Sterk v. Redbox Automated Retail, LLC - 672 F.3d 535 (7th Cir. 2012)

Rule:

All that 28 U.S.C.S. § 1292(b) requires as a precondition to an interlocutory appeal, once it is determined that the appeal presents a controlling question of law on which there is a substantial ground for a difference of opinion, is that an immediate appeal may materially advance the ultimate termination of the litigation.

Facts:

Plaintiff consumers sued defendant Redbox for violations of the records destruction section of the Video Privacy Protection Act, 18 U.S.C.S. § 2710(e), and the disclosure section, § 2710(b)(1). Defendant, a company that specializes in renting DVDs, Blu-ray Discs, and video games to consumers from automated retail kiosks asked to allow it to take an interlocutory appeal under 28 U.S.C. § 1292(b). The issue it wanted to appeal was whether subsection (e) of the Act can be enforced by a damages suit under sub-section (c). 

Issue:

Was the grant of the appeal proper?

Answer:

Yes.

Conclusion:

All that 28 U.S.C.S. § 1292(b) requires as a precondition to an interlocutory appeal, once it is determined that the appeal presents a controlling question of law on which there is a substantial ground for a difference of opinion, is that an immediate appeal may materially advance the ultimate termination of the litigation. The plaintiffs' original complaint was limited to the destruction subsection, (e), and thus did not allege a violation of the disclosure subsection, (b)(1), which first appeared in the amended complaint, filed after Redbox moved to dismiss the destruction claim. If the appeal was not allowed, and the suit proceeds in the district court on both the disclosure and destruction claims, the completion of the litigation will take longer than if the destruction claim was out of the case, especially since that claim appears to be the plaintiffs' main one, with the disclosure claim perhaps just a life jacket. Moreover, uncertainty about the status of the destruction claim may delay settlement (almost all class actions are settled rather than tried), and by doing so further protract the litigation. That was enough to satisfy the "may materially advance" clause of section 1292(b); neither the statutory language nor the case law requires that if the interlocutory appeal should be decided in favor of the appellant the litigation will end then and there, with no further proceedings in the district court.