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10. Is the court of appeals likely to grant the interlocutory appeal?
The gasoline company filed a motion for summary judgment, which the district court denied. The district court certified in its order that the controlling matter of law in the case involved the proper interpretation of the federal act. The order also stated that the issue presented was a complex and novel question that was not yet settled by controlling authority, and substantial grounds, therefore, existed for a difference of opinion on the legal issue presented. The court stated that immediate appellate review would materially advance the ultimate termination of the litigation. The gasoline company then filed an interlocutory appeal.
Consumers who used a gasoline company's proprietary credit card to make purchases at gas stations filed a class action lawsuit against the gasoline company in federal court, alleging that the company masked the wrong digits on customers' receipts in violation of a federal act.
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An interlocutory review is discretionary and may be available when:
1. the trial court certifies in writing that the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; AND
2. the court of appeals agrees to allow the appeal. 28 U.S.C. § 1292(b).
A is correct. The court of appeals is likely to accept the interlocutory appeal because the district court properly applied each of the statutory requirements, including certifying that substantial grounds for differences in opinion existed regarding the controlling matter of law, which involved the interpretation of the federal statute. The district court also included the finding that immediate review would materially advance the ultimate termination of the case. As such, the court of appeals MAY, in its discretion, agree to allow the appeal because these requirements are met.
B is incorrect. This answer reaches the correct answer with the wrong legal reasoning. Although the court of appeals is likely to accept the interlocutory appeal, it is not because it MUST do so. Interlocutory appeals are discretionary, even if all the elements are satisfied. Accordingly, although the district court properly applied each statutory requirement, this does not automatically require that the appellate court consider the appeal.
C is incorrect. The district court applied the correct factors when certifying the appeal. As explained above, the court properly found that the order involved a controlling question of law, with a substantial ground for difference of opinion, and an immediate appeal from the order would materially advance the ultimate termination of the litigation.
D is incorrect. While it is true that leaving the case in its present posture will provide an opportunity for the parties to fully develop the facts and for the district court (and ultimately the court of appeals) to decide the issue presented by the interlocutory appeal, policies of judicial economy favor avoidance of protracted, costly litigation and of novel and complex issues, rather than embracing opportunities to prolong litigation.