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Millett v. Atlantic Richfield, attorneys and footnotes

Attorneys for plaintiff:

Jon Hinck, Esq., (orally)
Lewis J. Saul, Esq.
Jennifer Martin Frank, Esq.
Lewis Saul & Assoc., P.C.
183 Middle Street, suite 200
Portland, ME 04101

William D. Robitzek, Esq.
Berman & Simmons, P.A.
P O Box 961
Lewiston, ME 04243-0961

Attorneys for defendants:

William J. Kayatta Jr., Esq., (orally)
John J. Aromando, Esq.
David P. Littell, Esq.
Pierce Atwood
One Monument Square
Portland, ME 04101-1110
Alan J. Hoffman, Esq.
Blank Rome Cominsky & McCauley
One Logan Square
Philadelphia, PA 19103-6998
(for ARCO Chemical and Lyondell Chemical)

Randall B. Weill, Esq.
Jonathan S. Piper, Esq.
Preti Flaherty Beliveau Pachios & Haley, LLC
P O Box 9546
Portland, ME 04112-9546
(for Atlantic Richfield)

Mark G. Lavoie, Esq.
Thomas S. Majerison, Esq.
Norman Hanson & DeTroy
P O Box 4600
Portland, ME 04112-4600
(for George Smith)

Peter J. Rubin, Esq.
Jeffrey A. Thaler, Esq.
Bernstein Shur Sawyer & Nelson
P O Box 9729
Portland, ME 04104-5029
(for Oxygenated Fuels Assn.)

