Page:Nealy v. Atlantic Recording (Certification Order).pdf/2

 action are limited to the three-year lookback period as calculated from the date of the filing of the Complaint pursuant to the Copyright Act and Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014).

The extent of recoverable damages is a controlling issue of law in this case and an immediate appeal from the Order may materially advance the ultimate termination of the litigation. Plaintiffs have indicated that because the vast bulk of damages being sought fall outside of the three-year lookback period, limiting Plaintiffs’ recovery to the three years prior to Plaintiffs filing suit will render this matter no longer practical to pursue. The parties agree that the limitation of damages is a controlling issue of law, and the Court concurs. See, e.g., Profit Point Tax Techns., Inc. v. DPAD Grp., LLP, No. 19-cv-698, 2021 WL 1967961, at *3 (W.D. Pa. May 17, 2021) (“A controlling issue of law is one that will end the litigation,” citing Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990), and “may also be found where the issue is serious to the conduct of the litigation, either practically or legally,” citing Katz v. Carte Balance Corp., 496 F.2d 747, 755 (3d Cir. 1974)); see also McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004) (“resolution of a controlling legal question would serve to avoid a trial or otherwise substantially shorten the litigation.”). An issue of law has also been termed controlling where, as is the case here, “the certified issue has precedential value for a large number of cases.” Klinghoffer, 921 F.2d at 24.

Further, a split of authority has developed among district courts on the applicable damages period, and consequently, there exists substantial grounds for a difference of opinion as contemplated by section 1292(b). The Court agrees with Defendants that the Supreme Court’s decision in Petrella is binding on this action and that, pursuant to the holding in Petrella, the three-year lookback for damages calculations must be applied despite operation of the discovery rule for