## Facts

- Multiple consolidated treble-damages antitrust actions were brought by electric utilities and other purchasers against electrical-equipment manufacturers, including General Electric Company, alleging unlawful overcharges from price-fixing and related conduct.
- Defendants served interrogatories aimed at discovering whether plaintiff utilities had shifted any overcharges to their electricity customers through regulated rates (a “passing-on” theory).
- Plaintiffs objected to the interrogatories, effectively disputing the relevance or availability of passing-on in treble-damages antitrust litigation.
- The district court sustained the objections and barred the requested discovery, while certifying the order for permissive interlocutory appeal under 28 U.S.C. § 1292(b).
- Defendants sought permission from the Second Circuit to take an interlocutory appeal from the certified discovery order.

## Issues

1. Whether the court of appeals should exercise its discretion under 28 U.S.C. § 1292(b) to permit an interlocutory appeal from a district court order sustaining objections to interrogatories directed to a passing-on theory.
2. Whether immediate review would materially advance termination of the litigation, given the size and complexity of the consolidated antitrust proceedings and the availability of post-judgment review.

## Decision

- The Second Circuit denied leave to take an interlocutory appeal.
- The court concluded it was not appropriate to decide this discrete legal question before any final judgment in the consolidated cases.
- The court reasoned that immediate review would delay, not expedite, the ultimate disposition of the litigation.
- The court emphasized that defendants’ ability to raise the issue would not be forfeited or prejudiced by waiting for review after final judgment.
- The court did not decide the substantive validity of passing-on as a limitation on antitrust damages.

## Legal Principles

- Permission to appeal under 28 U.S.C. § 1292(b) is discretionary and must be assessed in light of the entire case, including the risks of fragmented, piecemeal appellate review.
- Interlocutory review is generally disfavored where the disputed issue can be reviewed effectively on appeal from a final judgment without loss of rights.
- In complex, multi-party litigation, appellate courts may deny § 1292(b) review when an interlocutory appeal would complicate management and prolong proceedings.
- Courts may consider the practical burdens of the disputed issue (including whether it would generate extensive satellite litigation) in deciding whether immediate appellate intervention is warranted.

## Conclusion

The Second Circuit declined to permit a § 1292(b) interlocutory appeal from a discovery ruling tied to a proposed passing-on theory, holding that piecemeal review would hinder efficient resolution and that the issue could be addressed, if necessary, after final judgment.


Atlantic City Electric Co. v. Gen. Elec. Co., 337 F.2d 844 (2d Cir. 1964)