Overview
Yesterday, Judge Sweet denied defendant Perry Gruss’ motion (which we previously reported on) to certify for immediate appeal the court’s holding that Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010), did not bar SEC enforcement of Section 206 of the Investment Advisers Act even where the alleged fraud involved a foreign investor subject to a foreign securities regulatory regime. Judge Sweet held that the motion failed to meet the test for an immediate appeal for several reasons. First, it did not raise “purely legal questions but instead raises several factual issues, rendering certification inappropriate.” Second, Gruss failed to support his claim that resolution of the question might have a precedential effect on numerous cases across the country. Third, although the case presented novel and difficult questions, Gruss did not demonstrate that there was a substantial ground for difference of opinion regarding the court’s reasoning or ruling. Finally, an immediate appeal would not expedite ultimate termination of the litigation because even if successful, Gruss would still be required to defend against charges involving the same factual issues as those he sought to exclude through the application of Morrison.