Don Henley et al v. Charles S Devore et al

Filing 92

OPPOSITION to EX PARTE APPLICATION to Certify Order Dated 6/10/10 (Docket No. 88) for Interlocutory Review 89 filed by Plaintiffs Mike Campbell, Don Henley, Danny Kortchmar. (Charlesworth, Jacqueline)

Don Henley et al v. Charles S Devore et al

Doc. 92

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MORRISON & FOERSTER LLP JACQUELINE C. CHARLESWORTH (pro hac vice) [e-mail] CRAIG B. WHITNEY (CA SBN 217673) [e-mail] TANIA MAGOON (pro hac vice) [e-mail] 1290 Avenue of the Americas New York, New York 10104 Telephone: [phone] Facsimile: 212.468.7900 PAUL GOLDSTEIN (CA SBN 79613) [e-mail] 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: [phone] Facsimile: 650.327.0811 Attorneys for Plaintiffs DON HENLEY, MIKE CAMPBELL and DANNY KORTCHMAR

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DON HENLEY, MIKE CAMPBELL and DANNY KORTCHMAR, Plaintiffs, v. CHARLES S. DEVORE and JUSTIN HART, Defendants. Case No. SACV09-0481 JVS (RNBx) PLAINTIFFS' OPPOSITION TO DEFENDANTS' EX PARTE APPLICATION FOR ORDER CERTIFYING THE COURT'S ORDER DATED JUNE 10, 2010 FOR INTERLOCUTORY REVIEW

PLAINTIFFS' OPPOSITION TO DEFENDANTS' EX PARTE APPLICATION (SACV09-0481 JVS (RNBx))

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Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. B. C. I. II.

TABLE OF CONTENTS Page INTRODUCTION ........................................................................................... 1 ARGUMENT...................................................................................................1 A. Defendants Are Not Seeking To Certify Controlling Questions Of Law ................................................................................................... 3 1. 2. Defendants' "Questions Of Law" Are Dependent On Facts ....... 3 Defendants' Questions Are Not Controlling ............................... 4

There Are No Substantial Grounds For A Difference Of Opinion ....... 5 Interlocutory Appeal Will Not Materially Advance The Ultimate Termination Of The Litigation .............................................................. 9

CONCLUSION..............................................................................................11

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CASES

TABLE OF AUTHORITIES Page(s) Ahrenholz v. Bd. of Trs. of the Univ. of Ill., 219 F.3d 674 (7th Cir. 2000) ................................................................................................. 2, 3 APCC Servs., Inc. v. ESH AT&T Corp., 297 F. Supp. 2d 101 (D.D.C. 2003) .......................................................................................... 4 Ass'n of Irritated Residents v. Fred Schakel Dairy, 634 F. Supp. 2d 1081 (E.D. Cal. 2008) ..................................................................................... 5 Bourne Co. v. Twentieth Century Fox Film Corp., 662 F. Supp. 499 (S.D.N.Y. 2009) ........................................................................................ 6, 7 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ...................................................................................................... 2, 6, 7, 8 Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132 (2d Cir. 1998) ...................................................................................................... 9 Elvis Presley Enters. v. Passport Video, 349 F.3d 622 (9th Cir. 2003) ..................................................................................................... 8 Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., No. C 01-2821, 2004 U.S. Dist. LEXIS 6674 (N.D. Cal. April 19, 2004)................................ 6 Fukuda v. County of L.A., 630 F. Supp. 228 (C.D. Cal. 1986)............................................................................................ 2 Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) .............................................................................................................. 8, 9 Hightower v. Schwarzenegger, No. 1:04-cv-06028, 2009 U.S. Dist. LEXIS 109603 (E.D. Cal. Nov. 6, 2009) ........................ 3 In re Air Crash Disaster at John F. Kennedy International Airport on June 24, 1975 479 F. Supp. 1118 (E.D.N.Y. 1978)........................................................................................ 10 In re Cement Antitrust Litigation, 673 F.2d 1020 (9th Cir. 1982), aff'd, 459 U.S. 1190 (1983)..................................................... 2 In re First American Corp. ERISA Litig., No. SACV 07-01357, 2008 U.S. Dist. LEXIS 107676 (C.D. Cal. Sept. 12, 2008) .................. 2 James v. Price Stern Sloan, 283 F.3d 1064 (9th Cir. 2002) ................................................................................................... 1 ii
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Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 233 F. Supp. 2d 16 (D.D.C. 2002) ............................................................................................ 5 Laverne v. Corning, 316 F. Supp. 629 (S.D.N.Y. 1970) .......................................................................................... 10 Lenz v. Universal Music Corp., No. C 07-3783, 2008 U.S. Dist. LEXIS 91890 (N.D. Cal. Oct. 28, 2008) ............................... 6 Marobie-FL, Inc. v. Nat'l Ass'n of Fire Equip. Distribs., 983 F. Supp. 1167 (N.D. Ill. 1997)............................................................................................ 8 Salinger v. Colting, No. 09 Civ. 5095, 2009 U.S. Dist. LEXIS 56012 (S.D.N.Y. July 1, 2009) .......................... 7, 9 Salinger v. Random House, Inc, 811 F.2d 90 (2d Cir. 1987)................................................................................9 Steering Committee v. United States, 6 F.3d 572 (9th Cir. 1993) ....................................................................................................... 10 U. S. Rubber Co. v. Wright, 359 F.2d 784 (9th Cir. 1966) ............................................................................................... 2, 10 Weissman v. Freeman, 868 F.2d 1313 (2d Cir. 1989) .................................................................................................... 8 Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000) ............................................................................................... 8, 9

