Opinion
No. 03 Civ. 2387 (LAK).
July 21, 2005
ORDER
Defendant Asset Alliance Corporation moves for certification pursuant to 28 U.S.C. § 1292(b) of the question whether culpable participation by an alleged controlling person must be alleged to state a claim under Section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78t(a).
There is no denying that courts have differed on this issue and that resolution of the issue in Asset Alliance's favor might terminate this case as to it. Nevertheless, even assuming arguendo that the literal terms of the statute are satisfied, Section 1292(b) certification is not to be granted as a matter of course. E.g., In re Rezulin Prods. Liab. Litig., No. 00 Civ. 2843 (LAK), 2004 WL 502919 (S.D.N.Y. Mar. 15, 2004) (citing cases).
The issue tendered here arises on motions to dismiss the complaints in a substantial proportion of all private securities cases filed in this Circuit. The Court of Appeals doubtless will have an opportunity to decide the issue on an appeal from a final judgment, perhaps even in a case already pending. There simply is no good reason to add to the already heavy burdens of that court by certifying an interlocutory appeal on such an issue. Moreover, as Asset Alliance is a 50 percent owner of defendant Beacon Hill Asset Management LLC, it would remain heavily concerned with the defense of this action even if an interlocutory appeal were certified, accepted and resolved in its favor and the complaint later dismissed against Asset Alliance.
Accordingly, the motion is denied.
SO ORDERED.