Opt-Out Plaintiffs In ENHANCE Federal Securities Suits Will Agree To An Immediate Certifying Appeal

Apparently agreeing that the issue I discussed at the end of last month is worth hearing from the Third Circuit on, prior even to Merck’s having to answer the complaints, the plaintiffs have stipulated that the trial court ought to certify the potential time-bar question to the appellate court. [The graphic at right is from the settlement of the main federal securities class actions.]

So once again, the discovery/trial process for these opt-outs will be put on hold — for perhaps eight months — while this issue is briefed, argued and decided. We will likely have no news on the matter until next Spring, I’d guess. Here is the bit — from Friday’s filing:

. . . .On August 26, 2015, Your Honor entered Orders denying Defendants’ Motions to Dismiss on the ground that
Plaintiffs’ claims under Sections 10(b), 20(a), and 20A of the Securities Exchange Act of 1934 were barred by the applicable five-year statutes of repose.

Defendants believe that this threshold timeliness question should be certified to the Court of Appeals because it presents a “controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).

Enclosed for Your Honor’s consideration is a proposed Stipulated Order submitted on behalf of all parties that: (1) establishes a briefing schedule for a motion to this Court seeking certification of one or more controlling questions of law to the Third Circuit Court of Appeals pursuant to 28 U.S.C. § 1292(b); and (2) orders that Defendants need not file Answers to the Complaints pending resolution of the certification motion. If the Stipulated Order meets with Your Honor’s approval, we ask that it be entered.

We thank the Court for its consideration in this matter. . . .

Back to regular time, tomorrow — and. . . Onward, one an all — with a fine new week ahead!

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