STATUTES 28 U.S.C. § 1292(b)................................................................................................................passim Section 107 of the Copyright Act. 17 U.S.C. § 107 ........................................................................ 5

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Plaintiffs oppose Defendants' ex parte request that the Court certify its Order Granting in Part and Denying in Part Plaintiffs' Motion for Partial Summary Judgment and Defendants' Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment ("Order") for interlocutory review under 28 U.S.C. § 1292(b). I. INTRODUCTION Ten days after entry of this Court's Order granting summary judgment to Plaintiffs on the question of Defendants' liability for copyright infringement, Defendants seek, on an expedited, ex parte basis, to have this Court certify three factbound issues they have isolated from the Court's fair use analysis for immediate, piecemeal review by the Ninth Circuit pursuant to 28 U.S.C. § 1292(b). Defendants' application should be rejected. Section 1292(b) is not a shortcut to appeal a loss on summary judgment. Certification of an interlocutory appeal is appropriate only in exceptional circumstances, where the benefits of immediate appellate review are so compelling they outweigh the ordinary rule that appellate review should be postponed until the entry of a final judgment at the trial level. No such exceptional circumstance is present here. Indeed, to permit such an appeal would only pointlessly delay resolution of this litigation. None of the supposed "questions of law" identified by Defendants is truly a question of law, or dispositive of the question of fair use; and none can be reviewed by an appellate court independent of the factual record in this case. It is perhaps understandable that Defendants might view an appellate hiatus as preferable to trial on the remaining issues of willfulness and damages in this case (which trial is currently scheduled to commence on August 3, 2010). But there is simply no basis for their application under Section 1292(b). Defendants should not be permitted to invoke the interlocutory appeal process to avoid trial in this action. II. ARGUMENT "Section 1292(b) is a departure from the normal rule that only final judgments are appealable, and therefore must be construed narrowly." James v. Price Stern
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Sloan, 283 F.3d 1064, 1068 (9th Cir. 2002); accord In re First American Corp. ERISA Litig., No. SACV 07-01357, 2008 U.S. Dist. LEXIS 107676, at *2 (C.D. Cal. Sept. 12, 2008). Certification under Section 1292(b) is appropriate "only in extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation." U. S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). It is not intended "merely to provide review of difficult rulings in hard cases." Id. The burden is on the party seeking certification to show "that exceptional circumstances justify a departure from the `basic policy of postponing appellate review until after the entry of a final judgment.'" Fukuda v. County of L A., 630 F. Supp. 228, 229 (C.D. Cal. 1986) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978)). Defendants make no such showing here. Three criteria must be met before a district court may certify an interlocutory appeal pursuant to Section 1292(b). These requirements are "(1) that there be a controlling question of law, (2) that there be substantial grounds for difference of opinion, and (3) that an immediate appeal may materially advance the ultimate termination of the litigation." In re Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982), aff'd, 459 U.S. 1190 (1983). Certification is only appropriate where each of these conditions is satisfied. Ahrenholz v. Bd. of Trs. of the Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000) ("The criteria are conjunctive, not disjunctive."). In their application, Defendants seek certification of the following three questions: 1. Does a defendant engage in parody under Campbell where he appropriates

