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    Garber Letter in Response To MLB's Interlocutory Appeal Request

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    The plaintiffs' lawyers wrote a letter to Judge Scheindlin opposing the MLB defendants' request to seek interlocutory review of the court's denial of their summary judgment motion. The letter argues that the requirements for certification of interlocutory appeal under 28 U.S.C. 1292(b) are not met: (1) immediate appeal would not avoid prolonged litigation as discovery is complete and other defendants would still proceed to trial; (2) there is no substantial doubt that the court's order was correct regarding the inapplicability of baseball's antitrust exemption to broadcasting; and (3) interlocutory appeal would result in piecemeal litigation, which is disfavored. The plaintiffs urge the court to deny

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    Garber Letter in Response To MLB's Interlocutory Appeal Request

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    The plaintiffs' lawyers wrote a letter to Judge Scheindlin opposing the MLB defendants' request to seek interlocutory review of the court's denial of their summary judgment motion. The letter argues that the requirements for certification of interlocutory appeal under 28 U.S.C. 1292(b) are not met: (1) immediate appeal would not avoid prolonged litigation as discovery is complete and other defendants would still proceed to trial; (2) there is no substantial doubt that the court's order was correct regarding the inapplicability of baseball's antitrust exemption to broadcasting; and (3) interlocutory appeal would result in piecemeal litigation, which is disfavored. The plaintiffs urge the court to deny

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    Filed August 15, 2014 with the Southern District of New York.

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    Garber Letter in Response to MLB's Interlocutory Appeal Request

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    The plaintiffs' lawyers wrote a letter to Judge Scheindlin opposing the MLB defendants' request to seek interlocutory review of the court's denial of their summary judgment motion. The letter argues that the requirements for certification of interlocutory appeal under 28 U.S.C. 1292(b) are not met: (1) immediate appeal would not avoid prolonged litigation as discovery is complete and other defendants would still proceed to trial; (2) there is no substantial doubt that the court's order was correct regarding the inapplicability of baseball's antitrust exemption to broadcasting; and (3) interlocutory appeal would result in piecemeal litigation, which is disfavored. The plaintiffs urge the court to deny

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    © All Rights Reserved
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    46 views3 pages

    Garber Letter in Response To MLB's Interlocutory Appeal Request

    Uploaded by

    ngrow9
    The plaintiffs' lawyers wrote a letter to Judge Scheindlin opposing the MLB defendants' request to seek interlocutory review of the court's denial of their summary judgment motion. The letter argues that the requirements for certification of interlocutory appeal under 28 U.S.C. 1292(b) are not met: (1) immediate appeal would not avoid prolonged litigation as discovery is complete and other defendants would still proceed to trial; (2) there is no substantial doubt that the court's order was correct regarding the inapplicability of baseball's antitrust exemption to broadcasting; and (3) interlocutory appeal would result in piecemeal litigation, which is disfavored. The plaintiffs urge the court to deny

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    of 3

    August 15, 2014

    Honorable Shira A. Scheindlin


    United States District Court
    Southern District of New York
    500 Pearl Street
    New York, NY 10007

    Re: Garber, et al. v. Office of the Commissioner of Baseball, et al.,12-cv-3704 (SAS)

    Dear Judge Scheindlin:

    We represent the plaintiffs in the above-captioned matter, and write in response to the
    MLB Defendants pre-motion letter expressing their intention to seek interlocutory review of the
    Courts denial of their motion for summary judgment. If the MLB Defendants file such a motion,
    Plaintiffs will oppose it.

    Appeals of interlocutory district court orders are governed by 28 U.S.C. 1292(b). To
    certify an opinion under section 1292(b), the district court must believe that its order involves a
    controlling question of law as to which there is a 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). In addition, leave to appeal is warranted only when the movant
    demonstrates the existence of exceptional circumstances to overcome the general aversion to
    piecemeal litigation and to justify a departure from the basic policy of postponing appellate
    review until after the entry of a final judgment. In re Madoff, 08-01789, 2010 WL 3260074, *1
    (S.D.N.Y. Aug. 6, 2010) (Scheindlin, J.) (internal quotation omitted). The decision to certify an
    order for interlocutory review lies within the district courts discretion and may be denied even if
    the Court finds that the moving party has met the section 1292(b) criteria. In re MTBE Prods.
    Liab. Litig., 00-1898, 2008 WL 2511038, *1 (S.D.N.Y. June 18, 2008) (Scheindlin, J.) (citing
    National Asbestos Workers Med. Fund v. Philip Morris, Inc., 71 F. Supp. 2d 139, 162-63
    (E.D.N.Y 1999)).

