Upcoming Supreme Court Case Highlights Appealability Pitfalls When Cases Are Consolidated

Consolidation of cases in federal courts can take many forms. Sometimes cases are consolidated for all purposes. Sometimes, they are consolidated only for limited purposes of discovery or pretrial proceedings. A case in which the United States Supreme Court recently granted certiorari raises the troublesome question of when a decision in a case that has been consolidated is appealable, and whether the form of consolidation that was ordered in the case determines the answer to that question.

Ellen Gelboim sued several banks, alleging that they violated the antitrust laws by manipulating interest rates. For pretrial purposes only, the Judicial Panel on Multidistrict Litigation consolidated her case with several similar ones in the United States District Court for the Southern District of New York. The district court granted the defendants’ motion to dismiss the antitrust claims alleged in many of the complaints, finding that the plaintiffs could not prove antitrust injury. Because Gelboim’s complaint contained only one count alleging violation of the antitrust laws, the court dismissed her complaint in its entirety. Gelboim then appealed, but the Court of Appeals for the Second Circuit dismissed the appeal sua sponte, holding that the dismissal of Gelboim’s case was not a final order because the cases with which it had been consolidated had other counts that were not dismissed and thus were still pending.

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