On January 21, 2015, the U.S. Supreme Court issued its decision in Gelboim v. Bank of America Corp., No. 13-1174, a case involving the timing for an appeal of an individual case that has been dismissed within a consolidated multidistrict litigation (“MDL”) proceeding. At issue was when the plaintiffs could appeal the district court’s order dismissing their complaint in light of the fact that their case had been consolidated for pretrial proceedings in an MDL with approximately 60 other cases. The plaintiffs had sought an immediate appeal, but the lower courts had ruled that any appeal could be taken only at the conclusion of the MDL proceedings.
Justice Ginsburg, writing for a unanimous court, explained that 28 U.S.C. § 1407 provides for the transfer of related civil actions for consolidated pretrial proceedings from the several district courts in which they are filed to a single district court. The Court reasoned that, while such transfer promotes the “just and efficient conduct of such actions,” the individual cases transferred to the MDL court “retain their separate identities” for purposes of finality under 28 U.S.C. § 1291.
The Court noted that Section 1291 gives the courts of appeals jurisdiction over appeals from “all final decisions of the district courts.” The Court then held that the order dismissing the plaintiffs’ complaint “removed them from the consolidated proceeding, thereby triggering their right to appeal under § 1291.”
The Court recognized that an order dismissing “in its entirety” one or more cases in the MDL also could dismiss only certain of the plaintiffs’ claims in other cases still pending in the MDL. According to the Court, Federal Rule of Civil Procedure 54(b), which allows for an appeal of an interlocutory order adjudicating some—but not all—of the claims in a given case, “attends to this concern” and could enable such plaintiffs in still-pending MDL cases to pursue immediate appellate review.
BABC attorneys authored an amicus brief on behalf of the U.S. Chamber of Commerce, supporting the respondents’ position and arguing that the Court should adopt a flexible approach to the timing of an appeal when an individual case in an MDL has been dismissed. The Chamber argued that efficiency is the goal of MDL consolidation, and consequently that any appeal should be taken only at the conclusion of those MDL pretrial proceedings. While the Court concluded that Section 1291’s “core application is to rulings that terminate an action” and thus afforded the plaintiffs an immediate appeal, the Court acknowledged that Section 1291 does provide for such “practical” considerations. Importantly, the Court did not decide whether an order dismissing one of multiple cases that had been consolidated for “all purposes”—and not just for pretrial proceedings—would be immediately appealable.