Just finished listening to the oral arguments in the Chattanooga Professional Baseball, Selane, and Mud Pie cases in the 9th Circuit. Great advocacy and an engaged and informed panel! Certification is definitely on the table. Judges Christen and Forrest explicitly said that they are considering certification. Judge Annello (from the California Southern District, sitting by designation) didn’t tip his hand. Insurer advocates emphasized the delay that comes from certification. Policyholder advocates emphasized the unfairness that would result if the court makes an Erie guess that turns out to be wrong.
