garber letter in response to mlb's interlocutory appeal request

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


August 15, 2014

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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).



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)


garber letter in response to mlb's interlocutory appeal request

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