the themes and characters of a copyrighted work in order to make political or social statements at odds with the known views of the author of that original work ­ including even views not raised in the original work ­ or does parody exist only where the defendant's work directly addresses the specific issues or themes raised in the original work?

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2.

Is the use of a copyrighted work in a campaign advertisement a

"commercial use" of the copyrighted work even where the campaign is not selling a product or service? 3. Does the fourth fair use factor weigh in a plaintiff's favor where the

plaintiff has no evidence of actual monetary losses, no evidence of actual monetary benefits to the defendant, and no evidence that the plaintiff even attempts to engage in market transactions concerning the copyrighted work ­ merely because the plaintiff asserts that he may at some future time engage in market transactions with the copyrighted work and he believes defendant's use of the copyrighted work could harm those future, hypothetical transactions? A. Defendants Are Not Seeking to Certify Controlling Questions of Law 1. Defendants' "Questions of Law" Are Dependent on Facts

Under Section 1292(b), a "question of law" means a "pure question of law" ­ that is, "an abstract legal issue rather than an issue of whether summary judgment should be granted." Ahrenholz, 219 F.3d at 677. "The idea [of Congress] was that if a case turned on a pure question of law, something the court of appeals could decide quickly and cleanly without having to study the record, the court should be enabled to do so without having to wait until the end of the case . . . . But to decide whether summary judgment was properly granted requires hunting through the record compiled in the summary judgment proceeding . . . ." Id. In other words, to satisfy the first prong of Section 1292(b), "`[t]he legal question must be stated at a high enough level of abstraction to lift the question out of the details of the evidence or facts of a particular case and give it general relevance to other cases in the same area of law.'" Hightower v. Schwarzenegger, No. 1:04-cv06028, 2009 U.S. Dist. LEXIS 109603, at *7 (E.D. Cal. Nov. 6, 2009) (quoting McFarlin v. Conesco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004)). Defendants' questions are the antithesis of the type of issues that are appropriately certified for interlocutory appeal, because they are inextricably tied to the factual record. Despite
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Defendants' attempt to disguise them as freestanding issues of "law," as is apparent on their face, Defendants' questions are not "pure" or "abstract" legal concerns. They are incapable of being addressed apart from the factual record in this case. Indeed, they are incapable of being fully understood apart from the factual record in this case. For example, with respect to the first question, how could the Court of Appeals possibly make sense of such concepts as "themes or characters," "political or social statements" or the "known views of the author," without an understanding of the record on summary judgment? The second and third questions suffer from the same deficiency. What kind of "campaign advertisement"? How was the copyrighted work used in the advertisement? Did the defendants profit from the advertisement? What is meant by "market transactions"? How do such "market transactions" relate to the "future, hypothetical transactions"? What is the potential harm at issue? Defendants' questions are not questions that can be "lift[ed] . . . out of the details of the evidence or facts" to be decided "quickly and cleanly," as envisioned by Section 1292(b). Far from presenting "pure" issues of law, Defendants' questions are nothing more than artfully phrased objections to the fact-based determinations made by the Court in evaluating Defendants' claim of fair use on summary judgment. For this reason alone, certification of any of these questions would be inappropriate. 2. Defendants' Questions Are Not Controlling

