutory review "New Jersey . . . will be forced into a web of complex, time consuming and costly bankruptcy proceedings"***. New Jersey contends that "an appeal that voids every order entered in the case will be too late and years of expensive litigation will have been fruitless." ***

In Mohawk, the Court held that the court of appeals had no jurisdiction under the collateral order doctrine over the interlocutory appeal by a defendant/employer of the trial court's order requiring it to disclose information that it sought to protect as privileged. 130 S. Ct. at 603. The Supreme Court, speaking through Justice Sotomayor, "acknowledge[d] the importance of the attorney-client privilege" as "one of the oldest recognized privileges for confidential communications," *** but nonetheless held that the disclosure of privileged materials was not "effectively unreviewable" after final judgment because "[a]ppellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence" *** In those cases where "litigants [are] confronted with a particularly injurious or novel privilege ruling," the Court noted that litigants have "useful 'safety valves'" available to them, including interlocutory appeal of a certified order under 28 U.S.C. § 1292(b) and mandamus relief. ***

New Jersey's interlocutory appeal presents none of the[] considerations that have justified collateral order review. There is no separation of powers issue, *** nor are there claims of qualified immunity or state sovereign immunity***. Nor is this a criminal case in which appellate review after final judgment will impinge upon a constitutional right or render an issue moot. *** Rather, this is a civil case that involves a dispute over money. In that regard New Jersey is no different from the other investors whose securities lost value after the collapse of Lehman, many of which, like New Jersey, are state and local government investment funds.

If we lack collateral order jurisdiction to review the pretrial disqualification of defense counsel in a criminal case, which raises an issue of constitutional import,*** we fail to see how we have collateral order jurisdiction to review the District Court's order denying remand in this civil case***.

Apparently recognizing the dearth of authority supporting its position, New Jersey relies on a non-precedential opinion of this court for its statement that "an order denying remand is reviewable under the collateral order doctrine." Dieffenbach v. CIGNA, Inc., 310 F. App'x 504, 506 (3d Cir. 2009) (per curiam)***. As a non-precedential opinion, Dieffenbach is only as persuasive as its reasoning. Dieffenbach provides no reasoning relevant to the collateral order doctrine except a lone citation to Newcomer, which does not support collateral order review of an order denying remand. *** Even if we found the statement in Dieffenbach to be persuasive, we would not have cited it as authority. See 3d Cir. Internal Operating P. 5.7 ("The court by tradition does not cite to its not precedential opinions as authority.").

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