On October 23, 2014, the Second Circuit agreed to hold an appeal in abeyance until the U.S. Supreme Court rules on an issue of appellate procedure in Gelboim v. Bank of America Corp. (formerly known as In re LIBOR-Based Financial Instruments Antitrust Litigation).

The Supreme Court’s decision should resolve a circuit split regarding whether consolidated cases (such as when the Judicial Panel on Multidistrict Litigation consolidates several cases into one class action) merge for appellate jurisdiction or whether they retain independent status such that they can be appealed as separate cases. As a general rule, an appeal may only be taken after a final decision has been rendered. Thus, if there are issues still pending in consolidated cases, in theory, an appeal of dismissed claims could not be granted.

In In re LIBOR, all of the antitrust causes of action were dismissed at the district court level, but some plaintiffs still had claims under the Commodity Exchange Act under which they could still proceed in the district court. The plaintiffs whose antitrust claims were dismissed immediately appealed to the Second Circuit which held that it lacked jurisdiction because the appeal was not from a final order.

Yesterday, the Second Circuit held off deciding In re Aluminum Warehousing Antitrust Litigation, a direct appeal from the dismissal of antitrust and state law claims alleging that the London Metal Exchange Ltd. and other financial institutions colluded between 2010 and 2013 to delay the delivery of aluminum to end users. Stay tuned.