Next step for appeal unclear

It’s unclear whether the 2nd U.S. Circuit Court of Appeals in New York will rehear en banc its August ruling in United States of America v. Mathew Martoma, and experts disagree about its chances.

“The odds are always against it, especially in the 2nd Circuit, which hardly ever goes en banc, maybe once a year, so it’s an uphill battle,” said Jonathan E. Richman, a partner with Proskauer Rose L.L.P. in New York, adding that if he had to bet on the question, the answer would be no.

This may well be the one it takes, though, said Elizabeth Yingling, a partner with Baker McKenzie L.L.P. in Dallas. One reason is the “very well-reasoned and detailed and lengthy dissent,” she said.

Another is that it overrules a prior 2nd Circuit ruling. As a result, “I think there is a higher likelihood than normal that this could be heard by an en banc panel,” Ms. Yingling said.

While the odds of the appeals court rehearing the case en banc are better than average, “the trickier question is whether they’ll get Supreme Court review,” said Carolyn G. Nussbaum, a partner with Nixon Peabody L.L.P. in New York.

Ms. Nussbaum said she does not believe this will be the case “because the Supreme Court generally lets new issues kind of germinate a little bit to see whether a circuit split develops,” and the court only looked at this issue last year.