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A data-breach class action in federal court turns on whether a federal privacy statute creates a private right of action. The district court denied the defendant's motion to dismiss, acknowledging a deep split among district courts and no controlling court-of-appeals decision. The order also rejected the defendant's alternative argument that the complaint failed to plead damages, a fact-intensive issue the court described as close.
The defendant asked the district court to certify the private-right-of-action ruling for interlocutory appeal. The court certified that issue under Section 1292(b), stating that it was a controlling legal question, that substantial ground for difference of opinion existed, and that immediate appeal could materially advance the case. The defendant filed a notice of appeal in the district court and stopped participating in discovery, arguing that certification automatically transferred the issue to the court of appeals and stayed the case.
Was the defendant's procedure correct? Discuss Section 1292(b), FRAP 5, the court of appeals' discretion, the difference between the legal issue and the damages issue, and whether proceedings are automatically stayed.