Even assuming the questions put forth by Defendants did constitute answerable questions of law, they would nonetheless be inappropriate for certification, because they are not controlling of this case. A controlling question of law is one that would "require reversal if decided incorrectly or that could materially affect the course of litigation with resulting savings of the court's or the parties' resources." APCC Servs., Inc. v. ESH AT&T Corp., 297 F. Supp. 2d 101, 105 (D.D.C. 2003) (quoting Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 233 F. Supp. 2d 16, 19 (D.D.C. 2002)). Here, even if the Ninth Circuit resolved one or more of Defendants' questions in a manner favorable to
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Defendants, this would not in itself be dispositive of the question of fair use, and thus might have no material impact on the course of the litigation. Fair use is a mixed question of fact and law that is determined pursuant to the four-factor test prescribed by Section 107 of the Copyright Act. 17 U.S.C. § 107; see also Order at 6 (citing Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)). As this Court has explained, the fair use factors are not to be analyzed "`in isolation from one another.'" Order at 6 (citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994)). "The factors are not winner-take-all categories to be tallied at the end to determine the prevailing party; they are intended to be carefully weighed case by case with an eye towards the policies underlying copyright protection." Id. at 6 (citing Campbell, 510 U.S. at 578). Thus, even if the Court of Appeals rendered an opinion on one or more of Defendants' questions, this Court, on remand, would still need to consider that issue in the context of the complete factual record and in relation to the other fair use factors, and could still reach the conclusion that Defendants had failed to meet their burden of demonstrating fair use ­ which could then be appealed again to the Ninth Circuit. Indeed, because the fair use factors are factually dependent and intertwined, the question of fair use is particularly illsuited to piecemeal review of isolated issues, especially when those issues are divorced from their factual context. B. There Are No Substantial Grounds for a Difference of Opinion

