Opinion
CIVIL ACTION NO. 04-3423.
May 16, 2005
Robert L. Hickok, Elizabeth S. Campbell, PEPPER HAMILTON LLP, Philadelphia, PA, Attorneys for Defendant PresGar Imaging, LC.
David S. Hoffner, Esq., DECHERT LLP, New York, NY, Attorney for Defendant OnCure Technologies Corp. and Jeffrey Goffman.
Stuart J. Chanen, Esq., Leah J. Domitrovic, Esq., Matthew J. Cannon, Esq., KATTEN MUCHIN ZAVIS ROSENMAN, Chicago, IL.
Jeffrey S. Saltz, Esq., LAW OFFICES OF JEFFREY S. SALTZ, P.C., Philadelphia, PA, Attorneys for Defendant Dolphin Medical Inc.
William J. Taylor, Esq., Kevin F. Berry, Esq., COZEN O'CONNOR, Philadelphia, PA, Attorneys for Defendant Anthony Turek.
Patricia M. Hamill, Esq., CONRAD, O'BRIEN, GELLMAN ROHN, P.C., Philadelphia, PA, Attorney for Defendant Richard Miller.
Daniel Segal, Esq., Bruce Haines, Esq., Matthew Hamermesh, Esq., Paul W. Kaufman, Esq., HANGLEY ARONCHICK SEGAL PUDLIN, Philadelphia, PA, Attorneys for Defendants Terry W. Cady and Matthew Colasanti.
Robert E. Kelly, Esq., Kelly D. Eckel, Esq., DUANE MORRIS LLP, Philadelphia, PA, Attorneys for Defendant Raymond Fear.
ORDER
AND NOW, this ____ day of ____, 2005, upon consideration of Moving Defendants' Motion for Certification for Appeal Pursuant to 28 U.S.C. § 1292(b), this Court certifies the following questions for immediate appeal:
(1) Can a claim under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5(a) and (c) thereunder be properly premised on conduct that does not involve "market manipulation" as defined by the Supreme Court in Santa Fe Indus., Inc. v. Green, 430 U.S. 462 (1977)?
(2) Does Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994), preclude claims for aiding and abetting a violation of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5(a) and (c) thereunder, and, if so, what level of conduct constitutes a primary violation of Rule 10b-5(a) and (c)?
The Court is of the opinion that these questions, as addressed in its Memorandum and Opinion entered April 29, 2005, involve controlling questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the Court's Order as to these questions may materially advance the ultimate termination of the litigation.
MOVING DEFENDANTS' MOTION FOR CERTIFICATION FOR APPEAL PURSUANT TO 28 U.S.C. § 1292(b)
Pursuant to 28 U.S.C. § 1292(b), Defendants PresGar Imaging, LC, On Cure Technologies Corp., Jeffrey Goffman, Dolphin Medical Inc., Anthony Turek, Richard Miller, Terry Cady, Matthew Colasanti, and Raymond Fear (collectively, the "Moving Defendants") hereby move that the Court certify for immediate appeal pursuant to 28 U.S.C. § 1292(b) the following two legal questions which are addressed in the Court's ruling in its Memorandum and Order entered April 29, 2005:
(1) Can a claim under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5(a) and (c) thereunder be properly premised on conduct that does not involve "market manipulation" as defined by the Supreme Court in Santa Fe Indus., Inc. v. Green, 430 U.S. 462 (1977)?
(2) Does Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994), preclude claims for aiding and abetting a violation of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5(a) and (c) thereunder, and, if so, what level of conduct constitutes a primary violation of Rule 10b-5(a) and (c)?
For the reasons set forth in the accompanying Memorandum of Law, which is incorporated by reference herein, these questions are appropriate for certification for immediate appeal pursuant to 28 U.S.C. § 1292(b).