U.S. Court of Appeals for the Second Circuit, 2003

In re California Public

U.S. Court of Appeals for the Second Circuit · Decided October 31, 2003 · Cabranes, Oakes, Sack

79 F. App'x 478

Counsel

William S. Lerach (Darren J. Robbins, Spencer A. Burkholz, Michael J. Dowd, Randall J. Baron, Thomas E. Egler, Douglas R. Britton, Susan G. Taylor and Benny C. Goodman III, of counsel), Milberg Weiss Bershad Hynes & Lerach, San Diego, CA (Patrick J. Coughlin, Randi D. Bandman, Azra Z. Mehdi, Luke O. Brooks and Connie M. Cheung, of counsel), Mil-berg Weiss Bershad Hynes & Lerach, San Francisco, CA, for Petitioners., Jay B. Kasner (Susan L. Saltzstein, Cyrus Amir-Mokri, Beverly A. Farrell, of counsel), Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for Underwriter-Related Respondents, Paul C. Curnin (David Elbaum, Bryce L. Friedman, David H. LaRoeca, of counsel), Simpson Thacher & Bartlett LLP, New York, NY, for WorldCom Director Respondents, Martin London (Brad S. Karp, Eric S. Goldstein, Joyce S. Huang, Andrew J. Ehrlich, of counsel), Paul, Weiss, Rifkind, Wharton & Garrison LLP (Robert McCaw, Peter K. Vigeland, of counsel), Wilmer, Cutler & Pickering, New York, NY, for Citigroup Respondents, John P. Coffey (Max W. Berger, Steven B. Singer, Beata Gocyk-Farber, John C. Browne, Jennifer L. Edlind, of counsel), Bernstein Litowitz Berger & Grossmann LLP, New York, N.Y. (Leonard Barrack, Gerald J. Rodos, Jeffrey W. Golan, Mark R. Rosen, Jeffrey A. Barrack, Pearlette V. Toussant, of counsel), Barrack, Rodos & Bacine, Philadelphia, PA, for New York State Common Retirement Fund and the Putative Class, Lewis J. Liman (Thomas J. Moloney, David H. Herrington, Katherine J. Roberts, of counsel), Cleary, Gottlieb, Steen & Hamilton, New York, NY, for amici curiae The Securities Industry Association and The Bond Market Association, for Respondents.

Cases that cite this one

2 later published cases cite this decision.

California Public Employees' Retirement System v. Worldcom, Inc. (1st Cir. 2004)
California Public Employees' Retirement System v. WorldCom, Inc. (2d Cir. 2004)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

SUMMARY ORDER

The two mandamus petitions now before us arise out of the securities litigation that followed the collapse of WorldCom. In one petition, the “Remand Petition,” petitioners ask us to issue a writ of mandamus directing the United States District Court for the Southern District of New York (Denise Cote, Judge) to vacate its orders denying petitioners’ motions to remand actions brought under sections 11 and 12 of the Securities Act of 1933 to various state courts. In a second petition, the “Consolidation Petition,” petitioners ask us to issue a writ of mandamus directing the District Court to vacate its May 28, 2003 order consolidating petitioners’ actions with a class action for pretrial purposes and vesting authority for conducting discovery and motion practice in the lead class-action plaintiff.

Because interlocutory appeal pursuant to 28 U.S.C. § 1292(b) remains a possible and adequate avenue for appellate review of the District Court’s orders, and also because petitioners’ right to relief in this case is not “clear and indisputable,” In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988), the petitions are denied.

With respect to both petitions, Judge Oakes dissents. Judge Oakes believes that, under the principles of In re von Bulow, 828 F.2d 94 (2d Cir. 1987), the petitioners are entitled to a writ of mandamus if the District Court erred in holding that 28 U.S.C. §§ 1334 and 1452 control over Section 22(a) of the Securities Act of 1933. In the absence of a writ of mandamus with respect to the Remand Petition, Judge Oakes would issue a writ of mandamus directing the District Court to vacate its consolidation order of May 28, 2003. The majority, on the other hand, believes that, with respect to both petitions, the standards for a writ of mandamus have not been met.

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