No “Substantial Ground for Difference of Opinion” for § 1292 Purposes Where 14 District Courts in Circuit Have Addressed the Issue

From In re Regions Morgan Keegan ERISA Litig., 741 F. Supp. 2d 844 (W.D. Tenn. 2010):

In deciding whether to grant an interlocutory appeal [under 28 U.S.C. § 1292], the Court considers three factors: (1) whether the order involves a "controlling question of law"; (2) whether there is "substantial ground for difference of opinion" about the correctness of the decision; and (3) whether an immediate appeal would "materially advance the ultimate termination of the litigation." *** An interlocutory appeal should "be used only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation."*** There must be "exceptional circumstances [to] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978)***.

A "difference of opinion" is established "when (1) the issue is difficult and of first impression; (2) a difference of opinion exists within the controlling circuit; or (3) the circuits are split on the issue." Gaylord Entm't Co. v. Gilmore Entm't Group, 187 F. Supp. 2d 926, 956 (M.D. Tenn. 2002) (citation omitted). At least fourteen district courts in this Circuit have addressed this issue. It is not one of first impression. District courts in this Circuit have overwhelmingly declined to apply the presumption of prudence at the pleading stage, many following the reasoning in In re Diebold ERISA Litigation, where the Court noted that "the Sixth Circuit gave no indication at all [in Kuper] that it was creating a pleading standard" and that "[c]ourts have consistently rejected application of Kuper at the pleading stage." No. 5:06 CV 0170, 2008 U.S. Dist. LEXIS 42746, 2008 WL 2225712, at *9 (N.D. Ohio May 28, 2008) (citations omitted)***.

There is no split in authority. Therefore, there is no substantial ground for difference of opinion about whether the presumption of prudence applies at the pleading stage.

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