Case 1:08-cv-10446-RGS Document 148 Filed 10/30/12 Page 1 of 3
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 08-10446-RGS
PLUMBERS’ UNION LOCAL NO. 12 PENSION FUND,
Individually and On Behalf of All Others Similarly Situated
NOMURA ASSET ACCEPTANCE CORP., et al.
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION
FOR CERTIFICATION PURSUANT TO 28 U.S.C. § 1292(b) FOR
AN INTERLOCUTORY APPEAL
October 30, 2012
Defendants move pursuant to 28 U.S.C. § 1292(b) for certification of an
interlocutory appeal of this court’s October 1, 2012 Memorandum and Order denying
Defendants’ Renewed Motion to Dismiss. Defendants specifically seek review of the
court’s determination that under the circumstances of this case, and consistent with
the rule announced in American Pipe Construction Co. v. Utah, 414 U.S. 538 (1974),
the filing of a putative class action by plaintiff Plumbers’ Union Local No. 12
Pension Fund (Plumbers’ Fund), which lacks standing to sue on the 2006-AP 1
offering, had the effect of tolling the statute of limitations for the 2006-AP I claims
of plaintiffs Plumbers & Pipefitters’ Welfare Educational Fund (Pipefitters) and
Case 1:08-cv-10446-RGS Document 148 Filed 10/30/12 Page 2 of 3
NECA-IBEW Health & Welfare Fund (NECA). The motion will be GRANTED.
In deciding whether to grant a motion for leave to file an interlocutory appeal,
the court must consider “whether (1) ‘the order involves a controlling question of
law’ (2) ‘as to which there is substantial ground for difference of opinion,’ and (3)
whether ‘an immediate appeal from the order may materially advance the ultimate
termination of the litigation.’” In re Bank of New England, 218 B.R. 643, 652
(B.A.P. 1st Cir. 1998), quoting 28 U.S.C. § 1292(b). While interlocutory appeals are
granted “sparingly and only in exceptional circumstances,” this court is of the opinion
that this is one of those “rare cases [that] qualif[ies] for the statutory anodyne.” In re
San Juan DuPont Plaza Hotel Fire Litig., 859 F.2d 1007, 1010 n. 1 (1st Cir. 1988)
(internal quotation marks and citation omitted).
As set forth in the court’s previous Memorandum and Order,
[W]hether the [American Pipe tolling] rule applies to claims for which
the Plumbers’ Fund lacked standing – namely, the 2006-AP 1
Certificate, which Plumbers’ Fund did not buy – is a subject of much
debate. Neither the Supreme Court nor the First Circuit has addressed
this issue, and the courts that have done so are divided. As one court
summarized the divide, “[courts] that have applied the American Pipe
tolling rule in these or similar circumstances have stressed the policies
animating that decision. Those declining to do so have emphasized the
tolling rule’s potential for abuse.” In re Indymac Mortg.-Backed Sec.
Litig., 793 F. Supp. 2d 637, 646 (S.D.N.Y. 2011) (footnotes omitted)
(collecting cases); see also In re Direxion Shares EFT Trust, 279 F.R.D.
221, 237 n.9 [(S.D.N.Y. 2012)] (acknowledging split); In re Morgan
Stanley Mortg. Pass-Through Certificates Litig., 810 F. Supp. 2d 650,
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668–669 (S.D.N.Y. 2011) (same). Where and how to strike the balance
between these polar positions is a matter of policy that the First Circuit
and, ultimately, the Supreme Court, must decide.
Plumbers’ Union Local No. 12 Pension Fund v. Nomura Asset Acceptance Corp,
2012 WL 4480735 (D. Mass. Oct. 1, 2012) (footnote omitted).
Given the controlling nature of this important and unsettled question of law,
the court concludes that this litigation would “benefit from [its] prompt resolution”
by the Court of Appeals. Camacho v. Puerto Rico Ports Auth., 369 F.3d 570, 573
(1st Cir. 2004).
For the foregoing reasons, defendants’ motion for certification of an
interlocutory appeal is GRANTED. Further proceedings before this court are
STAYED pending the Court of Appeals’ disposition of the proposed appeal.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE