**Update:  Defendant CHS has filed a petition for writ of certiorari, here.**

Last year, something unusual happened in a business court case. In the course of denying summary judgment to a defendant, Judge Gale recognized that the legal question presented was “significant and controlling” and “require[d] an interpretation of two opinions from the North Carolina Supreme Court.”  Judge Gale “urge[d] the supreme court to docket the appeal” from his order in Kornegay Family Farms, LLC v. Cross Creek Seed, Inc., even though, as I’ve explained before, our appellate system has no explicit procedure for certifying debatable, controlling questions of law for immediate appeal.

The Supreme Court granted the defendant’s petition for writ of certiorari and heard arguments in the case earlier this month.

Judge Robinson apparently took note. In denying a defendant’s motion to dismiss for lack of standing in Dicesare v. Charlotte-Mecklenburg Hospital Authority, Judge Robinson likewise “urge[d] the Supreme Court to docket the appeal” should immediate review be sought by the defendant.

Dicesare is a purported class action alleging that certain contracts between the defendant hospital and insurance companies violate the antitrust provisions of the North Carolina Unfair and Deceptive Practices Act.  The defendant hospital moved to dismiss, arguing that the plaintiffs—as indirect purchasers of healthcare services—do not have standing to pursue their antitrust claim.  Judge Robinson recognized a dearth of North Carolina Supreme Court authority addressing the central question:  “the means by which our courts are to distinguish those indirect purchasers who have sustained actual injuries from those who have sustained injuries that are too rmote or attenuated to warrant relief.”

Against that backdrop, and after surveying the relevant federal and state authorities, Judge Robinson explained why immediate review would be appropriate:

In light of the heavy burdens imposed by the inevitable, complicated issues indirect purchasers must confront in establishing standing, the significant costs and expenses incurred by all sides should this case proceed through discovery, the unavoidable recurrence of this issue in future cases, and the impact this case could have beyond the parties to this litigation, a ruling from the Supreme Court on this issue would be of great benefit to the parties, the business community, the consuming public, and the lower courts of this State.

If the defendant hospital files a petition for writ of certiorari, we’ll let you know.

–Matt Leerberg