    HOWARD LANGER
    JOHN J. GROGAN*
    EDWARD A. DIVER
    IRV ACKELSBERG
    PETER LECKMAN


    _____
    JUDAH LABOVITZ
    OF COUNSEL

    PETER E. LECKMAN
    DIRECT DIAL (215) 320-0876
    [email protected]

    LANGER GROGAN & DIVER P.C.
    ATTORNEYS AT LAW

    1717 ARCH STREET
    SUITE 4130
    PHILADELPHIA, PA 19103

    PHONE: 215-320-5660
    FAX: 215-320-5703








    GEOFFREY C. HAZARD, JR.


    OF COUNSEL
    2263 CALIFORNIA STREET
    SAN FRANCISCO, CA 94115
    415-292-6535
    [email protected]

    *ALSO ADMITTED IN NEW JERSEY

    ALSO ADMITTED IN CALIFORNIA

    ADMITTED IN CALIFORNIA ONLY



    Case 1:12-cv-03704-SAS-MHD Document 318 Filed 08/15/14 Page 1 of 3

    Honorable Shira A. Scheindlin
    August 15, 2014
    Page 2

    The MLB Defendants cannot satisfy the section 1292(b) factors. As this Court has
    emphasized, interlocutory appeal is limited to extraordinary cases where appellate review might
    avoid protracted and expensive litigation. King Cnty v. IKB Deutsche Industriebank AG, 863 F.
    Supp. 2d 317, 320 (S.D.N.Y. 2012) (Scheindlin, J.) (internal quotation omitted). Given that they
    declined to invoke the baseball exemption until summary judgmentafter the completion of
    discoverythe MLB Defendants are in no position to argue that an interim appellate decision on
    the baseball exemption would avoid protracted and expensive litigation. If they believed the
    exemption was a pure matter of law intended to protect them from the burdens of litigation, they
    would have asserted the defense two years ago in their motion to dismiss.

    Even now, the MLB Defendants are not seeking protection from protracted and
    expensive litigation, because they are not seeking a stay of any pretrial proceedings. See MLB
    Defs Pre-Motion Letter, at 1 n.1. They are only seeking to delay trial. Even if that were a
    legitimate objective (and it is not), no other defendants have asserted this defense, and thus these
    cases would proceed to trial even if the interlocutory appeal were successful.

    Nor is there a substantial ground for difference of opinion as to the applicability of the
    exemption to broadcasting. To satisfy this element, the Court must find that there is substantial
    doubt that [its] order was correct. In re MTBE Prods Liab. Litig., 399 F. Supp. 2d 320, 323
    (S.D.N.Y. 2005) (Scheindlin, J.) (quoting In Moll v. U.S. Life Title Ins. Co., 85-6866, 1987 WL
    10026, at *3 (S.D.N.Y. Apr. 21, 1987)). This Court did not holdas the MLB Defendants
    implythat the application of the exemption to television contracts was far from clear. See
    MLB Defs Pre-Motion Letter, at 2. The Court held thatwhatever its scopethe exemption
    does not encompass baseballs contracts for television broadcasting rights. Slip Op., at 29. In
    order for the Second Circuit to reverse the Courts holding, therefore, it would have to expand an
    exemption that it is required to construe narrowly and whose validity and logic the Supreme
    Court has expressly questioned. Id. at 29.
    1


    The Courts opinion also does not create a meaningful split in authority. As the Court
    noted in its recent opinion, defendants cite no case that applied the exemption to broadcasting
    restrictions except one judges comments from the bench in granting a motion to dismiss several
    years before the SBA was enacted. Slip Op., at 26-27.

    This case is moving efficiently toward trial. After a final judgment has been entered, the
    defendants may well appeal. Granting the MLB Defendants the option to appeal one aspect of
    the Courts opinion now would thus result in multiple appealsprecisely the piecemeal litigation
    the law disdains. See King Cnty, 863 F. Supp. 2d at 320. There is nothing special about the MLB
    Defendants exemption argument. It is a simply a matter that they wish to have reviewed before

    1
    Even if the application of the exemption to the facts of this case were uncertain, interlocutory
    review would be inappropriate. As this Court has stressed, interlocutory appeal is not intended
    as a vehicle to provide early review of difficult rulings in hard cases. In re Enron Corp., 01-
    16034, 2007 WL 2780394, at *2 (S.D.N.Y. Sept. 24, 2007) (Scheindlin, J.) (quoting In re Levine,
    No. 94-44257, 2004 WL 764709, at *2 (S.D.N.Y. Apr. 9, 2004).
    Case 1:12-cv-03704-SAS-MHD Document 318 Filed 08/15/14 Page 2 of 3

    Honorable Shira A. Scheindlin
    August 15, 2014
    Page 3

    trial. The other defendants may have matters that they, too, would like to have reviewed before
    trial, but they have recognized that interlocutory review is confined to extraordinary
    circumstances not present here.


    Respectfully,

    /s/ Peter E. Leckman

    Peter E. Leckman

    PEL/gg
    cc: All counsel (via ECF)


    Case 1:12-cv-03704-SAS-MHD Document 318 Filed 08/15/14 Page 3 of 3

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