Joseph H Groff III, Esq.
Brendan Reilly, Esq.
Jensen Baird Gardner & Henry
P O Box 4510
Portland, ME 04112-4510
(for American Petroleum Inst.)
FOOTNOTES******************************** {1} . The plaintiffs have not argued that the collateral order exception applies. In Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), discussed infra, the plaintiffs argued that their appeal from a denial of class certification came within the collateral order exception, but the Court rejected that argument because a class action order is always subject to revision pursuant to F.R. Civ. P. 23(c)(1); because it involves consideration of the factual and legal questions of the plaintiffs' cause of action; and because the denial of class certification can be appealed at the end of the case. See id. at 469. {2} . F.R. Civ. P. 23 has been recently amended by the addition of paragraph (f). F.R. Civ. P. 23(f), which became effective December 1, 1998, states: A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders. For an interpretation of F.R. Civ. P. 23(f), see Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288 (1st Cir. 2000). Maine's class action rule does not contain a provision similar to F.R. Civ. P. 23(f). {3} . The Court also noted that a federal statute permits a discretionary appeal from interlocutory orders such as a denial of class certification. See Coopers & Lybrand, 437 U.S. at 474. The Interlocutory Appeals Act of 1958, Pub. L. No. 85-919, 72 Stat. 1770 (1958), (codified at 28 U.S.C.A. § 1292(b) (1993)) reads as follows: (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. Maine does not have such a statute, but we have at least two procedural rules for appealing from an otherwise nonfinal order. See M.R. Civ. P. 54(b) (authorizing the trial court to direct, as final, the entry of a judgment on fewer than all claims or as to fewer than all parties, upon the express determination that there is no reason for delay); M.R. Civ. P. 72(c) (permitting the trial court to report any question of law involved in an interlocutory ruling which in the opinion of the trial court ought to be determined before further proceedings). The plaintiffs did not attempt to utilize either rule. {4} . See Levy v. Metro. Sanitary Dist. of Greater Chicago, 440 N.E.2d 881, 882 (Ill. 1982) (holding dismissal of class action allegations interlocutory and not appealable as of right and remanding to determine if rule allowing discretionary appeal is applicable); Bellarmine Coll. v. Hornung, 662 S.W.2d 847, 849 (Ky. Ct. App. 1983) (holding defendant class certification interlocutory and not appealable); Snowden v. Baltimore Gas & Elec. Co., 479 A.2d 1329, 1330 (Md. 1984) (holding dismissal of action as to unnamed plaintiffs interlocutory and not appealable even though trial court directed entry of final judgment pursuant to equivalent of F.R. Civ. P. 54(b)) (but see Philip Morris, Inc. v. Angeletti, 752 A.2d 200, 217-18 (Md. 2000) (issuing writ of mandamus to review grant of class certification, recognizing that such orders ordinarily nonfinal and not appealable)); In re Objections and Defs. to Real Prop. Taxes for the 1980 Assessment, 320 N.W.2d 729, 731 (Minn. 1982) (holding denial of class certification not appealable as of right); Ralph v. Am. Family Mut. Ins. Co., 809 S.W.2d 173, 175 (Mo. Ct. App. 1991) (holding denial of class certification interlocutory and not appealable) (but see State ex rel. Byrd v. Chadwick, 956 S.W.2d 369, 383, 386, 387 (Mo. Ct. App. 1997) (issuing writ of mandamus vacating trial court's preliminary approval of temporary settlement class on grounds that trial court had not decided appropriateness of class and that notice to temporary class was inadequate)); Lake v. Piper, Jaffray and Hopwood, Inc., 324 N.W.2d 660, 662 (Neb. 1982) (holding order dismissing class allegations interlocutory and not appealable); Knowles v. Standard Sav. and Loan Ass'n, 261 S.E.2d 49, 49 (S.C. 1979) (dismissing appeal of class certification as interlocutory); Smith v. Tobin, 311 N.W.2d 209, 211 (S.D. 1981) (holding denial of class certification interlocutory and not appealable); Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990) (holding denial of class certification interlocutory and not appealable even though trial court directed entry of final judgment pursuant to equivalent of F.R. Civ. P. 54(b)). {5} . See Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1038 (Alaska 1981) (allowing appeal of class certification order pursuant to appeal rule permitting discretionary review of interlocutory orders of substance and importance); Reader v. Magma-Superior Copper Co., 494 P.2d 708, 709 (Ariz. 1972) (allowing appeal from denial of class certification pursuant to statute permitting appeals from orders affecting substantial rights) (but see Eaton v. Unified Sch. Dist. No. 1 of Pima County, 595 P.2d 183, 184-85 (Ariz. Ct. App. 1979) (dismissing appeal from certification of defendant class as interlocutory and not appealable and distinguishing Reader on ground that Reader involved denial of class certification)); Arkansas State Bd. of Educ. v. Magnolia Sch. Dist. No. 14 of Columbia County, 769 S.W.2d 419, 419 (Ark. 1989) (allowing appeal from class certification pursuant to appellate rule); Aetna Cas. & Sur. Co. v. Cantrell, 399 S.E.2d 237, 238 (Ga. Ct. App. 1990) (allowing appeal from class certification which trial court certified for immediate review); Martin v. Amana Refrigeration, Inc., 435 N.W.2d 364, 366 (Iowa 1989) (allowing appeal from class certification pursuant to rule specifically allowing appeal from class certification order); Carr v. GAF, Inc., 702 So. 2d 1384, 1385 (La. 1997) (noting that appeals from grant of class certification are appealable pursuant to rule permitting appeals from interlocutory orders which cause irreparable injury); Faulkenbury v. Teachers' and State Employees' Ret. Sys. of N. Carolina, 424 S.E.2d 420, 429 (N.C. Ct. App. 1993) (granting discretionary appeal from order granting class certification pursuant to North Carolina appellate rule); Rogelstad v. Farmers Union Grain Terminal Ass'n, Inc. 224 N.W.2d 544, 548 (N.D. 1974) (allowing appeal from denial of class certification pursuant to statute permitting appeals from orders affecting substantial rights); Bell v. Beneficial Consumer Disc. Co., 348 A.2d 734, 736 (Pa. 1975) (holding class certification orders as final for purposes of an appeal statute) (but see Hanson v. Fed. Signal Corp., 679 A.2d 785, 787 (Pa. Super. Ct. 1996) (noting amendments to appeal statute and interpreting Bell as holding that such orders come within the collateral order exception to final judgment rule)); McAllen Med. Ctr. v. Cortez, 17 S.W.3d 305, 308 (Tex. Ct. App. 2000) (noting that class certification order is appealable pursuant to statute). {6} . If the named plaintiffs go forward and succeed on the merits, they would be able to appeal the denial of their class certification after the final judgment is entered. If they choose not to appeal that issue, it is likely that unnamed class members would want to take advantage of the successful outcome and initiate their own action. If the named plaintiffs in the instant action lose on the merits, they will be able to appeal the class certification issue at that time.

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