"Substantial grounds for a difference of opinion" means more than mere disagreement with a Court's determination of a legal issue. See Ass'n of Irritated Residents v. Fred Schakel Dairy, 634 F. Supp. 2d 1081, 1091 (E.D. Cal. 2008) ("A party's strong disagreement with the court's ruling is not sufficient for there to be a `substantial ground for difference'; the proponent of an appeal must make some greater showing.") (citing Hansen v. Shubert, 459 F. Supp. 2d 973, 1000 (E.D. Cal. 2006)); Judicial Watch, Inc., 233 F. Supp. 2d at 31 ("[D]efendants' conviction of the correctness of their position is insufficient to carry them over the high threshold posed
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by the standard governing certification for interlocutory appeal.")); see also Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., No. C 01-2821, 2004 U.S. Dist. LEXIS 6674, at *14-16 (N.D. Cal. Apr. 19, 2004) ("A substantial ground for dispute [] exists where a court's challenged decision conflicts with decisions of several other courts.") (citing APCC Servs., 297 F. Supp. 2d at 107). "`[T]he mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion' under § 1292(b)." Lenz v. Universal Music Corp., No. C 07-3783, 2008 U.S. Dist. LEXIS 91890, at *5 (N.D. Cal. Oct. 28, 2008) (quoting In re Conseco Life Ins. Cost of Ins. Litig., No. Civ. 04-1610, 2005 U.S. Dist. LEXIS 45538, at *7 (C.D. Cal. May 31, 2005)). Defendants assert that there is a substantial ground for difference of opinion with respect to each of the three questions they present. But the only issue in the Court's summary judgment order that even arguably qualifies as a question giving rise to a substantial difference of opinion is the question of whether use of an author's work to criticize the author, rather than the work itself, qualifies as parody under Campbell ­ and the Court resolved this question in Defendants' favor. While characterizing the issue as one that is undecided in the law, the Court nonetheless assumed "parody-ofthe-author" as a legitimate form of parody for purposes of its fair use analysis. See Order at 12. In so doing, the Court relied on a New York district court case, Bourne Co. v. Twentieth Century Fox Film Corp., 662 F. Supp. 499, 507 (S.D.N.Y. 2009), in which a copyright owner challenged the use of its song "When You Wish Upon a Star" in an episode of the Family Guy television show. In holding that the defendants' taking from the original song was parodic in nature, the Bourne court credited the defendants' claim that they were seeking to parody the alleged anti-Semitism of Walt Disney. Id. at 507. Significantly, however, the core holding of Bourne was that the defendants' work commented on the original song, by "juxtaposing the `saccharin sweet' song `When You Wish Upon a Star' with [the defendants' song] `I Need a Jew'". . . . `I
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Need a Jew' comments both on the original work's fantasy of stardust and magic, as well as [the Family Guy character] Peter's fantasy of the `superiority' of Jews." Id. at 506. In so holding, the court expressly observed that "Defendants do more than just comment on racism and bigotry generally." Id. (emphasis added). Thus, Bourne does not stand for the proposition that the targeting of an author or an author's views alone ­ without any commentary on the author's work ­ qualifies as parody under Campbell. Indeed, as noted by this Court, the Bourne court emphasized this very point in a subsequent decision, Salinger v. Colting, No. 09 Civ. 5095, 2009 U.S. Dist. LEXIS 56012, at *24 n.4 (S.D.N.Y. July 1, 2009), rev'd and remanded on other grounds, No. 09-2878, 2010 U.S. App. LEXIS 8956 (2d Cir. Apr. 30, 2010), in which the court rejected the assertion that merely taking aim at an author qualifies as a valid parody of the author's work. See Order at 9 n.7. In light of the Court's treatment of Bourne as lending support to the Defendants' "parody-of-the-author" defense, it is difficult to understand what Defendants seek to challenge in question one. They appear to suggest that Bourne should be construed to support an even broader definition of parody, pursuant to which one need not comment on the original song or the author at all, but may address "an entirely separate subject" that does not appear in the original work. (See Defendants' Ex Parte Application ("Defs. Ex Parte App.") at 4.) Of course, the Supreme Court in Campbell was clear that this is satire, not parody. 510 U.S. at 581. But in any event, as explained above, Bourne does not go so far, because in Bourne, the court concluded that the defendants' work commented on the original song. And, as noted above, the Bourne court was careful to point out that the defendants' parody did more than "just comment" on the racist and bigoted views attributed to Disney. Thus, contrary to Defendants' assertions, Bourne ­ the lone case (aside from Campbell) cited by Defendants in support of question one ­ provides no basis for certification. Indeed, Plaintiffs are not aware of any case that suggests that a would-be parodist may simply target the views of an author, rather than the author or work itself,
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and come within the definition of Campbell. In sum, there is no basis for the Defendants to claim "substantial grounds for difference of opinion" with respect to question one. Likewise, there are no grounds for a "difference of opinion" with respect to the Court's determination concerning "commercial use," as suggested by Defendants in question two. The Court applied the clear rule of the Ninth Circuit, as articulated in Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1117 (9th Cir. 2000), in turn based on the Supreme Court case Harper & Row, to the facts of this case. See also Elvis Presley Enters. v. Passport Video, 349 F.3d 622, 626 (9th Cir. 2003) (historical documentary considered commercial under Harper & Row); Weissman v. Freeman, 868 F.2d 1313, 1324 (2d Cir. 1989) (applying Harper & Row to find for-profit use in academic context); Marobie-FL, Inc. v. Nat'l Ass'n of Fire Equip. Distribs., 983 F. Supp. 1167, 1175 (N.D. Ill. 1997) (nonprofit group's use of clip art commercial based on Harper & Row). Pursuant to such authority, the Court correctly determined that the Defendants' use was for-profit, rather than non-profit. See Order at 19. In support of its holding that Defendants' uses were for-profit for purposes of the Copyright Act, the Court relied upon the fact that Defendants made and distributed the videos to attract publicity and donations, and that Hart's salary was tied to such exploitations, among other factors. Id. Defendants may not like Court's determination of this issue, but the determination is based on an application of controlling precedent to undisputed facts in the record. There is no basis to certify this question for interlocutory review. Finally, in question three, Defendants appear to be complaining about the rule set forth in Campbell and other cases, both within and outside the Ninth Circuit, that requires a court to look to potential harm to the copyright owner in considering the question of market harm. See Campbell, 510 U.S. at 590 (courts must consider "whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact"); Worldwide Church, 227 F.3d at
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1119 (the "relevant consideration" is harm to the "`potential market'"). Courts have expressly and repeatedly rejected the assertion that Defendants make here, that a showing of actual harm is required. See, e.g., Harper & Row, 471 U.S. at 559 (absence of exploitation of particular market by copyright holder does not preclude finding of market harm because the copyright holder has the "right to change his mind"); Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 145-46 (2d Cir. 1998) (same); Worldwide Church, 227 F.3d at 1119 (same); Salinger v. Random House, Inc, 811 F.2d 90, 99 (2d Cir. 1987) (same). Again, the Defendants may not like the outcome of the Court's analysis, but that does not give rise to a substantial difference of opinion justifying certification. C. Interlocutory Appeal Will Not Materially Advance the Ultimate Termination of the Litigation Defendants' ex parte application, rather than seeking to avoid protracted litigation, seeks to ensure that this case is prolonged indefinitely. Under Section 1292(b), Defendants must demonstrate that an interlocutory appeal will "materially advance the ultimate termination of the litigation." Here, interlocutory review would have the opposite effect. Defendants do not explain how granting their underlying application seeking piecemeal, interlocutory review of certain aspects of the Court's Order ­ when liability has been decided and all that remains of this case is a trial on the limited questions of willfulness and damages ­ will spare the parties or the courts time or expense. Defendants, through their application, would have this Court stay a case that has been litigated for over a year and is expected to be completed within the next two to three months. If the Court were to grant Defendants' request ­ and the Ninth Circuit agreed to hear the interlocutory appeal ­ the case would stayed pending resolution of the appeal, only to be continued in this Court a year or more in the future. Not only that, as discussed above, the question of fair use might have to be re-evaluated at the district court level based on the partial appellate review, and would potentially be
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subject to a second appeal. One can hardly imagine a less efficient course for this litigation. Notably, Defendants cite only one case in support of their contention that "[t]he [interlocutory appeal] procedure is particularly appropriate where a reversal on liability could spare time and expense on the question of damages." (Defs. Ex Parte App. at 3.) Rather than support Defendants' argument, that case, Steering Committee v. United States, 6 F.3d 572 (9th Cir. 1993), exposes the weakness of their application. In Steering Committee, the district court certified ­ and the Ninth Circuit permitted ­ issues of liability to be determined on interlocutory appeal explicitly because it was a "multidistrict," "multiparty case" involving an airplane crash that killed 82 people. Id. at 574-75. In certifying and permitting the interlocutory appeal of this complex case, the district and circuit courts relied on the logic of In re Air Crash Disaster at John F. Kennedy International Airport on June 24, 1975 ("Air Crash Disaster"), 479 F. Supp. 1118 (E.D.N.Y. 1978), recognizing that that the determination of liability in such "unusual cases" is analogous to "the intermission which marks the conclusion of Act I of a two-act play." Steering Committee, 6 F.3d at 575 (quoting Air Crash Disaster, 479 F. Supp. at 1126). The "unusual case" of multidistrict, multiparty litigation is a far cry from the two-defendant statutory damages trial at issue here. Defendants' ex parte application does not come close to satisfying any of the three requirements for interlocutory appeal and appears to be nothing more than a transparent attempt to avoid facing damages for their infringing conduct. Defendants' application should be denied. This is not an "extraordinary case[] where decision of interlocutory appeal might avoid protracted and expensive litigation." U.S. Rubber Co., 359 F.2d at 785. "[S]ince the only issue remaining is the determination of the quantum of damages to be awarded plaintiffs, which apparently will not involve expensive and protracted litigation, there is little reason to believe that permitting an appeal from this Court's decision will `materially advance the ultimate termination of the litigation.'" Laverne v. Corning, 316 F. Supp. 629, 639 (S.D.N.Y. 1970) (emphasis
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in original). It is simply a case where the Defendants are unhappy with the Court's decision on summary judgment. III. CONCLUSION For the foregoing reasons, Defendants' ex parte application seeking certification of questions for interlocutory appeal, and related motion seeking same, should be denied. Dated: June 22, 2010 MORRISON & FOERSTER LLP Jacqueline C. Charlesworth Craig B. Whitney Tania Magoon Paul Goldstein

By:

/s/ Jacqueline C. Charlesworth Jacqueline C. Charlesworth

Attorneys for Plaintiffs

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